Lyle v. Waddle

• Decision Date: 11 July 1945
• Docket Number: No. A-594.,A-594.
• Citation: 188 S.W.2d 770
• Parties: LYLE v. WADDLE.
• Court: Texas Supreme Court

Page 770

188 S.W.2d 770

LYLE v. WADDLE.

No. A-594.

Supreme Court of Texas.

July 11, 1945.

Certified Question from Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Leona Waddle against Judge M. Lyle to recover damages for libel and for gross negligence in diagnosis and treatment of plaintiff. From an order overruling his plea of privilege, defendant appealed to the Court of Civil Appeals, which certified questions of law to the Supreme Court.

Questions answered in accordance with opinion.

John T. Pearson and John T. Gano, both of Fort Worth, for appellant.

Rollins, Clark & McWhirter, of Greenville, for appellee.

SMEDLEY, Commissioner.

The Court of Civil Appeals for the Fifth Supreme Judicial District has certified to this court four questions of law arising in a cause appealed to that court from an order of the district court of Hunt County overruling a plea of privilege. The manner in which the questions arise and the material facts, shown by the certificate, the tentative opinion of the Court of Civil Appeals, which is referred to by the certificate for a full statement of the facts, and the transcript, are as follows:

Appellee, Mrs. Leona Waddle, a widow residing in Hunt County, filed suit in the district court of that county against appellant, Dr. Judge M. Lyle, a practicing physician residing in Tarrant County. Appellee's petition alleges two grounds of recovery, libel in a letter written by appellant and alleged to have been published by him, the effect of which, appellee alleges, was to charge that she was suffering from and had been treated for a contagious or infectious disease, and gross negligence on the part of appellant in diagnosis and in his treatment of appellee.

Appellant's plea of privilege in statutory form to be sued in Tarrant County, where he resides, was controverted by appellee, who sought to maintain venue in Hunt County under subdivision 29 of Article 1995 of the Revised Civil Statutes of 1925, on the ground that a libel was published by appellant in Hunt County, where appellee resided at the time of the accrual of the cause of action, and under subdivision 9 of Article 1995, on the ground that in appellant's treatment of appellee a trespass was committed by him against her which was a continuing trespass, having its inception in Tarrant County, but having its completion in Hunt County, in which appellant suffered her major injuries.

The second and third questions certified, which relate to venue under subdivision 29, will be considered first. They are as follows:

"Second. Was delivery by appellee to Dr. Kennedy of the letter given her by the appellant for the purpose and under the circumstances mentioned, appellee knowing at the time its meaning and purpose, a publication by her of the alleged defamatory matter?

"Third. Under the facts heretofore stated, did appellee's alleged cause of action for libel against the appellant, if a cause of action existed, accrue in Hunt County?"

The effect of the filing of the plea of privilege and the controverting affidavit invoking subdivision 29 of Article 1995 was to impose on appellee, plaintiff in the trial court, the burden of proving on the hearing of the plea of privilege that a cause of action for libel in fact accrued in her favor. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732. There is no libel unless there is a publication, for the gist of an action for libel is injury to the plaintiff's reputation. A. H. Belo & Co. v. Fuller, 84 Tex. 450, 453, 19 S.W. 616, 31 Am.St.Rep. 75; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732; Cohen v. New York Times Co., 153 App.Div. 242, 138 N.Y.S. 206; Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255; Newell's Slander and Libel (4th Ed.) pp. 218-220, Sec. 175, 33 Am.Jur., Libel and Slander, Sec. 90, pp. 103-104. Under the facts, the controlling question, as far as the right of appellee to maintain venue in Hunt County under subdivision 29 is concerned, is: Was there a publication by appellant of a libel?

Appellee operated a beauty parlor in Fort Worth, Tarrant County and, being required by statute to have a health certificate, she went to appellant for examination. He advised her after examination that she was diseased and that treatment by injections of drugs was necessary. He gave her several of such treatments, which caused first an itching sensation and later pain and suffering. After six treatments her suffering became so intense that she refused to submit to further treatments and was compelled to close her business in Fort Worth and return to her former home in Greenville, Hunt County. After she returned to Greenville her suffering from the treatments administered in Fort Worth continued and increased in intensity. Her hands and feet became swollen, her skin peeled off and she was confined to her room for several months, and frequently to her bed, all the result, as she contended, of an overdose of arsenic administered by appellant.

