Montgomery Ward & Co. v. Peaster

• Decision Date: 07 January 1944
• Docket Number: No. 2428.,2428.
• Citation: 178 S.W.2d 302
• Parties: MONTGOMERY WARD & CO. et al. v. PEASTER.
• Court: Texas Court of Appeals

178 S.W.2d 302

MONTGOMERY WARD & CO. et al. v. PEASTER.

No. 2428.

Court of Civil Appeals of Texas. Eastland.

January 7, 1944.

Rehearing Denied February 11, 1944.

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Appeal from District Court, Taylor County; M. S. Long, Judge.

Action by G. H. Peaster against Montgomery Ward & Company and others for slander. Judgment for plaintiff, and defendants appeal.

Reversed and remanded.

Cox & Hayden and Wagstaff, Harwell, Douthit & Alvis, all of Abilene, for appellants.

Scarborough, Yates & Scarborough, of Abilene, for appellee.

FUNDERBURK, Justice.

This is a slander suit. G. H. Peaster, formerly employee of Montgomery Ward & Company and assistant manager, in Abilene, of said employer brought this suit against Montgomery Ward & Company, E. F. Pounders, and Willmark Service System, Inc. The alleged defamatory words consisted of a question by E. F. Pounders, manager aforesaid, directed to Mrs. Sarah Berman, employee of Willmark Service System, Inc., and the latter's answer to the question, as follows:

"Q. [Pounders pointing to Peaster] Is that the man who sold you the two pairs of shoes for $2.00 and did not ring up the money? A. He is the man who sold me the shoes for $2.00 and did not ring the money up."

Willmark Service System, Inc., was under contract with Montgomery Ward & Company to furnish services of such nature that the alleged purchase of two pairs of shoes by Mrs. Berman and the reporting to the employer of any violations of rules or acts of dishonesty was in the line of her duty.

In addition to the alleged slander, a conspiracy by all the defendants—and in pursuance of which said question was asked and answer given—to besmirch and blacken the reputation of plaintiff was alleged.

In a jury trial, upon rendition of a special verdict in favor of plaintiff, including a finding of damages in the sum of $1,000, judgment was rendered accordingly. The defendants have appealed.

The first point is to the effect that the alleged defamatory words do not amount to a charge or accusation by any of the appellants that Peaster stole the $2. In other words, the point is made, in effect, that the nature and import of the words related merely to the violation of a store rule and did not import an accusation that plaintiff stole the $2 or was dishonest.

If it be assumed that the question and answer show a defamation for which Willmark Service System, Inc., would be liable, it is not clearly apparent that the same would be true of Montgomery Ward & Company or E. F. Pounders. There was no evidence, we think, to support the allegations of a conspiracy. If, for example, the question by Pounders had been Is that the man you say sold you two pair of shoes for $2 and did not ring up the money?, the question and answer, in our opinion, as a matter of law, would not have constituted an accusation by Pounders of any wrong on the part of Peaster. A question which by its statement implies the assertion of no fact, the statement of which may be defamatory, is not rendered defamatory merely by the answer. If, therefore, one party asks such a question, which is answered by another, only the one so answering would, in our opinion, be chargeable with the defamation. But, as we see it, the alleged question of Pounders implied the assertion that some employee of Montgomery Ward & Company had sold Mrs. Berman two pairs of shoes for $2, and "did not ring up the money". The question itself was, therefore, an invitation to Mrs. Berman to make a defamatory answer, not as to some uncertain employee, but as to the plaintiff. If, therefore, the alleged defamatory language was a defamation by the employee of Willmark Service System, Inc., it was also a defamation by Pounders and, being made in the course of his employment, one for which Montgomery Ward & Company might be liable.

It is a question of some difficulty, but one necessary, to be determined, whether the alleged defamatory language, if defamatory, was slanderous per se. Is it a matter of common knowledge that a statement that a store clerk made a sale and did not ring it up on the cash register the equivalent of a statement that he stole or embezzled the money? That, it is believed, is another way of stating the question. After careful consideration we are inclined to think that assuming the language to be capable of being shown to be defamatory, it is not defamatory or slanderous per se. Pittsburgh, A. & M. Pass. Ry. Co. v. McCurdy, 114 Pa. 554, 8 A. 230, 60 Am. Rep. 363.

