Evans v. McKay

• Decision Date: 12 April 1919
• Docket Number: (No. 8018.)
• Citation: 212 S.W. 680
• Parties: EVANS v. McKAY.
• Court: Texas Court of Appeals

Page 680

212 S.W. 680

EVANS v. McKAY.

(No. 8018.)

Court of Civil Appeals of Texas. Dallas.

April 12, 1919.

Rehearing Denied May 31, 1919.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by R. L. McKay against E. Evans. Judgment for plaintiff, and defendant appeals. Affirmed.

W. L. Crawford, Bern Wilson, and Ellis P. House, all of Dallas, for appellant.

Geo. Clifton Edwards and Carden, Starling, Carden, Hemphill & Wallace, all of Dallas, for appellee.

RASBURY, J.

Appellee sued appellant, alleging that she was engaged in lending money at usurious and oppressive rates of interest in the name of the Model Loan Company, which she pretended was owned by another, to recover actual and exemplary damages charged to have been the result of appellee's discharge from the service of the Houston & Texas Central Railroad Company through the wrongful, fraudulent, and malicious conduct of appellant and her agents. Appellee, as basis for his suit, alleged that, while appellee was employed by said railroad company, and while said company had in force a rule that any employé who assigned his salary would at once be discharged from its service, appellant, with knowledge thereof, wrongfully, willfully, maliciously, in wanton disregard of appellee's rights, and for the purpose of effecting his discharge, notified the railroad company in writing that she held an assignment of appellee's salary, coupled with power of attorney to collect same, and falsely claimed that appellee was indebted to her in the sum of $22, in consequence of which he was discharged from the service of the railroad company and the wage then due him withheld. Appellant, after many exceptions, on some of which the action of the court is to be considered in this opinion on the merits, denied ownership of Model Loan Company, alleging that she was merely an employé of that concern, but that appellee did owe her $22 and did execute and deliver to her in security thereof an assignment of his salary, coupled with power of attorney to collect, but that she never gave the notice of that fact to the railroad company or authorized it or ratified the act of any person in so doing, either in her name or in the name of the Model Loan Company, and was guilty of no act tending to injure appellee. There was trial to jury, to whom the issues of fact were referred for special verdict in form of the usual interrogatories, upon the answers to which judgment was awarded appellee for $1,400 actual, and $2,800 exemplary damages. From that judgment this appeal is prosecuted.

We make no general statement of the pleading and the facts for the reason that to do so would result, as to the pleading, in unnecessary duplication, since there are numerous assignments, often repeated, attacking the pleading which must be considered, and, as to the facts, for the reason that the sufficiency of the evidence as a whole to sustain the verdict is not challenged, though as to certain issues that claim is made, in which cases we will review the evidence to the extent required. Counsel on each side of the controversy frankly admit that the issues are simple and few, one of them declaring that the real issues are but four, yet counsel for appellant present 57 assignments of error, many of them repetitions, in a printed brief of 196 pages, which are met seriatim by as many counter propositions by counsel for appellee in a printed brief of 141 pages. To follow the manner of presenting the case in the briefs would extend this opinion to a length beyond toleration, which as a consequence makes it necessary for us to segregate the issues as such from the assignments and perform the work imposed by the rules upon counsel.

