First Texas Prudential Ins. Co. v. Moreland

• Decision Date: 22 December 1932
• Docket Number: No. 2223.,2223.
• Citation: 55 S.W.2d 616
• Parties: FIRST TEXAS PRUDENTIAL INS. CO. v. MORELAND.
• Court: Texas Court of Appeals

Page 616

55 S.W.2d 616

FIRST TEXAS PRUDENTIAL INS. CO. v. MORELAND.

No. 2223.

Court of Civil Appeals of Texas. Beaumont.

December 22, 1932.

Rehearing Denied December 28, 1932.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Action by E. N. Moreland against the First Texas Prudential Insurance Company. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and judgment rendered for defendant.

Orgain, Carroll & Bell and Ewell Strong, Jr., all of Beaumont, for appellant.

Morris & Bennett, of Beaumont, for appellee.

O'QUINN, J.

Appellee sued appellant claiming that appellant, by and through its agents, had made certain oral statements about and concerning him which in law amounted to slander of him, and that as a result of said alleged slander he had been actually damaged in the sum of $50,000, and that said slanderous statements were made under circumstances entitling him to recover exemplary damages in the sum of $25,000.

In substance, he alleged that appellant was a Texas corporation with its principal office and place of business in Galveston, Galveston county, Tex., but that it had an office and agent in Beaumont, Jefferson county, Tex.; that November 18, 1929, he was employed by appellant and was required to and did execute bond payable to appellant in the sum of $100; that he then entered upon his duties as agent for appellant, selling and collecting insurance; that J. H. Pratt was in charge of the Beaumont office of appellant under whom appellee worked; that weekly reports of insurance sold and insurance collected was required to be made; that a dispute arose between Pratt and himself as to the correctness of reports made by appellee, Pratt contending that appellee checked in short, and appellee contending he was not short; that the matter not having been settled to his satisfaction, he, on December 21, 1929, made his final report and quit work for appellant; that he wrote R. W. Rogers, who was manager for appellant at Galveston, Tex., and in charge of all appellant's business in Texas, and requested him to come to Beaumont and settle the dispute between Pratt and himself; that Rogers did come to Beaumont, and that at their first meeting in Pratt's office, in discussing the matter of appellee's being short, Rogers, in Pratt's presence, said to appellee: "Well, you know when we make this audit, all we'll have to do is to file a complaint against you for embezzlement"; that he, appellee, demanded an audit of his account; that Rogers called J. H. Treaster, appellant's general auditor at Galveston, and Treaster came to Beaumont for the purpose of auditing appellee's account; that in discussing the method and beginning of the audit, while appellee and Treaster were in a car on the street in front of what was known as the "shine parlor," Treaster said to appellee: "Well, when I get through with my report, you know what will happen, the company has indicted one fellow for embezzlement already."

Further allegations were made, among other things, (a) that about January 1, 1930, in appellant's office in Beaumont, Treaster, in talking to O. J. Cowan about appellee, said: "He's fired—we caught him stealing"; (b) that about December 2, 1929, appellee sold a policy of insurance to one Mrs. Ortez, who paid him the premium, and which he turned over to Pratt; that her policy was not delivered, but after appellee had quit the employment of appellant the policy was delivered to Mrs. Ortez with the explanation that the reason of the delay in delivering the policy was that appellee had collected the premium and had not turned it in; (c) that in the early part of January, 1930, an agent of appellant went to the home of appellee and attempted to sell insurance to his wife, Mrs. Moreland, his daughter, Mrs. B. J. George, and one Mrs. Barrett, and, when told that they did not care for insurance in the company, the agent replied: "The company is all right now, a bunch has been let out for their crookedness." All of these allegations were duly and fully enlarged and made applicable by innuendoes.

Appellee further alleged: "That all of the aforementioned acts, charges, accusations, and insinuations of defendant and its duly authorized agents, constitute a course of action on the part of defendant and its duly authorized agents, and a studied design to slander plaintiff, ruin his reputation, destroy his standing in the community and among his fellowmen, and to prevent plaintiff from again entering any financial employment, and said acts, charges, and insinuations were made in an attempt to coerce and intimidate plaintiff into paying sums of money unjustly and illegally charged against him."

