« EelmineJätka »
certificates in the hands of said trust com- , privileged communications; that under the pany, so as to conform to the change of usage and custom of the business, and acdestination. That, under his contract, plain- cording to the course of dealing between the tiff had the right to make this change. But plaintiff and the defendant in regard to the that defendant wrongfully and maliciously shipments of cotton under said contract, objected to and attempted to prevent this where plaintiff desired to make a shipment from being done, and to that end forbade the upon a boat not named in the rate sheet or trust company to permit such change in the to a point not noted on the rate sheet, plaincertificates. That such attempts of the de- tiff furnished to the defendant, either perfendant to interfere with the plaintiff's busi- sonally or by his duly authorized agent, L. ness and cripple him therein succeeded for a A. Wight & Co., an application for permis. time, but by January 30, 1915, plaintiff pre- sion to ship on given boat or to such unvailed upon said trust company to recognize named port, and requested a rate for such his rights and finance such shipment and en- shipment, etc. It was further alleged that able the same to leave Galveston.
during December, 1914, the war between 4. It was alleged that said false and slan- Germany and her allies and Great Britain derous statements, made by the defendant's and her allies was in progress, and that the attorney Bigbam, to Max May, aforesaid, harbor of Bremen and the approaches therewere made with the full knowledge and no- to were mined and hedged about by wartice of all the material facts and were au ships of Great Britain and her allies, and thorized by the defendant company through that the steamship Dacia was a German its president. That such acts and conduct steamship, owned and operated by German on the part of defendant were intended and people under German registry at the outcalculated to interfere with the contractual break of the war, and that the same was relations then existing between the plaintitf transferred after the beginning of the war and the trust company. That as the direct to American registry; that it was a notoriand proximate result, contemplated and ex
ous fact, known to plaintiff, that it was the pected by defendant at the time, from such willful and malicious wrongs, the plaintitf war policy of Great Britain and France to
refuse to recognize any change of ownership was damaged in the following respects and and registry of boats from German registry to amounts:
(a) The sailing of said shipment was de- neutral registry after the outbreak of the war, layed for nine days, and the plaintiff lost the all others that Great Britain, France, and
and it was further known to plaintiff and to interest on his investment for said time, to Russia had announced the intention of caphis damage in the sum of $2,000. (b) That planitiff was caused and forced to
turing and confiscating such boats as those
that changed their registry. Other defensincur great expense in the way of sending telegrams and telephones, and in the keep the conclusion reached by us, we do not
es were specially pleaded; but, in view of ing of a man at Galveston to aid in removing think it necessary to further mention them. all obstacles to the starting of the shipment, to plaintiff's damage in the sum of $1,500.
The cause was submitted to a jury under (c) That plaintiff became liable for de special issues, and a verdict was rendered inurrage on account of the detention of said for plaintiff in the aggregate sum of $102,ship for the said nine days, amounting to 964.12, upon which verdict the court render. $9,000.
ed judgment. The items making up this (d) That plaintiff's business as a cotton judgment were as follows: dealer was practically destroyed during said
Interest, $1.148.42; expenses for telegrams nine days, while the necessary expense of and telephones, etc., $202.90 ; demurrage for operation of his business during said time the nine days, $1,620; loss of net profits durcontinued, for which plaintiff asked $10,000. ing said period, $10,000; injury to credit,
(e) That plaintiff's credit and reputation in standing, and reputation, $50,000; mental the business world, in the cotton trade, and suffering, $25,000 ; exemplary damages, $15,among bankers engaged in financing cotton 000. transactions, were greatly injured, and he
The record in this case is perhaps the was caused to experience great annoyance, most voluminous of any heretofore filed in humiliation, and mental suffering, for which this court. The transcript consists of 719 he asked $100,000.
pages; the statement of facts of 445 pages; (f) That he was entitled to exemplary dam- appellant's brief of 665 pages, including 121 ages in the sum of $50,000.