Before she left Fort Worth appellee told appellant that she was moving to Greenville, and he told her the injections would have to be continued. She asked what the injections were and he told her he would write her Greenville doctor and advise him what he was giving her. Appellant did not write the Greenville doctor, but appellee, before leaving Fort Worth, sent her sister to appellant for the letter and appellant wrote and gave to appellee's sister a letter, which is as follows:

"September 25, 1942. Miss Leona Waddle, Room 604 Westbook Hotel, Fort Worth, Texas. My dear Miss Waddle: We are giving you the following information so that you may pass it on to your doctor. We have given you, since September 1, three shots of bismuth and three shots of Neo. Very truly yours, Judge M. Lyle, M. D."

The tentative opinion of the Court of Civil Appeals states that appellee requested appellant to write a letter to be shown to her Greenville physician and quotes testimony of appellee that appellant issued the letter at her request. On October 26, 1942, appellee consulted and placed herself under the treatment of a Dr. Kennedy in Greenville, and showed him the letter written by appellant.

Appellee's claim for damages for libel is on the theory that the letter was defamatory, meaning by necessary implication, and understood by any physician to mean, that she was unchaste and had a loathesome disease, for which appellant had been treating her; that the letter was written for the purpose of being exhibited to her physician in Greenville; and that its exhibition to the physician was the publication by appellant of a libel.

We express no opinion as to questions, other than that of publication, which may be suggested by the facts above stated. It is our opinion that the second and third certified questions are answered by the rule that if the publication of which the plaintiff complains was consented to, authorized, invited or procured by the plaintiff, he cannot recover for injuries sustained by reason of the publication. Renfro Drug Co. v. Lawson, 138 Tex. 434, 443, 160 S.W.2d 246, 146 A.L.R. 732; Patterson & Wallace v. Frazer, Tex.Civ.App., 79 S.W. 1077; Rosenbaum v. Roche, 46 Tex.Civ.App. 237, 101 S.W. 1164; Bull v. Collins, Tex.Civ. App., 54 S.W.2d 870; Rivers v. Feazell, Tex.Civ.App., 58 S.W.2d 133; Taylor v. McDaniels, 139 Okl. 262, 281 P. 967, 66 A. L.R. 1246; Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255; Shinglemeyer v. Wright, 124 Mich. 230, 82 N.W. 887, 50 L.R.A. 129; 33 Am.Jur., Libel and Slander, Sec. 93, pp. 105, 106, Sec. 104, p. 110.

Appellee requested appellant to write the letter stating what treatments had been given her, or at least she consented to the writing of the letter in order that it might be shown to her physician. The letter was neither addressed nor mailed to the Greenville physician, but it was addressed to appellee and she sent her sister to appellant to obtain it. It is true that appellant wrote the letter in order that appellee might show it to the physician in Greenville so that he would know what the treatments had been; but appellee was free to make that use of the letter or not to use it. The letter states: "We are giving you the following information so that you may pass it on to your doctor." There is no suggestion that appellant misled her as to the meaning of the contents of the letter. Appellee held the letter in her possession and under her control for a month, and when she voluntarily disclosed the contents of the letter to the Greenville physician she, and not appellee, accomplished the publication.

Our answer to the second and third certified questions is as follows: The delivery of the letter by appellee to Dr. Kennedy for the purposes and under the circumstances shown by the certificate was a publication by appellee, and not by appellant, of the alleged defamatory matter; and under the facts stated a cause of action for libel did not accrue in favor of appellee.

The fourth certified question is as follows:

"Fourth. Was the trespass complained of, that is the alleged negligent diagnosis and treatment of appellee by the appellant causing her suffering and damages in both Tarrant and Hunt Counties, a continuing trespass authorizing suit in either county within the meaning of subdivision 9, Article 1995?"

Subdivision 9 provides:

"A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile."

Appellee, relying upon that subdivision for venue in Hunt County, had the burden of pleading and proving that a trespass was in fact committed in Hunt County. Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Brown Express, Inc., v. Arnold, 138 Tex. 70, 157 S.W.2d 138; City of Mineral Wells v. McDonald, 141 Tex....