Harris v. Thornton's Department Store

• Decision Date: 03 April 1936
• Docket Number: No. 1535.,1535.
• Citation: 94 S.W.2d 849
• Parties: HARRIS v. THORNTON'S DEPARTMENT STORE.
• Court: Texas Court of Appeals

94 S.W.2d 849

HARRIS v. THORNTON'S DEPARTMENT STORE.

No. 1535.

Court of Civil Appeals of Texas. Eastland.

April 3, 1936.

Rehearing Denied May 15, 1936.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Suit by Jack Harris against Thornton's Department Store. Judgment for defendant, and plaintiff appeals.

Affirmed.

Kirby, King & Overshiner, of Abilene, for appellant.

Cox & Hayden, of Abilene, for appellee.

FUNDERBURK, Justice.

This is a suit by Jack Harris against Thornton's Department Store to recover damages, actual and exemplary, for alleged slander, assault, and false imprisonment. It was alleged that after plaintiff had purchased some meat and butter at defendant's store and had proceeded some distance from the store, Welch, defendant's manager, overtook him and asked in the presence and hearing of numerous persons: "Why didn't you pay for that merchandise you got in the store?" That after plaintiff's assertion that he had paid for it, Welch replied: "No you did not. You are going back to the store with me." That Welch thereupon took him by the arm and forced him to return to the store. It was alleged, in effect, that said words, the manner of speaking them, and the accompanying actions constituted an accusation that plaintiff had been guilty of theft; was a thief and had stolen said merchandise.

The case was submitted to a jury upon special issues. Special issue No. 1 was: "Do you find from a preponderance of the evidence that B. Welch, on or about June 30, 1934, accused plaintiff with the theft of merchandise from defendant's store?" Each of the other issues was submitted with the direction that the jury do not answer it unless they had answered said special issue No. 1, "Yes." No issues were submitted or requested relating to assault or false imprisonment. The jury's verdict upon said special issue No. 1 was "No," and therefore in accordance with the directions given the other special issues were not answered. Upon the verdict so returned, judgment was rendered in favor of the defendant from which the plaintiff has appealed.

The first question for decision is whether, under the circumstances presented by the record, the court erred in refusing to define the term "theft" as used in said special issue No. 1. The question is attempted to be raised in two ways. Appellant requested and the court refused a (so-called) charge by which had it been given the jury would have been instructed that: "Theft is the fraudulent taking of corporal personal property, belonging to another from his possession, or from the possession of some person holding same for him, without his consent and with the intent then and there to deprive the owner of the value of same and to appropriate it to the use and benefit of the person taking it." By the first assignment of error it is contended that the court erred in refusing to submit said requested charge. By the fifth assignment of error it is alleged that the court erred in not sustaining appellant's objection to the submission of said special issue because the court had failed to define the term "theft" as therein used. The point is, therefore, presented under both assignments of error.

We regard the point as being presented by the assignment based upon the action of the court in overruling the objection; and not by the assignment based upon the refusal of the court to give the requested definition. When a case is submitted upon special issues and it becomes necessary under the provision of R.S. 1925, art. 2189, for the court to give a definition or explanation of legal terms employed in the statement of such issues, and the court wholly fails to do so, then in order to complain of such failure a party is required to make a proper and timely objection and is not required to tender and request the giving of such definition or explanation. Robertson & Mueller v. Holden (Tex.Com.App.) 1 S. W.(2d) 570; Gulf C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Miller v. Fenner, Beane & Ungerleider (Tex.Civ.App.) 89 S.W. (2d) 506, 514.

The word "theft" has a popular or common and ordinary meaning. Under our Penal Code it has a legal or technical meaning. P.C. arts. 1410 and 1412. We find nothing in appellant's petition which indicates, or at least indicates with any degree of certainty, that the term was used in the pleadings as having the legal or technical meaning, rather than the ordinary or popular meaning. The alleged slanderous words did not contain the term "theft," but it was alleged that defendant's manager by his tone of voice, manner, and actions accused plaintiff of theft and of being a thief and having stolen the merchandise by asking him the question, "Why didn't you pay for that merchandise you got in the store?" and by contradicting plaintiff's assertion that he had paid for it with the reply, "No you did not. You are going back to the store with me." We think if such constituted a charge of theft in any sense, that bystanders and witnesses to said transaction would have understood that it was theft in its ordinary and popular sense. Appellant himself insists that the test is how it would have reasonably been understood by the witnesses to the transaction.

