Clarence I. McFarlane and W. I. McFarlane, both of Richmond, H. O. Schulz and F. X. Joerger, both of Rosenberg, and Mathis, Teague & Mathis, of Brenham, for appellant. W. T. Bagby, of Hallettsville, D. R. Peareson, of Richmond, and Fly & Ragsdale, of Victoria, for appellee. and determined from the standpoint that its track had not been fenced at all. So considered, it would have been absolutely liable in damages to the appellee had one of its trains come in contact with appellee's mare and mule, but as the evidence wholly fails to show any such contact, the appellee failed to make out a case against it, and the peremptory instruction requested by appellant GRAVES, J. Laying the amounts thereof should have been given. The case appears to at $10,000 actual and $15,000 exemplary, have been fully developed, and it becomes the Max Stein, appellant, sued H. Greenebaum, duty of this court to render such judgment appellee in the court below for damages for as should have been rendered in the county malicious prosecution. In general substance, court. It is therefore ordered that the judg- and effect his petition alleged that Greenement of that court be reversed, and that judg- baum falsely, maliciously, and without reament be here rendered in favor of the appel-sonable or probable cause, made and swore lant. Reversed and rendered. STEIN v. GREENEBAUM. (No. 7558.) 1. MALICIOUS PROSECUTION to a complaint in writing before W. L. Davidson, county attorney of Ft. Bend county, Tex., charging Stein with the theft of three mules by bailee; that he was arrested under a warrant issued upon this complaint, and some days after giving bond for his appearance thereat was given an examining trial on such charge before the justice of the peace at Richmond, Tex.; that this trial resulted 71(2)-PROB- in his being discharged; and that the grand jury of Ft. Bend county subsequently investigated the charge and failed to find a bill of indictment against him. ABLE CAUSE QUESTION FOR JURY. In an action for malicious prosecution by one partner against another, the charge against plaintiff having been that he was guilty of theft of partnership property by bailee, question of probable cause held for the jury. 2. MALICIOUS PROSECUTION ON LEGAL ADVICE. Appellee, Greenebaum, in reply, after demurrer and denial, alike general, specially 22-ACTING pleaded that he had, prior to making and Where defendant, in suit for malicious filing the complaint, consulted and made a prosecution, before signing the complaint full, complete, and fair statement of all the against plaintiff, in good faith made a full, fair, facts known to him in good faith to his own and complete statement of the material facts known to him to the county attorney, and there- attorneys, who advised him that, under such after acted on such official's advice, he had an statement, appellant was guilty of theft by adequate defense to the suit for malicious pros- bailee; that thereafter, and still before makecution. ing and filing the complaint, he and his attorneys conferred with Hon. W. L. Davidson, county attorney of Ft. Bend county, and they together in good faith advised him of all the facts known to appellee concerning the charge, whereupon he was advised by the county attorney that appellant had committed the offense of theft by bailee, and he then, acting upon the advice at that time given him, made and signed the complaint against appellant so charging. 3. MALICIOUS PROSECUTION 71(4)-ADVICE OF COUNSEL-GOOD FAITH-QUESTION FOR JURY. In suit for malicious prosecution by one partner against another, the charge against plaintiff having been theft by bailee, the issue of defendant partner's good faith in placing the facts before the county attorney before making complaint held for the jury. 4. MALICIOUS PROSECUTION 64(1) DAMAGES-SUFFICIENCY OF EVIDENCE. In suit for malicious prosecution by one partner against another, plaintiff having been charged with theft by bailee, evidence on the question of damages held to furnish sufficient basis for recovery. 5. DAMAGES 49-MENTAL SUFFERING. By supplemental pleadings of both parties, issues were joined upon the matters thus pleaded; appellant further alleging that, if the county attorney did advise making of As a general rule, mental suffering, unac- the complaint, he had been induced to do so companied by actual injury to person or property, affords no ground for an action, ex- by false and fraudulent representations and cept where the wrong complained of is a willful concealment of the true facts in the case by one, intended by the wrongdoer to wound the appellee. At the close of the evidence, upon feelings and produce mental suffering, or one from which that result should be reasonably anticipated as a natural consequence. Lane, J., dissenting. motion of appellee, the court