Foley Bros. Dry Goods Co. v. McClain

• Decision Date: 20 May 1921
• Docket Number: (No. 677.)
• Citation: 231 S.W. 459
• Parties: FOLEY BROS. DRY GOODS CO. v. McCLAIN et al.
• Court: Texas Court of Appeals

231 S.W. 459

FOLEY BROS. DRY GOODS CO. v. McCLAIN et al.

(No. 677.)

Court of Civil Appeals of Texas. Beaumont.

May 20, 1921.

Rehearing Denied June 1, 1921.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by Hazel McClain and another against the Foley Brothers Dry Goods Company. From judgment for plaintiffs, defendant appeals. Judgment reversed, and cause remanded.

Garrison, Pollard, Morris & Berry, and Maurice Epstein, all of Houston, for appellant.

Wm. Masterson and Samuel Schwartz, both of Houston, for appellees.

HIGHTOWER, C. J.

This was an action for slander brought by the appellee, as plaintiff below, against the defendant, and resulted in a verdict and judgment in favor of the plaintiff for $3,000, from which this appeal was prosecuted. We find in appellant's brief what seems to be a sufficiently full and clear statement of the nature and result of the suit, and which is in no respect questioned by the appellees, and the same is adopted by this court, as follows:

"This suit was instituted by Hazel McClain, a minor, through her father, Thomas McClain, as next friend, to recover both actual and exemplary damages alleged to have been sustained by her by reason of certain alleged slanderous statements made by the appellant. She alleged in her petition substantially as follows:

"That on or about the 14th day of November, 1918, she was employed by the defendant (appellant), Foley Brothers Dry Goods Company, as a wrapper of goods and merchandise in the neckwear department, on the first floor of the store; that on or about said date, and while so employed, a co-worker of the plaintiff on said floor, to wit, a saleslady by the name of Bessie York, brought a package of goods to the plaintiff unwrapped, with the request that the plaintiff wrap the same, as it was her duty to do; that Bessie York presented therewith a duplicate slip, which showed the value of the goods to be $4.50, stating at the time to the plaintiff that same had been paid for by her, and requested of plaintiff that no charge check be entered therefor; that she believed and relied upon the statements made by said Bessie York, and acting upon the truth thereof, having no reason to doubt the same, if, in fact, said statements were false, which is not admitted, but expressly denied, and so believing, she wrapped the said package of goods as she was requested to do, attaching thereto, as is customary in such cases, a duplicate slip, delivering the same to the cashboy to be carried to the delivery department; that shortly thereafter the package was returned to her unwrapped, with the request that she furnish duplicate check; that she advised the party so requesting that the duplicate check was attached to said package when delivered to the cash boy, and that she was unable to attach said duplicate slip; that shortly thereafter she was approached by one Muenster, an employé of the defendant as floorwalker, who had charge of the floor, who demanded of plaintiff the duplicate check or slip for said goods, and that he was advised by the plaintiff that the same was delivered to the cash boy; that notwithstanding her statement or explanation, she was then required by said Muenster to go with him to one Fred Kennedy, who was the superintendent of defendant's store, and who, in such capacity as superintendent, had authority to hire and discharge employés, including the plaintiff, who also interrogated the plaintiff regarding said package, and the duplicate slip, and who was likewise advised by plaintiff that same had been wrapped, and said slip attached under the circumstances as heretofore stated; that thereupon the said Kennedy stated to the plaintiff in a loud voice, and in the presence and hearing of various other parties, that the goods had been stolen, and that plaintiff was implicated in the thievery, or as much to blame therefor as the said Bessie York, meaning and intending to say thereby that both the plaintiff and Bessie York were guilty of the theft of said goods.

"The plaintiff further averred that she was then required by said Kennedy, as superintendent, to go to one George Cohen, who was the manager of said defendant's store, and who has some interest therein, as a member thereof, who likewise interrogated the plaintiff regarding the wrapping of said package and the duplicate slip attached thereto, and that said Cohen then and there told plaintiff and said to her in a loud voice, and in the presence and hearing of one Muenster and Kennedy, and various other persons whose names are to the plaintiff unknown, that she, plaintiff, was as much implicated in the thievery of said goods as was the said Bessie York, thereby charging and meaning and intending to charge and say that both the plaintiff and the said Bessie York were guilty of theft of goods; that she immediately thereafter was discharged.

