Musser v. Smith Protective Services, Inc.

• Decision Date: 14 January 1987
• Docket Number: No. C-4216,C-4216
• Parties: Bob H. MUSSER, Individually and d/b/a Musser & Associates, Petitioner, v. SMITH PROTECTIVE SERVICES, INC., et al., Respondents.
• Court: Texas Supreme Court

Page 653

723 S.W.2d 653

Bob H. MUSSER, Individually and d/b/a Musser & Associates, Petitioner, v. SMITH PROTECTIVE SERVICES, INC., et al., Respondents.

No. C-4216.

Supreme Court of Texas.

Jan. 14, 1987.

Rehearing Denied Feb. 25, 1987.

Michael C. Neel and Candace Sturdivant, Michael C. Neel & Associates, Houston, for petitioner.

Thomas P. Sartwelle and Roger Townsent, Fulbright & Jaworski, Houston, for respondents.

SPEARS, Justice.

This is a libel action concerning a written statement by Smith about Musser's business practices. The jury found the statement was libelous and was made with malice and awarded Musser compensatory damages of $15,000 and exemplary damages of $35,000. The trial court rendered judgment for Musser that the statement was libelous, but granted judgment notwithstanding the verdict for Smith on the malice and exemplary damages findings. The court of appeals reversed the trial court's judgment that the statement was libelous. 690 S.W.2d 56. We affirm the judgment of the court of appeals.

In an attempt to attract a client whom his security and polygraph testing firm previously served, Andrew Smith wrote the following letter to Charles Yust in July of 1976:

Dear Mr. Yust:

Thank you for the time you spent with me over the telephone this morning allowing me the opportunity to explain the services of our guard division, investigative division and our polygraph division, Truth Verification. Under the name Truth Verification, Inc. which was in the years past a separate corporation, we started commercial polygraph in the State of Texas in the early 1950s. We opened up the first commercial polygraph office in Houston in the late 1950s. With offices in Dallas, Fort Worth, San Antonio and Houston, we have pioneered commercial polygraph here in the State of Texas for the last 25 years.

I was certainly glad to hear that you are the security director of Sterling Electronics. In years past, our good competitor, Mr. Bob Musser, acted as the Sterling Electronics security director and although he did ocassionally refer us undercover and investigative business, we were, for all practical purposes, "wired-out" when it came to any polygraph services.

As I mentioned over the telephone, because of the fine job we did in training Mr. Bob Musser, we can vouch for his competence. He is a fine polygraph examiner and a very strong competitor. Originally, Sterling Electronics was a Truth Verification client. When Mr. Musser left us, he was able, as so many of our ex-employees have in the past, to relieve us of certain of our polygraph accounts. The two major accounts that he took were Sterling Electronics and Finger Furniture Company. When I originally spoke to Mr. Allen Finger, he was very pessimistic about the prospects of making a change. Two years ago, he told me that he would give me ten minutes of his time to explain our polygraph services after months of relentless attempts on my part to secure an appointment.

Today, we handle their polygraph requirements, their investigation requirements and they have [a] proposal from us under consideration to handle all of their security guard requirements. At this time, all I would ask is some of your time to make a presentation of our polygraph services. In terms of quality, special service, convenience and economy, I am confident that I can demonstrate our unequivocal superiority. I will be back in touch with you on Monday September 6, 1976. I would ask that you please give me a few minutes of your time. Until then, I will remain,

Very truly yours,

Andrew L. Smith

At the time of the letter's publication, Yust was personnel director for Sterling Electronics. Smith was vice-president of Smith Protective Services, Inc., which was formerly Truth Verification, Inc. Truth Verification, Inc., had employed Musser from March to December in 1962. In May of 1964, Musser formed his own investigating company named Musser & Associates. Sterling Electronics was under contract with Musser for polygraph testing of Sterling's employees and potential employees when Smith wrote the letter to Yust.

On the basis of the statements Smith made in the letter addressed to Yust, Musser sued Smith and Smith Protective Services, Inc. The trial court determined Smith's letter was capable of a defamatory meaning and submitted special issues to the jury. The jury answered that the statement "[w]hen Mr. Musser left us, he was able, as so many of our ex-employees have in the past, to relieve us of certain of our polygraph accounts" was libelous and made with malice. The trial court disregarded the malice findings. Smith and Musser both appealed. The court of appeals reversed the trial court's judgment, holding as a matter of law the statement was not reasonably capable of a defamatory meaning in the mind of an ordinary reader. On appeal to this court, Musser argues that Smith's remark was reasonably capable of a defamatory meaning and that the jury's findings of libel and malice should be upheld.

The law in the area of libel is well settled. In trying a libel action, the initial question for determination is a question of law to be decided by the trial court: were the words used reasonably capable of a defamatory meaning. ¹ Beaumont Enterprise & Journal v. Smith, 687 S.W.2d 729, 730 (Tex.1985); Taylor v. Houston Chronicle Publishing Co., 473 S.W.2d 550, 554 (Tex.Civ.App.--Houston [1st Dist.] 1971, writ ref'd n.r.e.). The court construes the statement as a whole in light of surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499, 504 (1950). Only when the court determines the language is ambiguous or of doubtful import should the jury then determine the statement's meaning and the effect the statement's publication has on an ordinary reader. Smith, 687 S.W.2d at 730; Gartman v. Hedgpeth, 138 Tex. 73, 157 S.W.2d 139, 141 (1941). The threshold question then, which is a question of law, is whether Smith's statements are reasonably capable of a defamatory meaning.

Smith's letter praises Musser's qualifications and competence. Smith also writes that Musser was "able, as so many of our ex-employees have in the past, to relieve us of certain polygraph accounts." This language, when read with the letter as a whole, is not ambiguous or of doubtful import. While "relieve us of certain accounts" is sarcastic and may perhaps be twisted or stretched to imply that Musser was...