peremptorily instructed the jury to return a verdict for him, which was done, and judgment entered thereon accordingly, from which appellant Appeal from District Court, Ft. Bend Coun-prosecutes this appeal. ty; Samuel J. Styles, Judge. Such further statement as is deemed es Action by Max Stein against H. Greene- sential will be made in what follows: baum. Judgment for defendant, and plaintiff appeals. Reversed and remanded. With the pleadings as above outlined, the single question presented for this court's For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes part of the partnership agreement was that the notes would thus be credited to his firm, and so kept track of, but would in reality remain the property of that firm until finally settled by the makers. This feature of the case will be recurred to later on. determination is: Did the evidence disclose association; in other words, that an inherent such controverted issues of fact as should have been submitted, to the jury? Since all of appellant's assignments merely present this same general issue from different angles, it will be unnecessary to discuss each separately. The evidence is voluminous, and for the purposes of this judgment no attempt need be made to comprehensively digest it, but only so much as is thought sufficient to indicate the basis upon which this court's conclusions are grounded: From 1911 to 1915 I. Rheinstrom, H. Greenebaum and Max Stein, under the firm name of Rheinstrom, Greenebaum & Max Stein, were partners in the horse and mule business at Rosenburg, Tex., under an agreement that the two first named should furnish Stein the stock and money needed for carrying on the business, while he would do the work, manage and conduct it, and, after expenses were deducted, any profits realized would be divided, one half to him and the other half to them. During the four years of its existence the firm, under Stein's management, did a large amount of business, estimated by him at about $100,000; its dissolution taking place about February, 1915. There seems to have been no general settlement, adjustment, or accounting of its affairs between its members, either during continuance of the business, or at the time of the dissolution. I. Rheinstrom and H. Greenebaum also composed a separate firm at Hallettsville, Tex., which independently did business from there under the firm name of Rheinstrom & Greenebaum, in which Stein was not a member. Stein lived at Rosenberg, Ft. Bend county, Greenebaum at El Campo, Wharton county, and Rheinstrom at Hallettsville, Lavaca county. The firm at Hallettsville kept there the books and accounts and preserved the record of the business done by the Rosenberg firm, the general course of dealings back and forth between the partners being substantially this: Whenever Rheinstrom & Greenebaum, of Hallettsville, furnished money or stock to Stein for the business at Rosenberg, they charged the Rosenberg firm with them on the books so kept, and whenever Stein, for the latter firm, sold any stock and remitted to the former at Hallettsville the proceeds thereof in money and notes, they likewise credited the Rosenberg firm therewith upon these books. Upon the dissolution of the firm in February, 1915, there was considerable difference between the claims of the parties as to which was indebted to the other; Stein claiming that the firm was indebted to him, and Rheinstrom & Greenebaum claiming that Stein was indebted to them. There was also considerable joint property undisposed of, and shortly after the firm quit business appellee, Greenebaum, in order to get jurisdiction for that purpose in Lavaca county, where his other partner, I. Rheinstrom, lived sued him and Max Stein in the district court of that county for an accounting and settlement of the partnership affairs of Rheinstrom, Greenebaum & Max Stein. Auditors were appointed by the court to go over the partnership accounts, and filed their report in the fall of 1915, showing the firm to be indebted to Max Stein about $5,000. The complaint against Stein was not filed until January 13, 1916; his examining trial and discharge following on February 1, 1916. Arising out of these general relationships recited, the particular transaction which formed the basis of the prosecution complained of was, as we understand it, in substance, as follows: In the course of the partnership business Stein sold four mules to a Mr. West for $775, for which West gave his otherwise unsecured note with a Mr. Dvorak as indorser; Stein making the note payable to the firm of Rheinstrom, Greenebaum & Max Stein, and no lien upon the mules being retained therein. Stein sent this note to Rheinstrom & Greenebaum at Hallettsville, to keep a record of, and they, after indorsing the firm name of Rheinstrom, Greenebaum & Max Stein upon it, returned