Hajek v. Bill Mowbray Motors, Inc.

• Decision Date: 14 October 1982
• Docket Number: No. 2620,2620
• Citation: 645 S.W.2d 827
• Parties: James HAJEK, Appellant, v. BILL MOWBRAY MOTORS, INC., Appellee. cv.
• Court: Texas Court of Appeals

Page 827

645 S.W.2d 827

James HAJEK, Appellant, v. BILL MOWBRAY MOTORS, INC., Appellee.

No. 2620cv.

Court of Appeals of Texas Corpus Christi.

Oct. 14, 1982.

Ed Stapleton, Atty. at Law, Brownsville, for appellant.

Robert Whittington, O'Leary, Sanchez & Benton, Attys. at Law, Brownsville, for appellee.

Before NYE, C.J., and UTTER and GONZALEZ, JJ.

OPINION

GONZALEZ, Justice.

This is an appeal from an order granting a temporary injunction, enjoining appellant-defendant James Hajek, from publishing and circulating defamatory statements which were painted on a vehicle appellant purchased from appellee-plaintiff Bill Mowbray Motors, Inc.

The issue is whether the temporary injunction constitutes an impermissible restraint on appellant's First Amendment rights. We affirm.

In early 1981, appellant special ordered a new 1981 Dodge Maxi van. Appellant explained to salesman, Jerry Roberts, that he wanted something economical but still capable of carrying small items. Shortly after taking delivery, appellant returned to the dealer and complained that the van was underpowered. Appellant had modified the van by installing a windshield visor, a vent on the roof and a plastic air dam on the bottom of the vehicle. Roberts accompanied appellant on a test drive and concluded that although underpowered in certain situations, the van performed in accordance with factory specifications.

On April 11, 1981, appellant wrote Chrysler Corporation, complaining of poor performance and inquired about a 30-day money back guarantee which Chrysler had previously used to promote sales. Chrysler informed appellee of this letter. Appellee, contacted appellant and offered to exchange the van for a different one, but Hajek rejected the offer because of appellee's insistence on a depreciation allowance.

Appellant then painted the complained of statements on his van. The statements were painted in bright yellow, with approximately foot-high letters, on appellant's brown van:

(1) On the left side:

"Jerry Roberts sold this (representation of a lemon) Disaster (representation of a lemon) At Bill Mowbray Motors Inc. Help! It's a Dog!"

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

(2) On the rear:

"Help Bill Mowbray Motors Inc. Sold this (representation of a lemon)"

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

(3) On the right side:

"I bought this (representation of a lemon) At Bill Mowbray Motors Inc. Unhappiness! Help! (two representations of single lemons)"

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

(4) On the front:

"Disaster!"

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On February 17, 1982, appellee again conducted a test drive. The van exceeded 55 miles per hour both with and against the wind, although it was underpowered in fourth gear going up over an overpass. Appellee was of the opinion that the van performed adequately for its size engine and transmission. With the matter unresolved and appellant's van moving conspicuously in the vicinity of the dealer and around the city, and people asking about "the story," appellee sued for a temporary injunction and in the alternative damages.

At the hearing, appellant complained of poor performance and said that the van got better gas mileage in third gear than in fourth. This was the sum total of appellant's evidence.

At the outset we note that the trial court has broad discretion in determining whether to issue a temporary injunction to preserve the rights of the parties pending the outcome of a case. When the discretion of the trial court is exercised, its order should not be overturned on appeal unless the record discloses a clear abuse of that discretion. Texas Foundries v. International Moulders & Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952); Conley v. Brownsville Medical Center, 570 S.W.2d 583 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). Moreover, the appellate court is required to view the evidence and to draw legitimate inferences from the facts in evidence, in the light most favorable to the trial court's judgment. Powers v. Lynn, 523 S.W.2d 271 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.). However, any prior restraint on speech and publication, whether the speech was intended to have a coercive impact or not, is heavily presumed to be constitutionally invalid. Organization For a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Amalgamated Meat Cutter v. Carl's Meat & Provision Company, 475 S.W.2d 300 (Tex.Civ.App.--Beaumont 1971, writ dism'd).

