Rivers v. Feazell

• Decision Date: 02 March 1933
• Docket Number: No. 2369.,2369.
• Citation: 58 S.W.2d 133
• Parties: RIVERS v. FEAZELL.
• Court: Texas Court of Appeals

58 S.W.2d 133

RIVERS v. FEAZELL.

No. 2369.

Court of Civil Appeals of Texas. Beaumont.

March 2, 1933.

Appeal from District Court, Nacogdoches County; C. E. Brazil, Judge.

Suit by Mrs. Effie Rivers against J. Fred Feazell. From a judgment for defendant, plaintiff appeals.

Affirmed.

Adams & McAlister, of Nacogdoches, for appellant.

R. W. Fairchild and J. J. Collins, both of Lufkin, for appellee.

WALKER, Chief Justice.

This is a suit for slander, filed in the district court of Nacogdoches county by appellant, Mrs. Effie Rivers, against appellee, J. Fred Feazell, who on September 19, 1931, was operating a café in the city of Nacogdoches, Nacogdoches county, Tex., and for whom appellant was working as cashier on the date mentioned. On the morning of that day, appellant's son, Keith Rivers, ate his breakfast at appellant's café and went by his mother's desk to pay for his breakfast. Appellee, being suspicious of appellant, secretly watched the transaction, and, after Keith Rivers left his mother's desk, appellee took charge of the desk and the cash register which she was operating. After ringing up a few orders, he took the record of the morning's work out of the machine, with some of the tickets, and went back to his office. In a short while he called appellant to his office, which was in the balcony just above the dining room of the café. When she entered his office, she found appellee and with him his son-in-law, Clifton Tannery, who was the general manager of the café and the bakery which appellee operated in connection with his café. This suit rests upon what occurred between appellant and appellee at that time; the facts being pleaded by appellant as follows:

"That on the 19th of September, 1931, the plaintiff, while in the discharge of her duties in defendant's place of business, which was then and there being patronized by various and sundry customers and citizens, who were then in said place of business for the purpose of being served with goods, wares and merchandise as sold by the defendant, the defendant without any reason, cause or provocation, called to the plaintiff from the veranda where defendant was standing, which is located in defendant's place of business over and above the cashier's stand where the plaintiff was working, to come up where he, the defendant, was with Clifton Tannery and in the presence and hearing of others who were in the store and those who could hear and understand what was being said by the defendant to plaintiff, and that after the plaintiff reached the veranda where the defendant was, as aforesaid, the defendant in an angry, irritable and agitated mood said to plaintiff: `Mrs. Rivers, I have the deadwood on you, you can just get your hat and things and go home and I will mail your check to you.' And at this instance plaintiff replied: `Mr. Fred, what do you mean?' And the defendant, in a sullen, morose and sulky manner, replied: `A while ago when Keith (meaning plaintiff's son) went to pay his bill, you did not take any money.' And at this instance the plaintiff replied: `Why, Mr. Fred, I certainly did. He laid a quarter down on the counter and I picked up a nickel that was already laying there and gave it to him and took the quarter.' And at this the defendant, with vehemence, emphasis, fervency and intensity and in a cold-blooded manner, with malicious expression on his face, said: `No, you did not. There was no money passed at all; you might have registered the nickel laying on the counter, but you never registered the money you got from your son.'"

The other allegations of the petition were sufficient to state a cause of action for slander. The judgment was entered upon a verdict instructed in favor of appellee, from which appellant has duly prosecuted her appeal to this court.

For the purposes of this appeal, we concede that appellant offered proof that appellee uttered the defamatory words at the time and place and under the circumstances charged in the petition, though he seriously insists by a counter proposition that a fatal variance exists between the proof and the allegations of the petition. On this concession the two points in the case are "publication" and "privilege."

It is said by 36 C. J. 1227, that, "in order to constitute a publication it is necessary that some third person understood the defamatory matter as relating to plaintiff." Defamatory words uttered only to the person concerning whom they are spoken, no one else being present or within hearing distance, or no one being present who is not protected by "privilege," are not actionable. Upon this proposition it was said, in Lemaster v. Ellis, 173 Mo. App. 332, 158 S. W. 904, 909: "There is a school of philosophy teaching that sound does not exist except in the ear of the hearer, and that Niagara rolls on in silence unless some ear is there to hear. While this may not be correct in the realm of acoustics. it is correct in the law of slander, with the further fact that no one hears who does not understand." See, also, 17 R. C. L. 315, 316; Cash Drugstore v. Cannon (Tex. Civ. App.) 47 S.W.(2d) 861. Appellant does not controvert these propositions, but insists that she raised an issue of fact within these propositions sufficient to send her case to the jury. This contention was properly denied by the trial court. The evidence is conclusive that no one except appellant, appellee's son-in-law, and the sheriff of Nacogdoches county heard appellee utter the defamatory words. The patrons of the café who were present during the controversy were called as witnesses and denied that they heard anything that was said. One of them testified he heard a remark by appellant, but was not asked what it was.

Appellant insists that she raised an issue that some one may have been present who was not called as a witness. We have examined carefully every word of the testimony and must deny this contention. As we construe the evidence, every person in the café within hearing distance of appellee's office was offered by him as a witness and testified affirmatively that they heard nothing that was said.

Appellee's cook, Theo...