Vacicek v. Trojack

• Decision Date: 14 December 1920
• Docket Number: (No. 7962.)
• Citation: 226 S.W. 505
• Parties: VACICEK et ux. v. TROJACK.
• Court: Texas Court of Appeals

226 S.W. 505

VACICEK et ux. v. TROJACK.

(No. 7962.)

Court of Civil Appeals of Texas. Galveston.

December 14, 1920.

Error from District Court, Wharton County; M. S. Munson, Judge.

Action for slander by Louis Trojack against Joe Vacicek and his wife. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Geo. P. Willis, of El Campo, and S. F. Rowan, of Wharton, for plaintiffs in error.

S. C. Cappel, Jr., of El Campo, and W. L. Hall, of Wharton, for defendant in error.

LANE, J.

This suit was brought by Louis Trojack, who will hereinafter be called appellee, against Joe Vacicek and his wife, Agnes Vacicek, hereinafter called appellants, to recover $10,000 actual damages and $20,000 exemplary damages, which he alleges he suffered by reason of certain slanderous statements made by appellants of and concerning him.

In this petition plaintiff, Trojack, appellee here, alleged as follows:

"(1) And for good cause of action plaintiff represents to the court that he is a good, true, and honest citizen of this state, and from the time of his birth has hitherto behaved and governed himself as such, and during all that time has been held, esteemed, and reputed a good name, character, and reputation, as well among a great number of his fellow citizens as among all his neighbors and acquaintances, and during all that time he has been free from the atrocious crime of theft and burglary.

"(2) That defendants, in no wise ignorant of the premises, and of plaintiff's good name, character, and reputation, but contriving and maliciously intending, not only to injure plaintiff and deprive him of his good name, character, and reputation, but also to cause plaintiff to be brought under and subject to the pains and penalties of the law provided against theft and burglary, on or about the 15th day of May, A. D. 1916, and at times prior thereto and subsequent to said time, speaking to plaintiff and to the people generally in the community in which plaintiff resides, falsely and maliciously, openly and publicly, pronounced and published the following false and scandalous words of and concerning plaintiff to wit: `That Louis Trojack, at night, stole chickens from our chicken coops, and fruit jars containing jelly and other fruit from our pantry.'

"(3) Plaintiff says that on account of and by means of publishing said false, scandalous, and malicious words, he has been injured, prejudiced, and damaged in his good name and reputation, and has been liable to be prosecuted for theft and burglary; and that many of his fellow citizens have withdrawn themselves from the acquaintance of plaintiff, and by reason of the premises plaintiff has undergone great mental suffering and distress.

"(4) Plaintiff says that said words spoken, pronounced, and published by defendants against and concerning plaintiff, as aforesaid, were and are false and untrue, and were willfully, maliciously, and falsely spoken, pronounced, and published by defendants for the purpose and with the intention, not only to injure this plaintiff and deprive him of his good name, character, and reputation, but also to cause plaintiff to lose the esteem and respect of his friends and neighbors and the public generally, and to be brought under the pains and penalties of the law.

"(5) Plaintiff would further show to the court that prior to the time said false and scandalous words were spoken and published by defendants, he had been promised a lease for land on which he now lives for another year by one Anton Zubeck, who purchased said land and premises on or about the 18th day of May, 1916, but that after such purchase the said Anton Zubeck heard of said malicious and false words concerning plaintiff, and was thereby influenced to discredit plaintiff's good name and reputation, and shortly thereafter informed plaintiff that he could not have the use of said land and premises for a longer period than it would take to harvest the crop on said land now being harvested, which action on the part of the said Anton Zubeck plaintiff alleges was due directly to the false and malicious words spoken by said defendants of and concerning this plaintiff.