Webster's International Dictionary defines "theft" thus: (1) "Act of stealing"; (2) "that which is stolen." In Mathews v. State, 36 Tex. 675, "steal" was held to be synonymous with "theft." Of the word "steal" Corpus Juris says: "It has been said that in its popular and broader or colloquial sense, it may signify any wrongful and unlawful taking, of person, or of property or any wrongful conversion of the same." 59 C.J. 1222, § 1. The same authority says that: "As a general rule, to say of a person that he `stole,' `is stealing,' `has stolen,' or otherwise charging him with stealing property belonging to the speaker or to a third person, without any accompanying language to qualify the offensive import of the charge, is actionable per se; * * * but the word `steal' colloquially is sometimes used where no intention of a crime is intended to be charged." 36 C.J. 1207, § 139. "Theft, as the word is commonly used," said an Ohio court in Great American Mutual Indemnity Co. v. Meyer, 18 Ohio App. 97 (quoted in note 62 C.J. 890), "is a good strong word, big enough to cover a variety of rascalities." We very strongly incline to the view that if the language charged to the manager of appellee constituted an accusation of theft it did so within the ordinary and popular understanding of the term, rather than its technical or legal meaning.

But whether or not we are correct in this view, we are of the opinion that the failure of the court to give the legal or technical definition of the term was more favorable to appellant than the appellee. Under all the evidence in the case the jury could more certainly and reasonably have found the issue in favor of appellant without the definition than had it been given. If, therefore, there was any error in the refusal of the court to define the term as a legal and technical term it was affirmatively harmless.

It is next insisted that the court erred in refusing to give his requested instruction as follows: "In considering the meaning of words uttered, as to whether or not they were such as to accuse the plaintiff of theft, you are instructed that such meaning does not depend upon the intent of the speaker but it is what they would mean to the ordinary hearer and in arriving at their meaning the jury may consider them in the light of all the facts and surrounding circumstances at the time they were uttered." This does not purport to define or explain the meaning of any word or term used in the statement of the special issues submitted. It is a special charge or instruction upon the law of the case, not proper to be given, in a case submitted to the jury upon special issues. See long list of authorities cited in Standard v. Texas & P. C. & O. Co. (Tex.Civ.App.) 47 S.W. (2d) 443, and the following additional authorities Wichita Valley R. Co. v. Anderson (Tex.Civ.App.) 48 S.W.(2d) 361; Texas & P. R. Co. v. Phillips (Tex.Civ. App.) 56 S.W.(2d) 210; Liberty Mut. Ins. Co. v. Boggs (Tex.Civ.App.) 66 S.W.(2d) 787; Lewis v. Halbert (Tex.Civ.App.) 67 S.W.(2d) 430; Texas & P. R. Co. v. Foster (Tex.Civ.App.) 58 S.W.(2d) 557; Wichita Valley R. Co. v. Brown (Tex.Civ. App.) 274 S.W. 305; Texas & P. R. Co. v. Perkins (Tex.Com.App.) 48 S.W.(2d) 449; Texas & P. R. Co. v. Perkins (Tex. Civ.App.) 29 S.W.(2d) 835; Maryland Cas. Co. v. McGill (Tex.Civ.App.) 69 S. W.(2d) 158; Mahone v. Bowman (Tex. Civ.App.) 70 S.W.(2d) 323; Texas & P. R. Co. v. Rampy (Tex.Civ.App.) 71 S.W. (2d) 387; Tallabas v. Wing Chong (Tex. Civ.App.) 72 S.W.(2d) 636; Iowa Mfg. Co. v. Baldwin (Tex.Civ.App.) 82 S.W. (2d) 994; Williams v. Rodocker (Tex. Civ.App.) 84 S.W.(2d) 556.

The preliminary observations upon the first point above discussed are likewise applicable to this one. The matter sought to be brought to the attention of the jury related to special issue No. 1 which, being given, it was necessary that its deficiencies be called to the attention of the court by an objection and not by request for an issue or instruction to be given.

It is next contended, in substance or effect, that the evidence was conflicting as to whether defendant's manager, Welch, spoke or uttered the alleged slanderous words, and that an issue submitting that question should have been given to the jury. Undoubtedly, that was an issue which plaintiff had the burden of establishing. "Failure to submit an issue," says the statute, "shall not be deemed a ground for reversal of the judgment unless its submission has been requested in writing by the party complaining of the judgment." R.S.1925, art. 2190. When by this provision a party is under the necessity of requesting a special issue, in order to avoid a waiver of error in the action of the court, in failing to submit it, he is governed by the provisions...