Bradstreet Co. v. Gill

• Decision Date: 27 November 1888
• Citation: 9 S.W. 753
• Parties: BRADSTREET CO. v. GILL.
• Court: Texas Supreme Court

Page 753

9 S.W. 753

BRADSTREET CO. v. GILL.

Supreme Court of Texas.

November 27, 1888.

Commissioners' decision. Appeal from district court, Bastrop county; TERCHMUELLER, Judge.

Action by Robert Gill against the Bradstreet Company for making a false report, January, 1885, regarding plaintiff's business standing. There was evidence that John M. Finney had received letters from defendant asking him to correct certain reports furnished him, and that he had done so. Plaintiff testified that he was cramped in business by the report complained of, and was compelled to refuse the custom of a prominent farmer on that account. Defendant contended that there was no evidence of damage to go to the jury, and also, in the twelfth assignment, that, if there was any evidence of damage, it was done by prior reports, and not by that complained of; and that the claim for damage for such reports was barred. Judgment for plaintiff, and defendant appeals.

Labatt & Noble and Fowler & Maynard, for appellant.

COLLARD, J.

The appellant, the Bradstreet Company, being a foreign corporation, was sued in Bastrop county, of this state, for damages for an alleged libel upon plaintiff, Robert Gill, a merchant in the town of Bastrop. The business of the Bradstreet Company is that of a commercial agency. It is a foreign corporation, and does business in the United States and in Texas. It is alleged in the petition that the company is a foreign corporation, and that John M. Finney is its local agent in Bastrop county. Defendant denied that it had any agent in the county, and pleaded in abatement to the jurisdiction of the court. The court instructed the jury "that the evidence shows that defendant has an agent in Bastrop county, and that the court has jurisdiction of the case." It is insisted that this charge is error, because there was evidence tending to show that defendant had no agent in the county, and that the charge was upon the weight of evidence. We think it was error to so charge the jury. The court should have instructed the jury that if Finney was employed or engaged by the company as its correspondent at the time the suit was brought to furnish it with information as to the commercial standing of merchants and business men in Bastrop county, to be used by the company in its reports to its customers and subscribers in conducting the business of the company, then he would be its agent, and, he being a resident of the county, the court had jurisdiction of the case. The letters of the company to Finney, coupled with the testimony that he made reports to it of the status of merchants in Bastrop, would support a finding that he was such agent; but there was other evidence which the jury might have considered, and from which they may have concluded that he was not engaged by defendant as its agent at the time the suit was brought. The question of agency or not should have been left to the jury. It would have been error to instruct the jury, as requested by defendant, that Finney was not its agent. It was error to instruct them that he was such agent.

The court refused a charge asked by defendant to the effect that if it was not the intention of defendant to make Finney its agent, and if it was not the intention of Finney to become its agent, to find for defendant on the plea in abatement. The refusal to give the charge is assigned as error. The intention of the parties, it is true, must control; but that intention is gathered from what was actually done or agreed by the parties, not from what they may have privately meant or supposed they meant. Agency or not is a question of law, to be determined by the relations of the parties as they in fact exist under their agreements or acts. If relations exist which will constitute an agency, it will be an agency, whether the parties understood it to be or not. Their private intention will not affect it. It was not error to refuse the charge.

The court overruled defendant's general demurrer to the petition. This ruling is assigned as error, because the petition does not set forth with sufficient certainty the alleged false reports; because it does not set forth with sufficient certainty the actual damages sustained by plaintiff; because it does not show whether plaintiff's suit is for libel or slander, and it does not show whether the suit is for actual or exemplary damages, nor how much is claimed as actual, and how much as exemplary, damages; and because "it fails to show that the defendant has an agency or representation, and principal office in Bastrop county." The petition does not set out in hæc verba the very language of the libel, but pretends to give its substance and meaning. Our rules of pleading require that the petition shall set forth "a full and clear statement of the cause of action, and such other allegations pertinent to the cause as the plaintiff may deem necessary to sustain his suit," etc. It has been many times decided by our courts that the common-law distinctions as to pleading, and its technicalities, do not prevail with us, but that a clear and logical statement of the cause of action is all that is necessary. A clear statement of the facts constituting the cause of action cannot, however be dispensed with. The character of the suit must be the guide to the pleader, and enough must be stated to constitute a cause of action. In a suit on a note it will be sufficient to state the substance and legal effect of the note. Not so in a suit for libel. A libel suit is based on language or its equivalent. The complaint in a libel suit should put the court in possession of the libelous matter published, — the language used, with such innuendoes as are necessary to explain what was meant by the language, — and to whom it applied, so as to enable the court to determine whether the words are actionable. In this case the complaint attempts to give the meaning of the words or libel only, without stating what the libel was. If the libel consisted in reporting plaintiff's standing as a merchant, "in blank," the complaint should have informed the court and the defendant of the fact, with such explanations as to what was meant by the report as were necessary to show that the report was injurious and defamatory. This is not a case where the pleader must, from the nature of the publication, resort to a verbal description of the slanderous matter, as it would be when movements, postures, or pictures are used. Plaintiff could have stated his cause of action as it was, in clear terms. He has not done so. It is not sufficient, in this kind of a suit, to state the substance of the language used, or its meaning. We believe the general demurrer ought to have been sustained. See Townsh. Sland. & Lib. §§ 329-335, inclusive.

The damages claimed by plaintiff are compensatory only. He suffered great damage in the conduct of his business and in his commercial standing. He does not ask for vindictive damages. The allegations of the petition were sufficient upon this subject. This is a suit for libel; it was unnecessary for plaintiff to so characterize it by averment.

In order to maintain the suit in Bastrop county, it was not necessary, as appellant seems to think, for plaintiff to allege that defendant had an agent or representative in the county, and that its principal office was also in the county. It was enough to allege that it had at the time the suit was brought an agent or representative in the county, or that the principal office was in the county. Either allegation was sufficient. The statute (act of March 31, 1885) in force at the time the suit was brought provides that foreign private or public corporations, doing business in this state, may be sued "in any county where the cause of action, or a part thereof, accrued, or in any county where such company may have an agency or representation in the county in which the principal office may be situated,...