Buck v. Savage

• Decision Date: 12 March 1959
• Docket Number: No. 13051,13051
• Citation: 323 S.W.2d 363
• Parties: Wallace A. BUCK et al., Appellants, v. Eldon SAVAGE, Appellee.
• Court: Texas Court of Appeals

Page 363

323 S.W.2d 363

Wallace A. BUCK et al., Appellants, v. Eldon SAVAGE, Appellee.

No. 13051.

Court of Civil Appeals of Texas, Houston.

March 12, 1959.

On Filing of Remittitur March 19, 1959.

Rehearings Denied April 16, 1959.

Dyche, Wheat & Thornton, and E. H. Thornton, Jr., Houston, for appellant.

J. Curtiss Brown and W. James Kronzer, Houston, and Hill, Brown, Kronzer & Abraham, Houston, of counsel, for appellee.

WOODRUFF, Justice.

Appellants, Wallace A. Buck and Lincoln Laboratories, Inc., prosecute this appeal from the judgment of the District Court wherein damages aggregating $85,000 were assessed against them in favor of appellee in a libel and slander suit, of which amount $60,000 was awarded as actual damages and $25,000 as exemplary damages. The cause being tried to a jury, judgment was entered pursuant to the verdict returned in answer to 41 Special Issues.

The facts showed that before the institution of this suit appellant, Lincoln Laboratories, Inc., for a number of years had been engaged through local salesmen in selling drugs to doctors, jobbers and drug houses in the central and southern parts of the United States, including the area of Ohio, Michigan, New York, Florida, Texas and Louisiana. Its home office was located in Decatur, Illinois, and its affairs were handled by appellant, Wallace A. Buck, the president and principal stockholder.

Early in 1949 appellee Savage was employed by appellant Buck as a salesman and division manager for Lincoln Laboratories, Inc., in Texas and Louisiana. In January, 1952, appellee was moved to Decatur, Illinois, and pursuant to a contract contemplating a five year period he was made sales manager and executive vice president of Lincoln Laboratories, Inc., in charge of personnel and sales promotion, at an annual salary of $15,000. As a part of his work appellee had access to the confidential files of appellant, including customer lists, cost studies and formulae used in its business. Late in 1952 an issue of policy developed between Mr. Savage and Mr. Buck concerning Mr. Savage's having authority to enter into contracts with prospective salesmen and, as a result, on January 21, 1953, appellee wrote Mr. Buck a letter outlining his grievances and suggesting that unless he was accorded more authority over the sales personnel 'a mutually satisfactory separation should be effected.' Extended discussions followed which proved inconclusive, and later a misunderstanding arose converning the time appellee should take his vacation and whether he was entitled to be paid for a vacation in excess of seven days. Another dispute arose about a deduction which was made from appellee's salary check without his consent to cover a loss occasioned the company by a salesman whom appellee had hired. About June 15, 1953, appellee Savage advised Mr. Buck he was tendering his resignation to become effective in 90 days. Thereafter appellee took a vacation of approximately 10 days or two weeks, returning to Decatur in the latter part of July. When he received his salary check he found that a deduction had been made for that part of the vacation in excess of 7 days. On July 30, 1953, after being told that he would not be paid for that part of his vacation he left a note on Mr. Buck's desk tendering his resignation to become effective immediately. Several conferences followed, but appellee never returned. Later, however, he was paid the amount which had been deducted.

It was shortly after this time, beginning in August, 1953, and continuing through December 18, 1953, that the oral and written statements giving rise to this suit were made and published. A more detailed statement of the contents thereof will be set forth in connection with the discussions that follow.

Within a few days after tendering his resignation on July 30, 1953, appellee moved his family to Houston and on September 23, 1953, he started in business selling about 25 pharmaceutical products to drug houses in the area in competition with Lincoln Laboratories, Inc. as well as other drug companies. Working with him were his wife and Carl Cade, a former salesman of Lincoln. Dow Hickam joined his firm five days later, followed by Jack Hitt about November 3, 1953. Both of teses men had been salesmen for Lincoln Laboratories until a short time before joining appellee's organization. At the time of the trial in February, 1956, which was less than two and one-half years after appellee had started his business, he had 16 salesmen in his employ, about half of whom had formerly been with Lincoln Laboratories; and his complete force consisted of about 25 people.