It is a reasonable inference that plaintiff by alleging its meaning considered that the language required explanation in order to show its defamatory import. Such an explanation is the function of an innuendo. If particular language alleged to be defamatory may, or may not, be so, according to other facts or circumstances, then an innuendo is required in order to tender as an issue the fact that the words conveyed to hearers the defamatory meaning. In a slander suit, not involving an imputation of unchastity in a female, if an innuendo is required, then the allegation and proof of special damages is also required in order to authorize a recovery. Hatcher v. Range, 98 Tex. 85, 81 S.W. 289; Morrison v. Dean, Tex.Civ.App., 104 S.W. 505; Hirshfield v. Forth Worth Nat'l. Bank et al., 83 Tex. 452, 18 S.W. 743, 15 L.R.A. 639, 29 Am.St.Rep. 660; Knapp & Co. v. Campbell, 14 Tex.Civ.App. 199, 36 S.W. 765; Fry v. McCord, 95 Tenn. 678, 33 S.W. 568; 27 Tex.Jur. p. 590; 36 C.J. p. 1150, § 17; 17 R.C.L. p. 264, § 14; 33 Am. Jur. p. 39, § 5. ("Words which are libelous per se do not need an innuendo, and conversely, words which need an innuendo are not libelous per se.")¹ Plaintiff's petition did not allege and the evidence did not show, special damages, and hence we conclude that appellants' said second point presenting that matter must be sustained.

Appellants' third, fourth and fifth points, insofar as they assume, or present as a contention, that if only employees of defendants heard the alleged defamatory words, that would not constitute an actionable publication of a slander, seems to us to be untenable. Employees of Montgomery Ward & Company, if any, who had no duty with reference to the transaction, would, we have no doubt, be the same as any other members of the public. Any other employee would be no different except with reference to the question of privilege.

But insofar as said points present the contention that it was a necessary issue whether there was any hearer of the alleged defamatory words who understood them in their defamatory sense, and that there was no proof upon that issue, we think they should be sustained. The real issue was publication. It is just as essential in a slander case as in a libel case that the defamatory words be published, that is, heard by one or more third persons. If the language is susceptible to a meaning not defamatory and another meaning which is defamatory, it would not be a publication if, in fact, they were only heard by those who understood them in their nondefamatory sense. Hence, we think, evidence that at least one hearer understood the words in the defamatory sense was necessary to raise the issue. In Democrat Publishing Co. v. Jones, 83 Tex. 302, 18 S.W. 652, 653, the Court said: "The language of the publication is capable of the meaning ascribed to it by the innuendos, and, in such case, it should be left to the jury to say whether, in fact, it was so understood." See also Hitzfelder v. Koppelmann, 30 Tex. Civ.App. 162, 70 S.W. 353. Upon this point Corpus Juris says: "Since in order to constitute a publication it is necessary that some third person understood the defamatory matter, where the words are capable of conveying the defamatory meaning claimed for them, and also equally capable of conveying some other and innocent meaning, there must be averments that third persons understood the language as conveying the alleged defamatory meaning." 37 C.J. p. 34, § 355, and authorities cited. It would seem to follow that if such averment be necessary, proof of the averment is also necessary.

We find it unnecessary to determine the point that there was no evidence to show that any third person heard the alleged defamatory language. That we recognize as a close question, and its determination becomes unnecessary, since we have no difficulty in reaching the conclusion that there was no evidence that any third person who may have heard the defamatory words understood them to accuse the plaintiff of theft or dishonesty.

We are of the opinion that the court erred as contended by the seventh point, in admitting the testimony of W. D. Ray and wife regarding a conversation in Austin, Texas, made long after the alleged slander, by Stephenson, an employee of Montgomery Ward & Company, to...