it to him with instructions to go sell it and get the cash for it. This he did by negotiating it to the Rosenberg State Bank; all the money therefor being received by Rheinstrom & Greenebaum. Appellee claimed, however, that the note had first been duly credited to the Rosenberg firm. At or subsequent to maturity, Mr. Dvorak, Stein maintained, however, and so testi- the indorser, paid the bank $500 or $600 on fied, that such money and notes were not de- the note, after which it brought suit against livered to Rheinstrom & Greenebaum in set- the maker and indorsers for the balance due. tlement for the stock sold, but only to enable This balance was subsequently paid by them to keep a record of all the notes sent Rheinstrom & Greenebaum, and amounted at to them for the firm of Rheinstrom, Greene- the time they took it up to $298.55. The note baum & Max Stein, and if the notes were not thus came back again into their hands, and paid, or should happen to be lost, they were they then sent it to Rosenberg for settlement charged back to the Rosenberg firm, and any with West and Dvorak, through Mr. Joerger, losses thereon were to be borne one half by according to the testimony for appellee, himself and the other half by his two part- while Stein said it was through himself di been turned over to Stein and he effected the settlement by taking back three of the mules it had been originally given for. These are the three mules he was charged with having stolen. Subsequently he sold two of them to Foss Bros. for $265, $135 cash, and $130 in a note made payable to the firm of Rheinstrom, Greenebaum & Max Stein, keeping the third one in his own possession. At this point it may be stated that the undisputed evidence showed the filing of the complaint, Stein's arrest and discharge upon an examining trial before the justice of the peace and the failure of the grand jury, after investigating the charge, to indict him. [1] We think the court erred in taking the case from the jury, and mainly upon these considerations: If the testimony of Max Stein as to the terms of the partnership agreement was true, and in its vital feature it seems to us to have been well-nigh corroborated by the bookkeeper of his two associates, then the mules he was charged with having stolen were the property of his firm, or assets of their unsettled business, and as a member thereof he had the legal right either to sell or keep them in his possession. In such circumstances, it could not be said, nor do we understand appellee to so contend, that he would have had probable cause for making this complaint. His insistence is that, since Rheinstrom & Greenebaum paid the balance due on the West-Dvorak note to the Rosenberg State Bank, this note became their property, and that Stein had no interest therein, and for that reason the mules, having been taken in settlement of that note, or the balance due thereon, were the property of Rheinstrom & Greenebaum, and not the property of Rheinstrom, Greenebaum & Max Stein. Greenebaum, they were supposed to give the Concerning the same matter Mr. Tippett, the bookkeeper for Rheinstrom & Greenebaum at Hallettsville, testified: "This stock was sent down here and sold to him, and he was charged with it; and when he with it. Every note, as soon as it was sent to sold it and sent the note back, he was credited our office, although payable to Rheinstrom, Greenebaum & Max Stein, became the property of Rheinstrom & Greenebaum, and the proceeds that were obtained from the sale of the notes belonged to Rheinstrom & Greenebaum. if a note, after being sold, was not paid, it was returned to us, and we had to take it up. We charged it back to Mr. Stein. If Rheinstrom & Greenebaum had to take the note up, we charged it back to the account of Rheinstrom, Greenebaum & Max Stein." But We As has been suggested from other parts of the record, these excerpts from the testimony of the two witnesses quoted disclose and emphasize the main difference in the positions of the parties to this litigation with reference to the ownership of the mules and the notes. Appellee himself does not seem to have testified upon the particular point, but has throughout the proceedings assumed the same attitude as this of his bookkeeper. Boiled down, the sum and substance of that contention is that, when the firm of Rheinstrom, Greenebaum & Max Stein sent the note in issue to Hallettsville and received credit for it upon the books of Rheinstrom & Greenebaum, according to the usual course of their mutual business in that regard, it was from that moment freed from any interest of the Rosenberg firm in it, and became the absolute property of the Hallettsville firm to do with as the latter pleased. think, if this were true at all, it could only Upon the terms of the partnership and be so technically, or