assignments of error and numerous pr posiDefendant answered by a general demur- tions under almost every one. Hence it will rer and special exceptions, a general denial, be readily recognized that the consideration and further pleaded in substance as follows: of this appeal has called for the expendi
That the statements alleged to have been ture of much time and the examination of a made by defendant's agent to Max May multitude of authorities. It would be imwere made to a person having a community practicable for us to attempt to discuss each of business interest with defendant and assignment presented, and yet keep the were made in good faith, and hence were opinion within proper limits. Nor do we
ind it necessary so to do, and will as far as Owens has a blank policy, and is authorized, possible group the assignments involving the in ordinary cases, to write insurance, and we same or kindred questions of law. For in-are very glad to give it to him; but in this parstance, the first seventeen assignments are ticular, case I think he has written too much, directed to the action of the court in ad- not only for the company, but for your sake.
Mr. Bigham told me specifically that mitting over the objection of defendant tes while he did not claim the issuance of the intimony of plaintiff and third parties as to
surance to be unauthorized, yet he considered what Max May, of the Guaranty Trust Com the amount written by Owens too large for us pany, had told said witnesses about the to accept in any one company, or for his own statements claimed to have been made by company to carry for Owens, or for anybody Henry J. Bigham to said May, to the effect else. * I do not believe that at the first that the certificates of insurance on the interview with me—and we had several–Mr. Dacia in the amount named were unauthor- Bigham said anything about reinsurance. At
subsequent interviews, I asked Mr. Bigham ized, and that the Providence-Washington whether he could not secure reinsurance with Insurance Company did not have any rein- other companies, and he told me then that he surance on said shipmeut. Under this group had tried, but that his endeavors along in that of assignments, it is shown that the testi- direction had not been successful, or not very mony of plaintiff himself, and witness Park- | successful. Later on, of course, I learned that er, Robert Harrison, plaintiff's. attorney, and some of the insurance had been placed in anothers, was admitted, said witnesses testify- other company or companies, but I have forgoting as to statements made to them by Max ham told me about this, and he told me several
ten what proportion of it.
* Mr. BigMay to the effect that Bigham, attorney for times; he did not tell me only once he did not the defendant, had stated to May that the is-want me to understand that Owens exceeded suance of the certificates on the Dacia by his authority, but merely that Owens committed plaintiff was unauthorized, and that the an act which was, perhaps, not strictly correct, Providence-Washington Insurance Company | in writing such a large amount of insurance had no reinsurance on the shipment of cot- without previously consulting the company with ton. To all of this testimony the defendant regard to that. objected, on the grounds that it was incom
In the second deposition the witness petent, prejudicial, hearsay, and that it was stated : an effort to impeach the plaintiff's witness Max May, etc. Two depositions of the wit- that he had tried to get reinsurance on this Da
"I believe Mr. Bigham did tell me at one time ness Max May were taken by plaintiff, cia cotton, but had not succeeded. In answer to one dated October 19, 1916, and the other my suggestion about obtaining the insurance, February 8, 1917. Both were offered in he stated that he had endeavored to get some, evidence by plaintiff. In the first deposition but found it impossible. The impression he the witness failed to state that Bigham had created in my mind was that, if he had any retold him on the occasion of Bigham's visit to insurance at all, it was a very insignificant
amount. the Guaranty Trust Company, about Jan
Mr. Bigham told me that
while Owens had a blank policy of insurance, uary 21, 1915, that plaintiff was not author- under which he could write out insurance to ized to issue the certificates of insurance in any amount he deemed wise to do so, neverthe amount therein provided, and, further, theless he thought Mr. Owens had exceeded his the witness did not state positively that Big. authority in having so large an amount, thus ham in that conversation had stated to him endangering the Providence-Washington, that the plaintiff had not been able to se- well as the Guaranty Trust Company, in the
any reinsurance on the shipment. event of a loss of the steamer." From the following quotations from May's
[1-4] The appellee justifies the admission first deposition the character and purport of of this testimony on the ground that through the testimony in the two respects indicated the introduction of the deposition of the witmay be seen, to wit:
ness Bigham, who denied making any state"Now, I quote this conversation from mem- ment to May to the effect that the act of ory, because there is nothing in our books or plaintiff in issuing the certificates in the records to show exactly what Mr. Bigham said amount stated was unauthorized, and that to me, and I quote to the best of my knowledge the defendant company had no reinsurance and recollection. He said, of course, his company was a comparatively small company; that upon the shipment; and, also, by reason the amount of insurance we were carrying in of the cross-interrogatories propounded to that company, for a bank like ours, was un
the witness May by the defendant, in which doubtedly too large; and I fully agreed with cross-interrogatories quotations were made him. He said that Owens, while he had a from the first deposition and the witness was blank policy of his company and was authorized | asked if he had not made those statements, to write insurance under the blank policy, nev- which he acknowledged, and which he statertheless, in writing it for the amount that he ed to be true that the defendants sought to had, without first consulting him, he considered that he had gone beyond what he should have show that the witness had fabricated his done. Now, Mr. Bigham did not say that the testimony contained in the last deposition insurance was unauthorized. He simply told with reference to these two issues. We do me: 'I don't say it is unauthorized, because Mr. not understand that such facts would justify
the introduction of this character of testi- | motive or influence existed. Insurance Co. v. mony, of which complaint is made in this Eastman, 95 Tex. 34 [64 S. W. 863); Lewy v. group of assignments. While appellant cites Fischl, 65 Tex. 311. But it is no ground for a number of authorities in support of the the introduction of such declarations that other proposition that the testimony attacked was
witnesses have merely contradicted the witness inadmissible for the purpose of impeach- sought to be sustained by testifying to a differ
ent state of facts. 1 Greenleaf on Evidence, ment, we do not deem it necessary to dis- | 469; 3 Jones on Evide 871." cuss the rule of evidence discussed in those authorities, because appellee disavows any
Nor would it be admissible to introduce intention to impeach his own witness, and relies alone for the claimed admissibility of to explain conflicts, in the testimony of said
prior unsworn statements of the witness May this character of testimony on the theory witness, between the testimony contained in that it was admissible for the purpose of the first and the second deposition. G., C. fortifying the testimony given in the second & S. F. Ry. Co. v. Sullivan, 190 S. W. 739. deposition, for the claimed reason that ap- Plaintiff below offered both depositions, and pellant had sought to impeach plaintiff's therefore vouched for the credibility of the witness May and to show that his testimony witness as to both depositions. In the secin the second deposition was fabricated. As ond deposition, on cross-examination, the is stated in Insurance Co. v. Eastman, 95 witness admitted that he made the answers Tex. 34, 37, 64 S. W. 863 :
contained in the first deposition and about “Upon the subject of admitting the testimony which he was asked. We think there can of the former declarations of a witness in sup- be no question as to the inadmissibility of this port of his testimony given upon the trial, there testimony, and we are further of the opinis a great contrariety of opinion as to the cir- ion that material error was committed in cumstances which render such admission proper. But two_rules are reasonably well estab- admitting said evidence over the objections lished: (1) That in the absence of evidence of the defendant. The plaintifrin open impeaching the credibility of a witness, such court elected to rely on his two allegations testimony is never admissible. Moody v. Gard-contained in his petition, to wit: (1) That ner, 42 Tex. 414. (2) That whenever a witness Bigham had stated to May that the issuance is sought to be impeached by showing that he of the certificates in the amounts stated was has made declarations inconsistent with the unauthorized; and (2) that defendant had testimony given by him upon the trial and the
no reinsurance on the shipment. There was tendency of such impeaching evidence is to show that the testimony of the witness is, by a sharp conflict presented as to whether or reason of some motive existing at the time of not this statement had been made by Bigthe trial or of some influence then operating ham, and to admit this character of testiupon him, fabricated, it is proper to admit mony in an effort to fortify the version of evidence of his former declarations which cor- what occurred between May and Bigham on roborate his testimony, provided such declara- the occasion of the conversation, and as testions were made at a time when no such motive tified to by May in his second deposition, or influence existed.”