Appellant first assigns as error the action of the court in overruling her general demurrer; the precise point being that the petition was insufficient because it did not set out in hæc verba the writing alleged to contain the false claim that appellee was indebted to appellant. The allegation was that appellant "wrote, published, and caused to be delivered to Houston & Texas Central Railway Company * * * a statement in writing, wherein the defendant * * * alleged and stated that the defendant had an assignment of wages and power of attorney on him, the plaintiff, to the extent of $12, providing for an attorney's fee of $10 additional." By appropriate allegations the innuendo intended by the notice was shown, that it was done maliciously, and the claim made that appellee was not indebted to appellant in any sum, but as result of the notice he was discharged, etc. The allegations quoted disclose within the meaning of the statute a libel. Article 5595, Vernon's Sayles' Civil Statutes. As a consequence the rules for pleading libel are to determine the sufficiency of the allegations quoted. While the common-law distinctions and technicalities do not obtain in our practice, clear and sufficient allegations of the facts constituting the cause or defense is required, and what is required depends in a large measure upon the character of the suit. "A libel suit is based on language or its equivalent. The complaint * * * should put the court in possession of the libelous matter published, the language used, * * * so as to enable the court to determine whether the words are actionable." Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768. The reason for the rule which requires the language used to be set out is that the court may determine whether its use imposes liability and that the defendant may be advised concerning the exact charges he will be called upon to meet. 17 R. C. L. 390. The question then is: Did the allegations quoted comply with the rules? We think they did. It is alleged that appellant wrote, published, and delivered to appellee's employer a statement in writing wherein the defendant alleged and stated that she "had an assignment of wages and power of attorney on him, the plaintiff, to the extent of $12, providing for an attorney's fee of $10 additional." The allegations do not purport in the least to give the substance and meaning of the language written and published. On the contrary, it is charged directly and specifically that appellant wrote and delivered to appellee's employer the exact and precise statement set out in the pleading. It is our opinion that the rule is satisfied with any allegation that discloses the very language used, whether purporting to be quoted from the writing or not. The identical words alleged to have been published were set out. The court thereby was enabled to determine whether they in law imposed liability, and the defendant informed what he would be required to meet. Proof of other or different language would, of course, have been excluded upon objection.

Error is next assigned upon the action of the court in overruling one of appellant's special exceptions, the effect of which is to challenge the sufficiency of that portion of appellee's petition which alleges that at the time he was discharged as result of the false and libelous publication uttered by appellant he was earning $45 per month, with reasonable prospect of promotion as he increased in knowledge and efficiency and consequent enhanced earnings, as basis of recovery, for the reason that no definite or permanent term of employment was alleged or any probability of a continuance of the indefinite employment.

It is a general principle of law that, if one "knowingly induces another to break his contract with a third person, such third person has a right of action against the one so causing the breach for any damages resulting to him by such breach." Raymond v. Yarrington, 96 Tex. 443, 73 S. W. 801, 62 L. R. A. 962, 97 Am. St. Rep. 914. The duration of the term of the contract thus violated or its permanency or impermanency does not, in our opinion, affect the right to recover whatever damages may have resulted. The duration of the contract might and probably would be a proper subject for consideration by the jury in determining the amount of the damages probably or proximately arising from its breach. That it would not, merely because it was from month to month, preclude recovery for what could be shown to have resulted, we think clear.

Appellant specially excepted to appellee's allegations setting forth the giving of the notice that appellant held an assignment of appellee's wages, on the ground, in effect, that an assignment of wages was lawful, and hence it was not libelous to give notice of its possession and ownership. The exception was overruled, and the court's action in that respect assigned as error. It is not, in our opinion, libelous for one who is the owner of an assignment of another's wage to give notice of that fact to the proper person. Giving such notice would but be the exercise of a contract right, and would confer no right to recover damages, whatever might result. If, however, at the time notice is given the debt which the assignment secures has been paid, yet it be falsely claimed that it has not, the one giving such notice is liable for such damages as proximately result from the unlawful act. The liability in such cases is not determined by the original bona fides of the assignment, but by the subsequent false claim.

Assignments 6, 7, 8, and 9 are grouped. These assignments challenge the action of the court in overruling as many special exceptions directed against certain allegations in appellee's petition asserted to be immaterial and prejudicial. The allegations complained of are essentially different in relation and purpose. The substance of those first presented is that appellant was engaged in conducting a usury business in the name of the Model Loan Company, of which appellant was sole owner, but which appellant, in order to avoid the law and its penalties, falsely claimed was owned by a nonresident of Texas, because of which it was alleged that she was...