Cyrus W. Scott Mfg. Co. v. Millis

• Decision Date: 22 December 1933
• Docket Number: No. 9913.,9913.
• Citation: 67 S.W.2d 885
• Parties: CYRUS W. SCOTT MFG. CO. v. MILLIS.
• Court: Texas Court of Appeals

Page 885

67 S.W.2d 885

CYRUS W. SCOTT MFG. CO. v. MILLIS.

No. 9913.

Court of Civil Appeals of Texas. Galveston.

December 22, 1933.

Rehearing Denied January 11, 1934.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by C. C. Millis against the Cyrus W. Scott Manufacturing Company. Judgment for the plaintiff, and the defendant appeals.

Reversed and judgment rendered for the defendant.

C. A. Teagle, of Houston, for appellant.

Henderson, Copeland & Shenk and Devereaux Henderson, all of Houston (James A. Copeland, of Houston, of counsel), for appellee.

LANE, Justice.

This suit was instituted by C. C. Millis against Cyrus W. Scott Manufacturing Company, a corporation. The suit is an action in libel and slander and is based upon a letter, copy of which is hereinafter shown.

Defendant pleaded a general denial and specially alleged that this communication, upon which plaintiff based his suit, was qualifiedly privileged and was written without malice, and that the material parts of the alleged libel were true.

It was shown that plaintiff was at one time an employee of the defendant and that he had voluntarily resigned his employment; that shortly thereafter the A. B. Frank Company of San Antonio had received an application from plaintiff, Millis, for employment and that the A. B. Frank Company wrote a letter to defendant, and to others, former employers of plaintiff, making inquiry as to the ability of plaintiff as a salesman, etc. The letter was addressed to defendant, at Houston, and was replied to by Mack A. Walker, sales manager for defendant, in a letter addressed to Henry Carr, sales manager for the A. B. Frank Company, in care of said company at San Antonio, Tex. Said letter was dated July 6, 1931, and was in words as follows:

"Sorry not to be able to recommend Mr. C. C. Millis as a salesman. He was with us about eight months starting in July, 1930. During the early part of his engagement he left nothing to be desired, worked hard and consistently and booked a fair volume. He started down hill in November when things began to get tough and from then on until the end he seemed to have a well developed lazy streak; did not work regularly and was disinclined to follow instructions, in fact was simply N. G. When he severed his connection his account was in an overdrawn condition and instead of manlike bringing in his line and talking matters over, mailed his resignation and sent in the line by messenger. We have seen or heard nothing from him since that time. He has a likeable personality and is a good salesman if you can keep him working, but under the circumstances we cannot recommend him.

                     "Sincerely yours
                         "Cyrus W. Scott Mfg. Co
                              "[Signed] Mack A. Walker
                "MAW.V.                 Sales Manager."
                

The case was tried before a jury. At the close of the evidence, defendant requested the court to instruct a verdict for it, which request was refused and the case was submitted upon special issues, in answer to which they found that Mack A. Walker, in writing the letter in question, was acting as the agent of defendant, was acting within the scope of his authority, and that in writing such letter he was actuated by actual malice, that they do not find from a preponderance of the evidence that the facts stated in the letter were substantially true.

Special issue No. 5 was as follows:

"What sum of money if any do you find from a preponderance of the evidence, if paid now in cash, will fairly and adequately compensate the plaintiff for his injuries, if any, which he sustained and which were proximately caused by the acts of Mack A. Walker in writing the letter of July 6th, 1931, to Henry Carr, of A. B. Frank Company, San Antonio, Texas, taking into consideration the following elements of damage and none other.

"1. Injury to plaintiff's reputation therefrom if any.

"2. The reasonable value of the loss of earnings therefrom, if any, from July 7th, 1931, down to the date of this trial.

"3. The reasonable present cash value of the loss of earnings therefrom, if any, which you may find plaintiff will in reasonable probability suffer in the future, and beyond the date of this trial.

"4. Mental suffering and anguish therefrom, if any, from July 7th, 1931, down to the date of this trial.

"You will answer by stating the total amount in dollars and cents if any, as you find the facts to be."

In reply to such inquiry, they answered $10,000.