was of a nature reasonably calculated to [5-7] The fact that the testimony of the mislead the jury into believing that they witness May was contradicted by the tes. could accept the testimony of Owens, Hartimony of Bigham, the other party to the rison, Parker, and others as to what May conversation in question, would not make this had told them as evidence that Bigham had character of evidence admissible for the pur- in fact made the statements complained of pose intended or for the purpose of showing to May. For this error the judgment must that in fact Bigham had made the state- be reversed and the cause remanded. ments to May as testified to by May in his
[8, 9] Under its eighteenth assignment, apsecond deposition. Mere conflict of evidence pellant urges error in the court's failure to will not justify the admission of this char- give its special charge peremptorily instructacter of testimony. Newton v. Alexander, ing the jury to find for the defendant, on 44 S. W. 416, writ denied. In this case the the ground that there was no evidence of court says:
sufficient probative force to authorize the “The general rule is that evidence of what a fendant's representative making the alleged
submission to the jury of the issue of dewitness has said out of court cannot be received to sustain or fortify his testimony. To this statement to the effect that the issuance of general rule, however, there seems to be a well- certificates of insurance was unauthorized. recognized exception, viz., that where an effort While we agree with appellant that the tesis made to impeach the credibility of a witness timony, to the admission of which the first by evidence imputing a design to misrepresent seventeen assignments are directed, was infrom some motive of interest, or that by rea- admissible for any purpose disclosed in the son of some influence operating upon him at hearing, and most certainly was it inadthe time his testimony is a fabrication, it is missible for the purpose of showing that the proper, in order to repel such imputation, to admit evidence of his former declarations which statement imputed to Bigham had in fact corroborate his testimony; provided such dec- been made (T. & P. Ry. Co. v. Johnson, 90 larations were made at a time when no such Tex, 304, 38 S. W. 520), yet we are of the
opinion that the testimony of May as given if they should believe that Bigham did state in his second deposition does make it a questo May, vice president of the trust company, tion for the jury as to whether in fact the that the issuance by Owens of the insurance statements imputed to Bigham were made or certificates against the Dacia cargo was unnot. Under this assignment, it is urged that authorized, and they should further find that there is no evidence to show, even though it said statement was untrue, and that in makbe admitted that Bigham did make the state- ing it said Bigham was actuated by malice, ments imputed to him, that in so doing he then said statement was in law slanderous, was acting as the agent and representative and in such a case the law presumes damof the defendant, or that he was so author- age to the person slandered and does not re. ized by the defendant, or that it was with- quire him to prove how or to what extent such in the actual or apparent scope of his agen- damage was suffered; hence, if they should cy to make said statements. It is in evidence so find, and should further find that there that Mr. Bigham and his firm acted as the was no proof as to what amount, if any, attorneys of the defendant company in the plaintiff was damaged in this respect, yet Dacia matter, and that they had no other they would be authorized to find such an attorneys; that the president of the defend- amount of damage as the jury believed from ant company stated that it was his under the nature and circumstances of the case standing that Bigham was “to keep in touch resulted to Owens from the speaking of said with what was occurring on this shipment, words by Bigham. To the giving of this in which we were so vitally interested." instruction, over objection, the twentieth asSeibels testified that Branch, president of signment is directed. The court evidently, defendant, wired and telephoned him that by so instructing the jury, concluded that he had employed Bigham's firm in the Dacia the words imputed to Bigham were actionmatter, and instructed him to call on the able per se, and therefore it was not in. Guaranty Trust Company. Branch further cumbent upon plaintiff to allege or prove testified he instructed Bigham on January any special damage. 25 Cyc. 959, on S. & 22d "to explain our position with the Guar- L. But defamatory words to be libelous anty Trust Company, which he did in his per se must be of such a nature that the letter of January 26 (25), 1915.” The test court can presume as a matter of law that of the liability of the principal is, not wheth- they will tend to disgrace and degrade the er the agent was authorized to do the par-party or hold him up to public hatred, conticular thing which constituted the wrong tempt, or ridicule, or cause him to be shuncomplained of or caused the injury for which ned and avoided. 25 Cyc. 253, and cases recovery is sought, or whether it was done cited. In Zeliff V. Jennings, 61 Tex. 458, in violation of the principal's orders, but 466, the Supreme Court, speaking through whether it was done while he was engaged Justice Stayton, says: in his principal's business and within the
“There is some conflict of opinion as to the apparent scope of his authority. Jackson v.