as a mere matter of their conduct of the business under them, bookkeeping, and that, whatever may have the general substance of Stein's version is been the status of the note during the time given in these extracts from his testimony: it was held by the bank, when it came back "The firm of Rheinstrom & Greenebaum again into the hands of Rheinstrom & Greenecharged me with stock that was by them delivered to the firm of Rheinstrom, Greenebaum & Max Stein, and whenever I sent him (Rheinstrom & Greenebaum) cash and notes they were supposed to give me credit for it. The cash and notes received by the firm of Rheinstrom, Greenebaum & Max Stein for stock sold were not delivered to the firm of Rheinstrom & Greenebaum in settlement of such stock. I did not say that it was delivered in settlement of it. It was done to keep a track of all the notes. It was just to keep every note, and whenever these notes were collected and paid up they were supposed to give me credit for them. Yes; they were supposed to give me credit whenever the notes were settled. If I sent in $500 or $1,000, they would give me credit for it. They were supposed to keep a record of all the notes that were sent to them for Rheinstrom, Greenebaum & Max Stein, and, if the notes were not paid, they would be charged back to the firm. If a note was lost it was charged back, and each was to bear one-half of the loss." "If I sold a pair of mules for $600, and took $100 in cash and a note for $500, and delivered the note and money to Rheinstrom & should baum, it was placed for the balance due thereon exactly as it had been before the sale to the bank, and as between them and Stein, or Stein's firm, was subject to the actual terms of their partnership agreement. In that situation, those terms, even according to appellee's own bookkeeper, were that the note was then charged back to Stein and his firm; that is, necessarily was considered the latter's property. As we view the matter, conceding that, when first sent in to them, the full amount of the note had been credited by Rheinstrom & Greenebaum to Stein's firm, such credit did not, as between the three partners, if Stein's allegations and testimony be true, amount to an absolute sale of it to the former, and thus emancipate it from the agreed condition under which that credit was to be made; that is, that Stein's that is, that Stein's interest in it not be extinguished until final pay ment of the note by its maker. In other 'words, if the terms of the partnership were what Stein said they were, and, of course, with that this court has nothing to do, the leaven of the understanding that his interest in all notes delivered to and so credited by his associates to his firm was not to pass out of them until final payment thereof by the makers would leaven the whole lump of the dealings between the three concerning any particular note, no matter what was done with it in the meartime. While in the hands of the bank, indorsed as it was by Stein's firm, the note was undoubtedly a firm liability, notwithstanding the fact that the money for which it had been sold all went to Rheinstrom & Greenebaum; then, after the latter, in practical effect, took part of the same money, paid to the bank the balance due thereon, and, even under their own bookkeeper's statement, were due to charge that balance back to the account of Rheinstrom, Greenebaum & Max Stein, how can it be said that the note was not an asset of that firm as to the balance so to be charged? And it need not be repeated that if the note, or the mules for which it stood, did belong to the partnership, there was a consequent lack of probable cause for the criminal prosecution; to say the least of it, the facts were in controversy, the evidence was conflicting, and the question of probable cause should have been submitted to the jury. Glascow v. Owen, 69 Tex. 169, 6 S. W. 527; Porter v. Martyn, 32 S. W. 732; Sebastian v. Cheney, 86 Tex. 497, 25 S. W. 691; Equitable Life Assurance Society v. Lester, 110 S. W. 499; Jacobs v. Crum, 62 Tex. 408; 25 Cyc. pp. 29 and 31; Ramsey v. Arrott, 64 Tex. 323. [2] Leaving the question of the ownership of the note, we recur to the main defense interposed by appellee-that he acted upon advice given him by the county attorney. It is conceded by appellant that this would have been an adequate defense, if appellee had in good faith first made a full, fair, and complete statement of all the material facts known to him at the time to the county attorney, and thereafter had acted upon that official's advice based thereon; indeed, such seems to be the well-settled law. Lenoir v. Marlin, 10 Tex. Civ. App. 376, 30 S. W. 566; Burgess v. Singer Mfg. Co., 30 S. W. 1110; Brady v. Georgia Home Ins. Co., 24 Tex. Civ. App. 464, 59 S. W. 914; Rogers v. Mullins, 26 Tex. Civ. App. 250, 