Missouri Pac. Ry. Co. v. Richmond

• Decision Date: 26 April 1889
• Parties: MISSOURI PAC. RY. CO. <I>v.</I> RICHMOND.
• Court: Texas Supreme Court

11 S.W. 555

MISSOURI PAC. RY. CO.

v. RICHMOND.

Supreme Court of Texas.

April 26, 1889.

Appeal from district court, McLennan county.

Clark, Dyer & Bollinger, for appellant.

STAYTON, C. J.

The nature and result of this action is thus correctly stated in brief of counsel for appellant: "Appellee sued appellant for three thousand dollars as actual, and twenty thousand dollars as exemplary, damages, claimed to have resulted to him on account of alleged libelous matter claimed to have been made and published of and concerning appellee by appellant, charging substantially as follows: That appellant composed and published a certain discharge list in February, 1884, which was in the form of a printed pamphlet, and which contained, among many other names, the name of appellee; the particular matter complained of in said pamphlet being, in substance, that `A. F. Richmond,' a `conductor' on the `I. & G. N.,' was `discharged' in `July, 1883,' for `carelessness,' — appellee claiming that said publication was circulated among all railroad men in the country, both in and out of Texas, and that it greatly damaged him in his reputation, and prevented him from ever afterwards getting railroad employment, or employment of any kind, notwithstanding he made repeated applications for employment; that the matter alleged to have been printed and circulated was false and scandalous, and was composed and published maliciously by appellant." Appellant excepted generally and specially to plaintiff's petition, and set forth that the matter was not a libel, for the reason that it was not defamatory of appellee; that the innuendoes set forth by appellee were not justified by the plain import and meaning of the words; and that appellant was a corporation, and not capable of bearing malice, and not liable for exemplary damages, etc. Appellant also pleaded a general denial, and specially one year's statute of limitation, and that said publication was composed and published by appellant in the proper and necessary course and conduct of its business as common carrier of freight and passengers; that, in the management of its numerous lines and different divisions of its railway traversing several different states, it was impossible to properly guard against the re-employment of unworthy men without some such list as the one complained of; that all of the information contained in the list was true, and especially the matter stated of and concerning appellee; that he was discharged for gross carelessness in his business as conductor for defendant in July, 1883, and for a total failure to observe or comply with the well-known rules and proper regulations of appellant; that the matter published was not false in any particular, but true, and that same was without malice, but done in discharge of a duty defendant owed to the public as well as to itself, by reason of the public nature of its business; and that said publication was absolutely privileged matter. Appellee, by trial amendment, pleaded that the printed matter was composed and published by A. A. Talmage, the fourth vice-president and general manager of defendant, to which plea appellant specially excepted and then pleaded a general denial. The court overruled all of appellant's exceptions, and the cause went to the jury, who, after hearing all the evidence and charge of the court, returned a verdict for appellee for $250 actual damage, $1,750 exemplary damage, and judgment was rendered in accordance with the verdict. On December 16, 1885, appellant caused a rule to be entered requiring appellee to give security for costs, and, this not having been done, on the fourth day of the succeeding term a motion to dismiss was filed. On the second day after this, appellee, in accordance with article 1438, Rev. St., filed an affidavit of inability to give security for costs, which had been made some days before, and it seems placed in the hands of his counsel. Appellee was not present, and his counsel filed a sworn statement to the effect that the rule had been entered at the former term after the cause was disposed of for the time and without notice; that it had been agreed between counsel that the cause would not be called for trial before the fifth week of the term then pending, which the record shows was observed; and that the affidavit filed had been prepared and placed in the hands of counsel, in consequence of a suggestion of the clerk that he would ask security for costs. The court overruled the motion to dismiss, and this ruling is assigned as error. The statute is no more stringent now than heretofore, and from the early days of this court it has been held error to dismiss an action, although a cost-bond may not have been filed within the time prescribed, if tendered before the case was actually dismissed. Cook v. Beasely, 1 Tex. 591; Rhodes v. Phillips, 2 Tex. 161; Hays v. Cage, Id. 504. The affidavit supplied the place of a cost-bond.

An exception to the petition was overruled, which questioned the capacity of a corporation to publish a libel, and denied appellant's responsibility for damages, actual or exemplary, on account of a publication which, if made by an individual, would be libelous. Whatever controversy may at one time have existed, it must now be held that a corporation may become civilly responsible for libel. Railroad Co. v. Quigley, 21 How. 202; Machine Co. v. Souder, 58 Ga. 65; Maynard v. Insurance Co., 34 Cal. 48; Maynard v. Insurance Co., 47 Cal. 207; Boogher v. Association, 75 Mo. 319; Association v. McDermott, 44 N. J. Law, 431; Aldrich v. Printing Co., 9 Minn. 133, (Gil. 123;) Post Co. v. McArthur, 16 Mich. 447; Hewitt v. Press Co., 23 Minn. 178; Vinas v. Insurance Co., 27 La. Ann. 367; 2 Mor. Priv. Corp. § 727; Townsh. Sland. & Lib. § 265; Cooley, Torts, 136. The rule now recognized is that corporations, like individuals, may become liable for damages exemplary in character, and the main controversy has been as to whether they become so liable whenever the wrong committed is such as would authorize the imposition of such damages on the guilty agent, or whether it must be shown that the managing agents of the company directed the wrongful act, or subsequently ratified it. That exemplary damages may be awarded when it is shown that a libel has been published with express malice, as in other classes of torts done maliciously or wantonly, is well settled. Post Co. v. McArthur, 16 Mich. 447; Hewitt v. Press Co., 23 Minn. 180; Hunt v. Bennett, 19 N. Y 173; Gilreath v. Allen, 10 Ired. 69; Cramer v. Noonan, 4 Wis. 231; Hosley v. Brooks, 20 Ill. 116; Snyder v. Fulton, 34 Md. 128; Townsh. Sland. & Lib. 506, 538.

The petition alleged that, by the language used, appellant meant and intended to charge that appellee was careless in his business and employment as conductor, and that he was so careless and unworthy of employment at the date of publication; and it is claimed that the language was not susceptible of the meaning attached to it, and that in so far an exception to the petition should have been sustained. It seems to us that such was the natural import of the language alleged to have been used, and that the ruling of the court in this respect was correct. Appellee alleged that his employment was that of conductor in the railway service, and that in this and all lower grades of that service, by long experience, he had become proficient, capable, and skillful, and that by reason of the publication complained of he had since been unable to obtain employment, whereby he was damaged. It is claimed, in view of these facts, that the publication was not...