Nettles v. Somervell

• Citation: 25 S.W. 658
• Parties: NETTLES v. SOMERVELL.
• Decision Date: 14 March 1894
• Court: Court of Appeals of Texas

25 S.W. 658

NETTLES v. SOMERVELL.

Court of Civil Appeals of Texas.

March 14, 1894.

Appeal from district court, McLennan county; L. W. Goodrich, Judge.

Action for libel by Joseph T. Somervell against R. C. Nettles. There was judgment for plaintiff, and defendant appeals. Reversed.

The other facts fully appear in the following statement by COLLARD, J.:

This is a libel suit, brought by appellee, Joseph T. Somervell, on the 2d day of October, 1888, against the appellant, R. C. Nettles, charging that Nettles procured and caused plaintiff's name to be listed in a certain small, printed, paper-back pamphlet issued by an association styled "The United States and Canada Dealers' Protective and Detective Association," which book purported to publish a list of names of persons who will not pay their honest debts, and who are unworthy of credit and trust. A part of the pamphlet is copied in the petition, — a portion of that part under the head of "Introduction," — which recommends the system as being the best known to collect "old, slow, and outlawed claims;" characterizing the person so listed as one who will not pay his just debts and as a dead beat, and declaring that "he neither pays you [the creditor] his old account, nor purchases goods from you now, but spends his money elsewhere, and any friend he has is either like him, or, if an honest man, prefers to see you paid." The introduction shows the object of the association to be to collect debts by publishing delinquent debtors, and declares, as alleged, "Our system is intended for such as can pay, but do not." The petition alleges that the introduction to the pamphlet contains much other libelous and slanderous matter applying to plaintiff, whose name is printed in the list of persons who are dead beats and delinquents. It also explains the meaning of the term "dead beat," and other terms and expressions, and as to the whole publication declares that by this publication is meant (and it was so understood by all persons who read it) that he was guilty of evil, corrupt, dishonest practices, and that he was not worthy of trust or credit; that said pamphlet was circulated and published to and among a large number of citizens, merchants, and business men, with whom he was accustomed to trade with advantage and profit, in McLennan and other counties in Texas, and read and understood by them, and by reason thereof they were induced to believe and think that he was a dead beat, and was guilty of evil, dishonest, and corrupt practices, and that he would fraudulently, willingly, wantonly, and knowingly contract and incur debts and liabilities which he never intended to pay or meet; and that the natural tendency of said publication was to bring him into disgrace and shame as a member of society, and into contempt among honorable men; and by reason thereof said persons suspect and believe he is dishonest, and will not pay his just debts, and is unworthy of trust and credit, and have and hold him in contempt, and refuse him credit, to his damage $20,000. The petition, at the outset, showed that plaintiff had and enjoyed, among his neighbors and acquaintances and persons with whom he dealt and traded in Falls county and other counties in the state, a good name, fame, and credit before the publication of the alleged libel, as a man who was willing and desirous of paying his just debts and liabilities that he might incur. The allegations of malice and falsity of the libel are full. The petition lays the time of the libel and publication "on November 1, 1887, and divers days thereafter." On April 6, 1889, plaintiff filed an amended petition, alleging the facts substantially as in the original petition, and stating more particularly the causes of his complaint, laying the time of the libel and its publication on the 1st day of November, 1887, "and on divers days thereafter, and on divers days prior thereto." Defendant excepted to the particulars set up in the amended petition, not stated in the original petition, because they stated a new cause of action, and were barred by statute of limitation of one year at the time the amendment was filed, and now insists that the court erred in overruling his exceptions. Verdict for plaintiff for $1 actual, and $599 exemplary, damages was rendered. Defendant has appealed.

Baker & Prendergast, for appellant. Jones, Kendall & Sleeper, for appellee.

COLLARD, J., (after stating the facts.)

In our opinion, the amendments amount to nothing more than a more definite and elaborate statement of the cause of action originally declared on. For instance, the statement in the amendment that plaintiff was a land and collecting agent doing business in Falls and surrounding counties for loan and mortgage companies, to loan and collect money for his patrons on commission, — a business that required that he should have a good character for honesty and integrity, etc., — was not a statement of a new cause of action. It was only a more specific statement of matter that had before been alleged. In another part of the introduction to the pamphlet was the form of a notice sent to the reported delinquent debtor from the main office at Chicago, giving the information that the person addressed was reported as refusing to pay a just debt, urging him to a settlement with his creditor, and informing him of the consequences of a final refusal, — that his name would be carried on the published reports of the association as a delinquent. The notice contained the following: "A great many have allowed their names to be entered in this list who cannot afford it, but have been careless about meeting their obligations. There are also some notorious dead beats, who have no shame or self-respect, and who have ruined what credit they once had, and do not wish to pay their just debts. In all kindness, we ask, to which class do you belong? These lists are revised and issued at regular intervals, repeatedly. Every day brings notices of some having paid up, and their names are dropped from the list, and their credit is restored. Would it not be well for you to arrange a settlement with the party you owe before ____, and let us drop your name from...