63 S. W. 897. [3] The question then is: What was done in this instance? The appellee himself testified: * * I made a report, and I heard Mr. Rheinstrom say that their auditor had said that we were indebted to Max Stein in the sum of $2,000 or $2,500, possibly $3,500. I heard that before I filed the complaint against him. didn't go to Hallettsville and look over the auditor's report, to see whether or not it was correct, or to see whether or not I owed Max Stein. Stein. I filed the complaint against him, because I was mad at him. I never talked to a living soul about it, except Mr. Ragsdale, before filing the complaint. I did not talk to anybody about it, but Mr. Ragsdale, before I filed the complaint." "I came to Rosenberg and Ft. Bend county with the intention to file a complaint against him. My intention, before I came to Rosenberg, was to file a complaint if I didn't get the mules, and I didn't get them. I could not get them by suing for them." Mr. Bagby, appellee's attorney, testified: the conversation I had with Max Stein in "I did not tell Maj. Davidson the details of Houston. I told Maj. Davidson only that Max Stein had refused to tell what disposition he had made of the mules of the proceeds of the mules. He would never tell me to whom he had sold the mules. I did not tell Maj. Davidson that same detailed statement that I told this jury. I told Maj. Davidson only that Max Stein had refused to disclose to whom he had sold the mules, and what disposition he had made of them; that is the only statement I made to him." "I knew something about the audit. I did not tell him that this note had gone into the audit of the partnership matters of that firm of Rheinstrom, Greenebaum & Max Stein. I do know now that the note went into this audit. I don't know that I knew it at that time, but I presume I did. I did not tell him that. I did not tell him that the audit showed that the firm owed Max Stein several thousand dollars, because if that note was in there, regardless of who put it in there, as a matter of law it did not belong there, in my judgment, and it did not concern this transaction, whether it was or was not in there. I did not tell Maj. Davidson about that. I told him that Max Stein refused to deliver the mules. Max told me in Houston that he did not have any interest in the mules. He claimed he was going to keep the exchange (meaning the proceeds for which Stein claimed to have sold the mules) until the settlement of the suit. I did not tell Major Davidson this. Max Stein claimed to me he was going to keep the exchange until the termination of the suit at Hallettsville between Rheinstrom & Greenebaum and himself, and in that connection I told him that they were liable for them, and, if the mules were not theirs, they were liable to him for whatever amount it was, and he said that that was the reason he was holding it. I did not tell Maj. Davidson about the pending suit. Max Stein did not claim the title. I did not tell Maj. Davidson that Max Stein said he was holding the property until the termination of the suit. I told him he had converted the mules and had declined to tell where the mules were or the proceeds thereof." So that, if there was an issue or could have been two ways of thinking by reasonable minds, over whether or not the West and Dvorak note was either the property or part of the unsettled assets of the Rosenberg firm, confessedly the county attorney was not given a full and fair statement of "I did not tell Maj. Davidson that I had lawyers here to bring a civil suit to take the mules. I did not tell him anything about any partnership arrangements I had with Max all the material facts, because both appellee Stein. I did not tell him that a suit had been and his attorney thus admitted that they brought for a partnership accounting." "I told him nothing about any of the partnerdidn't tell him anything about the auditor's re- ship arrangements with Stein, nor port. I didn't tell him that the auditor's report showed that I was indebted to Max Stein. I that a civil suit had been brought for an already for some months on file therein showed his firm then owing Stein about $5,000, and that, when the mules had been demanded of Stein, he said he was holding them until the termination and settlement of that suit; indeed, although confessing their previous knowledge of all the facts mentioned, they further testified that the sum and substance of what they really told Maj. Davidson, the county attorney, was that Stein had no interest in the mules, but had converted them to his own use and benefit, and declined to tell where they or the proceeds were. Manifestly, in such circumstances as these, under the authorities cited, the advice of the county attorney would not afford immunity, and the issue of appellee's good faith, under all