"Plaintiff averred that she had nothing whatever to do with said articles of merchandise except as above alleged, and after having made said explanation, the said agents, servants, and employés of the defendant company falsely intending to injure the plaintiff, and to bring her into public disgrace, scandal, shame, and humiliation, and to injure her in her good name, fame, credit, and reputation, did falsely, wickedly, maliciously speak and publish said charges, statements and accusations to and of and concerning this plaintiff, to her great damage, viz., $10,000 actual damages, and punitive damages $5,000.

"The defendant answered by general and special demurrers, general denial, and specially alleged that, if said statement was made, the same was a privileged communication, and was not made in the hearing or presence of any one save and except the employés of the defendant company whose duty it was to investigate and truthfully ascertain the true facts surrounding the wrapping of said package, and that said statements, if made, were made in the discharge of their duty that they owed to the defendant company, its officers and representatives.

"The case was submitted to the jury upon special issues, which special issues and the answers thereto are as follows:

"`Special Issue No. I: Did or did not parties other than Mr. George Cohen, Mr. Fred Muenster, and Mr. John Kennedy hear the statement set out in plaintiff's petition by and between them and Miss Hazel McClain in Mr. George Cohen's private office?'

"To which the jury answered: `They did.'

"`Special Issue No. II: Give the name or names of the parties who overheard the statement set out in plaintiff's petition.'

"To which the jury answered: `Parties unknown to us.'

"`Special Issue No. III: Did or did not the parties who heard said statement understand what was said at the time same was uttered?'

"To which the jury answered: `They did.'

"Special Issue No. IV: Did or did not the parties who heard said statement understand to whom it was said at the time same was uttered?'

"To which the jury answered: `They did.'

"Special Issue No. V: Was or was not such statement actuated by malice toward the said Hazel McClain as the term "malice" will be hereinafter defined?'

"To which the jury answered: `It was.'

"`Special Issue No. VI: What amount of actual damages, if any, do you find the plaintiff, Hazel McClain, entitled to recover herein by reason of said statement so made to her?'

"To which the jury answered: `$1,500.'

"`Special Issue No. VII: What amount of exemplary damages, if any, do you find the plaintiff, Hazel McClain, is entitled to recover herein by reason of said statement so made to and about her?'

"To which the jury answered: `$1,500.'"

By supplemental petition filed, plaintiff joined issue with defendant on its plea of privilege, both in law and on the facts. After the verdict of the jury had been returned, the defendant moved to set the same aside, which motion was overruled, and judgment was entered upon the verdict in favor of the plaintiff for $1,500 actual and $1,500 exemplary damages. Afterwards, defendant filed its motion for new trial, which was also overruled.

By the first assignment of error, complaint is made that the trial court erred in overruling appellant's general demurrer. It is contended that this action of the court was error, because the petition did not state a cause of action against appellant, in that it failed to allege any slanderous or defamatory statement concerning plaintiff involving the commission of a crime. Also, it is contended that the petition failed to allege in haec verba any language used by appellant concerning the plaintiff that could be made the basis for slander, or that imputed to plaintiff the commission of any crime, or which charged plaintiff with an offense upon which an action could be predicated. Also, it is contended that the petition failed to allege special damages, and that, since the language attributable to appellant, the use of which plaintiff complained of, was not actionable per se, the petition showed no cause of action, in the absence of an allegation of special damages.

After careful consideration of this assignment, we have reached the conclusion that it cannot be sustained. The natural and reasonable inference or conclusion that would be drawn by the ordinary mind from the statement and language alleged to have been made and used to and concerning appellee by defendant would be that appellee was implicated criminally in the theft of goods, or, in other words, that she was guilty of a criminal offense. Therefore the utterance or statement complained of, as shown in the petition, was slanderous per se, and, this being so, it was not necessary, in order to show a cause of action, that the petition should allege special damages. Belo v. Fuller, 84 Tex. 450, 19 S. W. 616, 31 Am. St. Rep. 75; Publishing Co. v. Jones, 83 Tex. 302, 18 S. W. 652; Baten v. Houston Oil Co., 217 S. W. 394. In the last-mentioned case, the authorities are fully reviewed by Associate Justice Walker, who wrote ...