Appellant answered by general demurrer, special exceptions, and a general denial. It further specially denied that it had at any time, directly or impliedly, authorized any of its agents to charge or to insinuate that appellee had embezzled funds of appellant, and that, if any such accusations or insinuations were made, the person making same was not acting within the scope of his employment or in the furtherance of appellant's business; that, if such statements were made and in the event they were made within the scope of the agent's employment and in the furtherance of appellant's business, then they could not be made the basis of a suit in slander for damages, for in that the matter was privileged, and, if not privileged, then qualifiedly or conditionally privileged; denied that Rogers made the statement alleged, but that, if he did so, it was made in reference to a matter of and concerning appellant's business wherein there was a dispute between appellant and appellee as to whether appellee had accounted for all the funds collected by him for appellant; that appellant was acting in good faith and without malice in an effort to adjust and clear up appellee's account with appellant; that, if Rogers made the alleged statement, under all the facts and circumstances, it was privileged; that appellee demanded an audit of his account, and appellant's auditor, Treaster, was called from Galveston to make the audit, which showed appellee owed appellant the sum of $17.70; that appellee refused to pay said sum and appellant filed suit against appellee and his bondsmen in the justice court at Galveston, and judgment had for said sum; and that said judgment was res adjudicata of the fact of appellee's owing appellant said sum. Appellant denied that, in its dealings with appellee, it or its agents were actuated by malice or bad faith, but only for the purpose of clearing up the dispute between appellee and appellant, and to collect the amount shown by the audit appellee owed appellant.

By supplemental petition, appellee replied to appellant's answer by special exceptions, general denial of the matters set out in same, save as admitted, and specially that appellant and its agents, acting within the scope of their employment, had exceeded their privilege, if any they had, in taking and picking their opportunity and using the manner and words used in speaking of and referring to appellee, and that the truth, as attempted to be pleaded by appellant, was no defense; that the judgment recovered by appellant in the justice court at Galveston against appellee grew out of a dispute as to the amount of money appellee owed the appellant, if any, and was in no way connected with embezzlement; that there was no testimony at the trial that appellee had embezzled funds of appellant, and that the pleadings on their face showed that there was no charge of embezzlement against appellee; that the suit at Galveston against appellee and the suit here involved were wholly disconnected and the issues wholly different; that the judgment recovered by appellant at Galveston could not be pleaded in bar to appellee's suit because said judgment had been enjoined by an order of the Fifty-Eighth district court of Jefferson county, Tex.

To this supplemental pleading by appellee, appellant replied by general demurrer, general denial, and specially that the action, if any, taken by the district judge of the Fifty-Eighth district court of Jefferson county, Tex., as to the Galveston county judgment, was wholly void; that said court was without jurisdiction of the matter involved; and that any act upon his part as to such judgment, being a purely collateral proceeding, could in no way affect said Galveston county judgment.

The court sustained appellant's special exception No. 3 relating to appellee's allegation as to a matter alleged to have happened at the home of Mrs. Rigsby to the effect that said allegation stated no cause of action, but overruled all of appellant's other exceptions. All of appellee's special exceptions were overruled.

At the close of the evidence, appellant requested the court to instruct a verdict in its behalf, which was refused. The case was then tried to a jury upon special issues, upon the answers to which the court rendered judgment in favor of appellee in the sum of $5,000, of which $1,000 was for actual damages and $4,000 for exemplary damages.

The jury found in favor of appellant on the issues as to the matters alleged relative to O. J. Cowan and Mrs. Ortez. The other issues were answered favorably to appellee.

Appellee insists that we should not consider this appeal because, he says, the judgment from which the appeal was taken had become and was a final judgment prior to the appeal. This contention is based upon the assertion that no motion for a new trial was filed during the term of the court at which the judgment was rendered, and hence become final at the expiration of the term. The case was tried in the Sixtieth district court of Jefferson county. This court held two terms in the year—the first beginning the first Monday in January and ending the last Saturday in June, and the second beginning the first Monday in July and ending the last Saturday in December. The case was tried in June, 1931, and...