Bluejacket v. Southland Greyhound Lines, Inc.

71 S.W.2d 1107

• Court: Court of Appeals of Texas
• Decided: February 24, 1934
• Docket: No. 12953.
• Status: Published

Opinion

POWER, Justice.

On April 18, 1932, appellant, R. P. Bluejacket, filed a petition against the Southland Greyhound Lines, Inc., a corporation, and the Pickwick Greyhound Lines, Inc., a corporation, alleging, in substance, as follows: That prior to the 18th day of April, 1980, defendants, through their agents, jointly and severally, undertook a studied, willful, and malicious scheme to injure plaintiff and to destroy his business, and that, in pursuance to said willful and malicious scheme and design, defendants, through their agents, filed three complaints against the plaintiff with the district attorney of Tarrant county, alleging, in effect, that appellant was operating a bus line over highway No. 10 leading through Tarrant coiinty, and thence to Kansas City, Mo., and that the said appellant did not have at said time a certificate or permit from the railroad commission of Texas declaring that the public convenience and necessity require the operation of said motor vehicle; that in consequence of said complaints a warrant was issued by the county clerk of Tarrant county and placed in the hands of the sheriff of Tar-rant county and appellant was arrested and placed in the county jail.

These complaints were executed and sworn to by appellees’ agents on the 18th, 19th, and 20th days of April, 1930, and the criminal prosecution begun by said complaints was dismissed by tile judge of the county court on the 10th day of December, 1930.

The defendants answered, filing a special exception to plaintiff’s petition as follows: “Defendant further specially excepts to said petition for the reason that the same shows on its face that the cause of action set up and alleged therein is barred by tbe one year statute of limitation and of tbis exception defendant prays judgment of tbe court.” Tbis special exception was sustained by tbe trial court, and tbe appeal to tbis court is upon tbis single proposition.

Article 5524, of tbe statutes of tbis state, provides:

“There shall be commenced and prosecuted within one year after tbe cause of action shall have accrued, and not afterward, all actions or suits in courts of tbe following description:

“1. Actions for malicious prosecution or for injuries done to tbe character or reputation of another by libel or slander.”

Tbis suit was not commenced within tbe period of one year after tbe cause of action accrued. However, appellant contends that bis cause of action is not one for malicious prosecution but one for false imprisonment which would not come under tbe one-year statute of limitation. In tbis contention tbis court cannot concur. It is our opinion that the petition is one for malicious prosecution. It has been held that the difference between the two causes of action is fundamental. Tbis difference is briefly stated in 25 Corpus Juris, p. 444, as follows: “Put briefly, the essential difference between a wrongful detention for which malicious prosecution will lie, and one for which false imprisonment will lie, is that in tbe former the detention is malicious but under tbe due forms of law, whereas in tbe latter tbe detention is without color of legal authority.”

Tbis distinction was approved' in tbe ease of Hubbard, v. Lord, 59 Tex. 384, by the Supreme Court, and is followed by a further approval in an opinion by Judge Hickman of tbe Eastland Court of Civil Appeals in tbe ease of American Motors Finance Co. v. Cleckler, 28 S.W.(2d) 274.

Tbe cause of action alleged by plaintiff is a malicious detention, but under due forms of law. It cannot be said that bis imprisonment was without color of legal authority. Appellant’s cause, as alleged, was based on a willful scheme to destroy him and bis business, and, in effect, it was alleged that said scheme was followed up by “complaints,” “warrants,” and “imprisonment,” all of which could be and were pleaded as bis continuous damage by reason of the malicious prosecution. Tbe imprisonment in tbe case as alleged was an incident of such prosecution. Warwick v. First State Bank of Temple (Tex. Civ. App.) 296 S. W. 348. In the opinion of tbis court tbe petition is one for malicious prosecution, and, not having been filed within tbe statutory period provided by law, tbe judgment of tbe trial court is affirmed.