As grounds for recovery the appellee in his trial petition alleged that the following statements contained in the following writings were made concerning the appellee:

In a letter dated October 30, 1953, written by appellant Buck to Jack Hitt, reference was made to appellee as being 'ignorant', 'inexperienced, adolescent and hiving other unmanly aspects of character' with the further comment, 'Promises. How good are they? In fact, how good is his word?'

In another letter written by appellant Buck to Hitt, dated November 5, 1953, appellant referred to appellee as being completely 'unprincipled', 'engaged in a shoddy enterprise', 'an unworthy conniver' and 'a person who has no intention of carrying out any promise.'

Two letters written by appellant Buck to Carl Cade dated November 11 and December 16, 1953, respectively, wherein appellant referred to appellee as being 'disloyal' and acting 'treacherously while in our employ', and in stating by innuendo that he was not 'honest and forthright.'

Also a letter a December 18, 1953, written by appellant Buck to Hitt, stated that appellee was selling 'shoddy merchandise', 'using deceitful tactics' and becoming a 'shoddy, nervous, undernourished and overstimulated individual.'

Articles written by appellant Buck appearing in the appellant Company's bulletins dated September 12th and 19th. 1953, were sent to about 40 salesmen and officers of the company and its affiliates over a wide area. In the first of these appellee was spoken of in terms of 'disloyalty', and in the second reference was made to him as 'treasonable builders of mistrust' and 'bad faith.'

By their verdict the jury, in response to Special Issues Nos. 1 through 35, returned fact findings the effect of which established that each of the written statements herein-before set out was libelous and that they were made with actual malice toward appellee.

In addition the jury returned findings in response to Special Issues Nos. 36, 37 and 38, which found that an oral statement, hereinafter discussed, made by appellant Buck to Jack Hitt in August or September, 1953, was slanderous and that it had been spoken with malice toward appellee.

By their first Point, appellants assert that the Trial Court erred in admitting testimony, in refusing to strike it from the record, and in submitting Special Issues Nos. 36, 37 and 38 to the jury concerning the alleged slander, because there was no pleading or proof of special damages resulting to appellee in his office, business or profession. Appellee contends that the words spoken were slanderous per se and neither pleading nor proof of special damages was essential to his recovery.

In his first amended original petition, upon which appellee went to trial, the allegations of slander read as follows:

'And further in conversation with Mr. Hitt, Mr. Buck stated that Mr. Savage was 'queer' on Hickam, meaning an unnatural relationship between two men. The vile, vindictive, and untrue statements above set out of and concerning your Plaintiff caused him actual damages and exposed him to public hatred, contempt, ridicule and financial injury.'

The appellee, in his prayer for relief, sought a recovery in the sum of $175,000 'actual damages' and an additional amount of $75,000 as exemplary damages. Special damages were neither pled nor proven.

Appellee relied upon the testimony of Jack Hitt to establish the slander. He testified that while he was still in the employ of appellant during the latter part of August, 1953, he visited Mr. Buck in his home in Decatur, Illinois. On that occasion, so he testified, Buck 'talked about Mr. Savage's character and he said Mr. Savage was from the wrong side of the tracks and that his character wasn't--that he just didn't have any character, and he inferred that he and another fellow--he said they were going together.'

Upon being asked what words were used in that connection, the witness replied: 'He said that he felt that he was queer, and he and Hickam were going together.'

On cross-examination by appellants' counsel, the following transpired:

'Q. Now it was during this stay in his home as I understand your testimony on direct examination on yesterday by Mr. Brown, that Mr. Buck made the observation to you concerning Mr. Hickam and Mr. Savage you testified about on yesterday? A. Yes, sir.

'Q. Now you are positive that he made those observations to you? A. Yes, sir.

'Q. Was he talking about Mr. Hickam and Mr. savage?'

Mr. Brown, appellee's counsel, 'There were several statements made that the witness has testified to, I assume he is referring to one having to do with abnormality.'

'Mr. Thornton, appellants' counsel, 'That is correct.'

'A. I would say it dealt with morals.

'Q. No question in your mind about it? A. No 'Q. And he was very positive about Mr. Hickam, is that correct? A. Yes, sir.'

By their answers in response to Special Issues Nos. 36 and 37 the jury found that appellant Buck in talking to Jack Hitt stated that Savage 'was queer with respect to Dow Hickam' and by this term appellant 'meant an unnatural physical relationship as understood by the average person.' In response to Special Issue No. 38 the jury found that the word 'queer' was spoken by appellant Buck with actual malice toward Savage.

In this connection it should be noted that the defense of the truth of...