Mayo v. Goldman

• Decision Date: 11 November 1909
• Citation: 122 S.W. 449
• Parties: MAYO v. GOLDMAN.
• Court: Texas Court of Appeals

122 S.W. 449

MAYO v. GOLDMAN.

Court of Civil Appeals of Texas.

November 11, 1909.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Action by Homer P. Mayo against Abe Goldman. Judgment for defendant, and plaintiff appeals. Reversed and cause remanded for a new trial.

See, also, 44 Tex. Civ. App. 80, 97 S. W. 1061.

Dudley & Dudley and B. B. Sturgeon, for appellant. Moore & Park, for appellee.

WILLSON, C. J.

Appellee was the president and manager of the Goldman Grocer Company, a concern engaged in a wholesale grocery business in the city of Paris. Appellant was an employé of said company— a "utility man," he testified. His duty, it seems, was to keep his employer advised as to its stock and the market price of goods it handled. One Webber was a traveling salesman for dealers in grocers' specialties, including pickles, preserves, etc. In June, 1904, while in Paris, Webber endeavored to sell to appellant as the manager of the Goldman Grocer Company a car load of pickles, and during the negotiations, as claimed by appellee, presented to Mayo certain jellies, preserves, etc. The acceptance by Mayo of the gift, as claimed by appellee, was a violation, it seems, of the rules controlling in the conduct of the grocer company's business, and appellee protested against it. In doing so, according to the testimony on the part of appellant, appellee in the presence of Webber and other parties charged him (appellant) with having been bribed by Webber, and thereupon as president and manager of said grocer company discharged him from his employment for said company. On the ground that the charge was slanderous and had resulted in injury to him, appellant commenced and prosecuted the action for damages, resulting in the judgment in appellee's favor, from which this appeal is prosecuted.

The first assignment complains of the action of the court in instructing the jury, in effect, to find for appellee, notwithstanding they believed he had charged appellant with having been bribed, as alleged, unless they also believed that the charge was made maliciously. Appellant's contention is that the words alleged to have been spoken of and concerning him by appellee were slanderous per se, and therefore that it was immaterial, so far as his right to recover actual damages was concerned, whether they were spoken maliciously or not. We think the contention must be sustained. According to the testimony admitted on appellant's behalf, appellee, in an angry manner and in the presence of several parties, charged Webber with having bribed appellant, and charged appellant with having been bribed, by Webber, and thereupon discharged him. The general rule is that "oral words, however opprobrious, are not actionable without proof of special damage, unless they impute to another the commission of a crime." 18 A. & E. Ency. Law (2d Ed.) pp. 908, 944, 965. To impute to a clerk that he has been bribed in connection with the discharge of duties he owes his employer does not charge him with a crime known to our laws, and therefore we are of the opinion that the imputation charged to appellee did not bring his case within the general rule. An exception, however, to the rule as well established, perhaps, as the rule itself, is that "words which affect a person injuriously in his office, profession, or occupation are actionable per se, though they are oral, regardless of the fact that they do not impute the commission of any crime." Id. p. 965. To impute to a clerk that he has been bribed to betray the confidence of his employer unquestionably tends to injure him in his vocation, and, if the imputation is false, it is per se slanderous. Fowles v. Bowen, 30 N. Y. 20; Railway Co. v. Richmond, 73 Tex. 573, 11 S. W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794. We understand the rule to be that when words...