the facts, should have gone to the jury. [4, 5] Upon the question of damages, we think the evidence furnished sufficient basis for a recovery. While as a general rule mental suffering, unaccompanied by actual injury to person or property, affords no ground for an action, there are certain wellrecognized exceptions, as where the wrong complained of is a willful one, intended by the wrongdoer to wound the feelings and produce mental suffering, or from which that result should be reasonably anticipated as a natural consequence. The authorities upon this question were reviewed and differentiated by this court in the recent case of Sisler v. Mistrot, 192 S. W. 565. See, also, Davidson v. Lee, 139 S. W. 907; Leach v. Leach, 11 Tex. Civ. App. 699, 33 S. W. 703; Carter v. Oster, 134 Mo. App. 146, 112 S. W. 995. From the conclusions stated, it follows that the judgment must be reversed, and the cause remanded for another trial, and that order has been entered. Mr. Associate Justice LANE dissents, and will himself write his views. Stein, for the sale of horses and mules, with its place of business at Rosenberg, Ft. Bend county, Tex., said firm to be composed of the Hallettsville firm, as one party, and Max Stein, the other party, which is hereinafter called the "Rosenberg firm." The agreement by which the Rosenberg firm was established was substantially as follows: The Hallettsville firm agreed to furnish the horses and mules for the Rosenberg firm, and Max Stein was to dispose of the same at a profit; each of the partners, the Hallettsville firm representing one, and Max Stein the other, was to receive one-half of the profits of the business. It was further agreed that the Hallettsville firm should employ a bookkeeper jointly for both firms, which it did in the person of the witness Tippett. It was agreed that, whenever the Hallettsville firm furnished horses and mules to the Rosenberg firm, said firm was to be charged with the value agreed upon between the two firms; that when said stock was sold by the Rosenberg firm the proceeds of such sale was to be sent to the Hallettsville firm, and the Rosenberg firm was to be credited for the amount of such proceeds, and the same became the property of the Hallettsville firm. If any portion of such proceeds were notes of the purchasers of said stock, the Rosenberg firm guaranteed the payment thereof, and if said notes or any part of them were not paid, and a loss was thereby sustained, such loss was to be charg ed back against the Rosenberg firm. During the existence of the Rosenberg firm, Max Stein, for said firm, received from the Hallettsville firm certain mules, for which the Rosenberg firm was charged on its books their agreed value. Thereafter he sold four of these mules to a Mr. West for a note of $775, with Mr. Dvorak as surety for West. This note, indorsed by the Rosenberg firm, Reversed and remanded; Associate Jus- was sent to the Hallettsville firm, and the tice LANE dissenting. LANE, J. (dissenting). I am unable to agree with the majority of the court in their statement of the case, their fact findings, or the final conclusions reached by them. I shall therefore make a statement of the case as I understand it, and shall also present my findings of fact, which I think are supported by the undisputed evidence, and my reasons generally for my conclusion that the judgment of the trial court should be affirmed. I. Rheinstrom and H. Greenebaum are parties composing the firm of Rheinstrom & Greenebaum, long engaged in the business of selling and trading horses and mules, with their principal place of business at Hallettsville, Lavaca county, Tex., hereinafter, for convenience and identity, called the "Hallettsville firm." This Hallettsville firm, some time in the year 1911, agreed to and did form a firm or copartnership with appellant, Max Rosenberg firm was credited with the face value of the same. After the Hallettsville, firm had received this note, it was by them sent to Max Stein, of the Rosenberg firm, with instructions to sell it to the Rosenberg Bank. The note as indorsed was sold to said bank for $775, and the proceeds sent to the Hallettsville firm. After the Rosenberg Bank became the owner of the note, West, the maker, paid $500 or $600 thereon to the Rosenberg Bank, but having failed to pay the balance, the bank called on the Rosenberg firm for payment of such balance. Mr. Rheinstrom, of the Hallettsville firm, instructed the bank to sue the maker and his surety on the note, and make the Rosenberg firm party to the suit, so that judgment might be taken in favor of said firm for any sum it might have to pay by reason of its indorsement over against West and Dvorak. (See statement of facts, bottom of page 52). After these proceedings the bank drew a draft on the Hallettsville firm for $298, which |