In his first point of error, appellant contends that the trial court erred in finding the complained of statements false and defamatory. Appellant points to the undisputed fact that he purchased the van from Jerry Roberts at Bill Mowbray Motors, Inc., as painted on the van. He then argues that "Disaster", "Help", "It's a Dog", "Unhappiness", and the illustrated lemons refer to the vehicle, not the appellee, and that in order to impute impropriety to appellee, one would have to extend the meaning of the language beyond that clearly stated. We disagree.

In determining whether a statement is libelous, the statement should be construed as a whole in light of the surrounding circumstances from the aspect of how a person of ordinary intelligence would view the entire statement. Taylor v. Houston Chronicle Publishing Co., 473 S.W.2d 550 (Tex.Civ.App.--Houston [1st Dist.] 1971, writ ref'd n.r.e.), Southern Publishing Co. v. Foster, 53 S.W.2d 1014 (Tex.Comm'n App.--1932, opinion adopted). In making this determination, the opinion of the parties has no bearing on whether the complained of words are actually defamatory. Arant v. Jaffe, 436 S.W.2d 169 (Tex.Civ.App.--Dallas 1968, no writ).

With the above rules in mind, we believe that appellant by his use of lemons next to appellee's name has imputed certain business improprieties to appellee. As was noted in Johnson v. John Deere Co., 306 N.W.2d 231, 233 (S.D.1981), the term "lemon" has a well recognized connotation. It indicates chronic breakdowns and delays in repair of the kind experienced in Johnson. There a tractor was built with wrong size bolts on the front wheels, developed oil leaks, transmission and fuel injection problems, suffered problems with water hoses and experienced delays in repairs. By contrast, in our case the van did not suffer any of the symptoms commonly associated with "lemons." Except for appellant's opinion that the vehicle was underpowered in certain situations, the vehicle performed in accordance with factory specifications. Therefore, the trial court did not err in finding that appellant's characterizations of this van as a "lemon" was false, and we now turn to whether this falsity defamed appellee.

Libel

Libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of anyone and thereby expose such person to public hatred, ridicule or financial injury. Tex.Rev.Civ.Stat.Ann. Art. 5430 (Vernon 1958). Also, a corporation can be libeled. General Motors Acceptance Corp. v. Howard, 487 S.W.2d 708 (Tex.1972). The trial court did not err in finding that appellant's actions impeached appellee's reputation. We do not agree with appellant's argument that while the van may have been defamed, appellee was not. Appellant asks us to ignore the fact that he has labeled appellee a "lemon" seller, and by inference, a dealer who fails to remedy his customer's bona fide complaints after the sale. Appellant's first point of error is overruled.

Libelous Per Se--Public Figure

In his second point of error, appellant contends that the statements were not actionable per se and that there was no evidence of damage to appellee. As was set out in Bell Publishing Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197, 202 (Tex.Comm'n App.1943, opinion adopted):

"It is well settled that false words which tend to prejudice a person spoken of in his business, profession, office, occupation, or employment are actionable without proof of special damage if they affect him in such business, profession, office, occupation, or employment, in a manner that may, as a necessary consequence, or does, as a natural consequence, prevent him from deriving therefrom that pecuniary reward which, probably, otherwise he might have obtained."

See also: Bayoud v. Sigler, 555 S.W.2d 913, 915 (Tex.Civ.App.--Dallas 1977, writ dism'd) and cases cited therein; and Stearns v. McManis, 543 S.W.2d 659 (Tex.Civ.App.--Houston [1st Dist.] 1976, writ dismissed).

Appellant argues under this same ground of error that appellee is a "public figure" under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny, apparently based on the fact that Mowbray is a business which advertises and puts its name before the public. We do not think the Supreme Court intended the "public figure" analysis to apply in situations like this. The dispute between Hajek and Mowbray does not pertain any public issue or concern. Appellant's second point of error is overruled.

Free Speech

In his third ground of error, appellant contends the temporary injunction abridges his right of free speech under the First and Fourteenth Amendments to the United States Constitution. Appellant characterizes his statements as "opinion" and argues that freedom of speech is absolute; that no matter how bizarre or offensive his statements might be, they should not be suppressed because society benefits from the competition of ideas and opinions.

Appellant, however, overstates the constitutional protection afforded one's right to speak. Until the Supreme Court...