character of crime which must be imputed by Walls, 187 S. W. 676; Ry. Co. v. Neel, 26 words to make them actionable per se.
We S. W. 788, in which Story on Agency, $ 452, have not the time or disposition to review, in and Mechem on Agency, 8 734, are cited. In this opinion, the cases bearing on this question, the last-cited case it is further said:
but we believe that the great weight of author
ity establishes the proposition that: An accu“The master who puts the servant in a place sation is actionable whenever an offense is of trust or responsibility, or commits to bim charged which, if proved, would subject the the management of his business or the care of accused person to à punishment, though not his property, is justly beld responsible when such as is known in the books, technically, as the servant, through lack of judgment or discre
an ignominious punishment, if the accusation be tion, goes beyond the strict line of his duty or such as to bring disgrace on the person of authority, and inflicts an injury on another. whom the words are spoken; words which imAs to whether the acts complained of were pute to the person of whom they are spoken a within the scope of the agent's employment is character, a moral turpitude, which would exa question of fact to be determined by the clude him from association' with respectable jury."
persons. Character for moral turpitude bars
the doors of society against its possessor, as Hence we overrule the eighteenth assign- completely as could a charge against one of ment.
having the most loathsome disease, which is [10-12] Under special Issue No. 17, the held to be actionable per se; and it is difficult
to see, if the one be actionable per se, why the court submitted the question of injury to
other should not be." plaintiff's credit, standing, and reputation in the cotton trade and in the business world
In 25 Cyc. 249, it is said: among bankers engaged in financing cotton
"General damages are those which the law transactions, as a proximate result of the act of Bigham in inducing the Guaranty essarily result from the publication of the de
presumes must actually, proximately, and necTrust Company to delay the sailing of the famatory matter. The latter arise by inferDacia, and in connection with the submis- ence of law and are not required to be proved sion of this issue instructed the jury that I by evidence and are allowable whenever the immediate tendency of the words is to impair ( 765, by the San Antonio Court of Civil Applaintiff's reputation, although no actual pecun- peals: iary loss has in fact resulted; the words from which the law presumes injury in such case be
"But to sustain an action for libel the plaining deemed actionable per se. All other def- tiff must either show special damage, or the amation is actionable per quod, that is,,, spe- court can legally presume he has been degraded
nature of the charge must be such that the cial damages must be alleged and proven."