"(6) Plaintiff would further show to the court that for more than three years past, and was at the time said malicious and false words were spoken of and concerning him, he was the president of the Slavonic Benevolent Order of Texas No. 40, located at Hilje, in Wharton county, Tex., and that said defendant Agnes Vacicek is a member thereof, and that they well knew that to circulate and publish a statement of and concerning said plaintiff, charging him with a crime which involves moral turpitude, would force and compel said plaintiff to resign his office as president of said order, that under the rules of said order, with which defendants are well acquainted and familiar, and by reason of said malicious and false statements and words spoken of and concerning plaintiff, said plaintiff was forced and compelled to resign his said office as president of said Slavonic Benevolent Order of Texas No. 40.

"(7) That by reason of the premises, plaintiff has sustained actual damages in the sum of $10,000.

"(8) And by reason of the willful and malicious acts of the defendants, as aforesaid, plaintiff is entitled to recover exemplary damages in the sum of $20,000.

"Wherefore plaintiff prays that the defendants be cited to appear and answer this petition, and on final hearing hereof for judgment against said defendants, jointly and severally, for the sum of $10,000 actual damages, and for the sum of $20,000 exemplary damages, and costs of suit, and for such other and further relief, special and general, in law and in equity, that he may be justly entitled to."

The defendants by the first paragraph of their answer demurred generally to the plaintiff's petition, and for further answer they presented their special exceptions to paragraph 2 thereof, as follows:

"Defendants further specially except to all that portion of said plaintiff's petition contained in paragraph 2 thereof, in which it is alleged that these defendants uttered certain slanderous words of and concerning plaintiff on or about the 15th day of May, 1916, `and at times prior thereto and subsequent to said time,' in this:

"(a) Because the time is indefinite and uncertain as to the allegation of time, and is insufficient to apprise these defendants of the date of said alleged slander other than that alleged to have occurred on or about the 15th day of May, 1916.

"(b) Because it is alleged in said petition that said alleged slanderous words were uttered and spoken to plaintiff himself by said defendants, and said allegation is insufficient to charge any actionable slander in so far as the said words spoken to said plaintiff himself are concerned.

"(c) And further because it is not alleged in said petition the name of other persons than the plaintiff to whom said alleged slanderous words were uttered or spoken by these defendants, and is too vague, uncertain, and indefinite to apprise these defendants of said alleged slander.

"Wherefore, defendants pray judgment of the insufficiency of said allegations."

Answering to the merits, defendants by the fifth paragraph of their answer denied generally each and all of the allegations of the plaintiff's petition, and, answering further, they alleged that the plaintiff is not a man of good character or reputation, but, on the contrary, is a person of bad reputation in the community in which he resides. They further alleged that the words alleged to have been spoken by them concerning the plaintiff are true; and that the plaintiff did, in fact, enter their premises and steal their chickens, their fruits, jelly, and eggs. They alleged further that, after they had found some of their chickens in possession of the plaintiff, and had been convinced that plaintiff had stolen their chickens and other property, the defendant Agnes Vacicek went to the house of one Leo Peterson, who was then in control of certain land and premises then in possession of the plaintiff as a tenant, for the purpose of inducing Peterson to refuse to rent said premises to the plaintiff, Trojack, longer; that on this visit to Peterson's house she did not see him, but that she saw his wife, and that she did make to said wife the statement, substantially, as alleged by the plaintiff, but that such statement was made without malice, and in an honest belief of the actual truth thereof, and in an honest desire to rid herself of an undesirable neighbor who she had reasonable cause to believe had committed the theft of her property; that such statement was made in good faith to an interested party upon a proper occasion, in an honest desire to secure the aid of Mr. Peterson in the protection of her rights, therefore such communication was privileged.

The court overruled the general demurrer and all special exceptions of defendants, and thereafter, upon trial before a jury, a verdict was returned in favor of the plaintiff for $1,000 actual damages. The defendants have appealed.

In view of the fact that the seventh assignment presents a complaint of the action of the court in overruling appellants' special exceptions to plaintiff's petition, we shall first consider the complaint there made.

From an inspection of plaintiff's petition, set out above, it is apparent it does not allege that the alleged slanderous words were spoken to any definitely named person, except to the plaintiff himself. Appellants excepted specially to the petition, first, because the date of the alleged slander was too...