In connection with the inquiry as to whether M. A. Walker, in writing the letter, was actuated by actual malice, the court instructed the jury as follows:

"In connection with the foregoing special issue, you are instructed that by the term "actual malice" as used in this charge, is meant ill will, bad or evil motive, or such gross indifference to the rights of others as will amount to a wilful or wanton act.

"You are further instructed that malice in this case cannot be inferred from the fact that the letter in question was written by Walker to A. B. Frank Company, nor can you consider the language in the letter in arriving at or determining whether or not Walker was actuated by actual malice in writing it."

Defendant requested the court in writing to submit to the jury several special inquiries, which shall be hereinafter stated, all of which were by the court refused. Upon the verdict of the jury, the court rendered judgment for the plaintiff against the defendant for the sum of $10,000 to bear 6 per cent. interest per annum from its date. From such judgment, the defendant has appealed.

Mack Walker, a nonstockholder in the defendant company, but only its sales manager at the time he wrote the letter upon which appellee bases his suit, was called as a witness by the plaintiff. He was not, however, at the time of the trial of this suit a stockholder in the defendant company, an officer, nor employee of said company, nor was he a party to the suit, nor in any manner pecuniarily interested therein. Counsel for the plaintiff, over the objection of counsel for the defendant, was permitted to ask the witness (Walker) leading questions and he was required to make answers thereto. Appellant contends that the action of the court in overruling its objections constitutes reversible error. We have carefully examined the questions asked and have reached the conclusion that the court committed no reversible error by its ruling. There are but few of the questions shown in appellant's brief to which objections were made which can be properly classed as leading. In view of the fact that the answers of the witness to the leading questions complained of were all favorable to appellant, the propounding of them was harmless, and therefore the action of the trial court in permitting counsel to ask them, if error, constitutes no reversible error.

The plaintiff alleged in his petition that defendant, through its agents, Mack Walker and E. J. Surman, stated to L. Furman of Navasota, Tex., that he (plaintiff) was lazy, good for nothing, and would not work or call on the trade or customers properly as he should and that the customers could not expect any service from him. That Mr. Millis was simply no good.

Counsel for plaintiff was permitted, over objection of the defendant, to ask plaintiff's witness, Mack Walker, if he did not state to C. T. Reifschneider "that he plaintiff is lazy and good for nothing and will not work or call on the trade or customers properly as he should and that the customers could not expect any service from him."

The objection made to this testimony sought by the question was that there was no predicate in the pleading on which to base such testimony. The defendant's objection was overruled and the witness, Walker, was permitted to and did, in answer to the question propounded, state that he made a part of the statement attributed to him by the question and a part of it he did not make. He was then asked, "Did you say (to Reifschneider) that he (plaintiff) was lazy?" In answer to such question the witness was permitted to and did say: "I might have implied that by saying he did not make his territory and cover the ground fully. Whether I used that word I am unable to remember."

The appellant assigns the action of the court in permitting the question to be asked and in admitting in evidence the answer of the witness thereto as reversible error.

We think appellant's objections to both the question and answer thereto should have been sustained.

The plaintiff was suing for slander and he alleged that L. Furman was the party to whom the alleged slanderous words were spoken, but the court allowed counsel for the plaintiff to prove that what was said was said to C. T. Reifschneider who was not named in the petition of plaintiff as the person to whom the words were spoken. It is clearly apparent that there was a variance between the allegations of the petition and the testimony offered and admitted. Vacicek v. Trojack (Tex. Civ. App.) 226 S. W. 505; Clark v. Munsell, 6 Metc. (Mass.) 373; Chapin v. White, 102 Mass. 139.

No predicate was laid in pleadings or the evidence to show any authority on the part of the witness Walker in making such verbal statements to Reifschneider, and no predicate laid by which the defendant corporation could be bound by such statements on the issue of slander.

The slander charged was words spoken by an employee of the defendant corporation, and in such case it is necessary to allege and prove that such act of the employee was authorized by the corporation or that it was ratified by it before it can be held liable for the words spoken. 17 R. C. L. page 383, § 135; Behre v. National Cash Register Company, 100 Ga. 213, 27 S. E. 986, 62 Am. St. Rep. 320; Odgers on Libel and Slander, p. 368; Washington Gaslight Company v. Lansden, 172 U. S. 534, 19 S. Ct. 296, 43 L. Ed. 543.

In 17 R. C. L., § 135, supra, it is said: "Thus the strict rule has been laid down that a corporation is not liable for...