in the estimation of his acquaintances or of the But it has been held that written or print- public, or has suffered some other loss, either ed publication, which does not attack the his domestic or
in his property, character, or business, or in
social relations, in conseveracity of the party against whom it is quence of the publication.'" made, but merely charges a mistake in judgment, is not libelous per se, as such a charge See Odgers, S. & L. p. 18; Cooley, Torts, does not effect the reputation of the party. p. 240 (206); Zeliff v. Jennings, 61 Tex. 458; See cases cited in 25 Cyc. p. 256, under sub- Publishing Co. v. Jones, 83 Tex. 302, 18 S. W. note 42, including the case of Sanders v. 652; Hirshfield v. Bank, 83 Tex. 457, 18 S. Hall, 22 Tex. Civ. App. 282, 55 S. W. 594. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. While in some cases it has been held that 660; Belo v. Fuller, 84 Tex. 450, 19 S. W. the publication of a charge that a person 616, 31 Am. St. Rep. 75; Belo v. Wren, 63 has been guilty of a breach of trust or a Tex. 686. If the words used are not reabetrayal of confidence is libelous per se sonably susceptible, in the connection in (see Mosnat v. Snyder, 105 Iowa, 500, 75 N. which they are used, of any defamatory W. 356; McDuff v. Journal Co., 84 Mich. 1, meaning, it is the duty of the court to so 47 N. W. 671, 22 Am. St. Rep. 673; Car- instruct the jury as to give proper effect to penter v. Hammond, 1 N. Y. St. Rep. 551; that rule of law. As said by Mr. Newell, in Stewart v. Pierce, 93 Iowa, 136, 61 N. W. his work on Slander & Libel: 388; Manget v. O'Neill, 51 Mo. App. 35;
"A word at the end may alter the whole mean. Tryon v. Evening News, 39 Mich. 636; ing; so, if in one part appears something to Lauder v. Jones, 13 N. D. 525, 101 N. W. the plaintiff's discredit, in another, something 907), yet, if the words alleged to be slander- to his credit, the 'bane' and the 'antidote' should ous are capable of an innocent meaning as be taken together. The law does not dwell on well as a defamatory one, there should be in isolated passages, but judges of the publication plaintiff's petition an averment and innuendo as a whole.” showing that, not only had the defendant
See Guisti v. Tribune, 105 Tex. 507, 150 used the words in a defamatory sense, buts. W. 874, 152 S. W. 167. that the hearer or hearers understood the
(13) We are of the opinion that damages language as conveying the alleged defama would not be recoverable in this cause for tory meaning. In view of the peculiar state alleged loss of profit on business other than of the evidence disclosed by the two deposi- the particular shipment in question. Plaintions of Max May as to what Bigham did tits testified that it would be a difficult quesin fact state to him, and taking May's testi- tion to estimate the amount of profits that mony as a whole, we are of the opinion that he would have made during the nine days upon another trial, if the evidence be in the of the Dacia tie-up, but that he had in mind same condition with respect to this matter, certain business to which he would have the court would not be authorized to assume given his attention if his time had not been as a matter of law that, even though the occupied in the effort to secure a settlement jury should find that Bigham did make the of the controversy with reference to the statement that the issuance of the certificates Dacia shipment, and that this estimate of of insurance by Owens was unauthorized, the profits that he would have made was thereby said Bigham intended to charge that it would have been from $25,000 to $40,Owens with any offense or any act involving 000. The defendant reserved a bill of exmoral turpitude or to charge him with any ception to the introduction of this testimoact reflecting on his business integrity, or ny, as shown in the twenty-first assignment. which would be reasonably calculated to im- The jury rendered a verdict as to this item pair his business standing. It would seem in the sum of $10,000, the full amount althat May understood Bigham to state that leged by plaintiff in his pleadings. We are Owens, in issuing the certificates, had merely of the opinion that the objection should exceeded, under all the circumstances, the have been sustained. This loss or damage large discretion vested in him, rather than is not sought to be recovered on the ground to charge Owens with an abuse of authority that by reason of the circulation of the alto issue the certificates.
leged slander plaintiff was injured among For the reasons given, we are of the opin- bankers and cotton dealers, and that such ion that under the facts of this case the persons by reason thereof refused to deal instruction given by the court, of which com- with him or extend him credit or other acplaint is made under this assignment, was commodations, but that the loss arose out erroneous. As is said in the case of Knapp of the fact that his time was so fully occuv. Campbell, 14 Tex, Civ. App. 199, 36 S. W. I pied with attempting to straighten out the