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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 time, but by January 30, 1915, plaintiff prevailed upon said trust company to recognize his rights and finance such shipment and enable the same to leave Galveston.

4. It was alleged that said false and slanderous statements, made by the defendant's attorney Bigham, to Max May, aforesaid, were made with the full knowledge and notice of all the material facts and were authorized by the defendant company through its president. That such acts and conduct on the part of defendant were intended and calculated to interfere with the contractual relations then existing between the plaintiff and the trust company. That as the direct and proximate result, contemplated and expected by defendant at the time, from such willful and malicious wrongs, the plaintiff was damaged in the following respects and

amounts:

(a) The sailing of said shipment was delayed for nine days, and the plaintiff lost the interest on his investment for said time, to his damage in the sum of $2,000.

(b) That planitiff was caused and forced to incur great expense in the way of sending telegrams and telephones, and in the keeping of a man at Galveston to aid in removing all obstacles to the starting of the shipment, to plaintiff's damage in the sum of $1,500. (c) That plaintiff became liable for demurrage on account of the detention of said ship for the said nine days, amounting to

$9,000.

(d) That plaintiff's business as a cotton dealer was practically destroyed during said nine days, while the necessary expense of operation of his business during said time continued, for which plaintiff asked $10,000. (e) That plaintiff's credit and reputation in the business world, in the cotton trade, and among bankers engaged in financing cotton transactions, were greatly injured, and he was caused to experience great annoyance, humiliation, and mental suffering, for which he asked $100,000.

A. Wight & Co., an application for permission to ship on a given boat or to such unnamed port, and requested a rate for such shipment, etc. It was further alleged that during December, 1914, the war between Germany and her allies and Great Britain and her allies was in progress, and that the harbor of Bremen and the approaches thereto were mined and hedged about by warships of Great Britain and her allies, and that the steamship Dacia was a German steamship, owned and operated by German people under German registry at the outbreak of the war, and that the same was transferred after the beginning of the war to American registry; that it was a notorious fact, known to plaintiff, that it was the war policy of Great Britain and France to refuse to recognize any change of ownership and registry of boats from German registry to

neutral registry after the outbreak of the war, and it was further known to plaintiff and to all others that Great Britain, France, and Russia had announced the intention of capturing and confiscating such boats as those that changed their registry. Other defenses were specially pleaded; but, in view of the conclusion reached by us, we do not think it necessary to further mention them.

The cause was submitted to a jury under special issues, and a verdict was rendered for plaintiff in the aggregate sum of $102,964.12, upon which verdict the court rendered judgment. The items making up this judgment were as follows:

Interest, $1,148.42; expenses for telegrams and telephones, etc., $202.90; demurrage for the nine days, $1,620; loss of net profits during said period, $10,000; injury to credit, standing, and reputation, $50,000; mental suffering, $25,000; exemplary damages, $15,

000.

The record in this case is perhaps the most voluminous of any heretofore filed in this court. The transcript consists of 719 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.

Defendant answered by a general demurrer and special exceptions, a general denial, and further pleaded in substance as follows: That the statements alleged to have been made by defendant's agent to Max May were made to a person having a community of business interest with defendant and were made in good faith, and hence were

assignments of error and numerous pr positions under almost every one. Hence it will be readily recognized that the consideration of this appeal has called for the expenditure of much time and the examination of a multitude of authorities. It would be impracticable for us to attempt to discuss each assignment presented, and yet keep the opinion within proper limits. Nor do we

*

in ordinary cases, to write insurance, and we
are very glad to give it to him; but in this par-
ticular case I think he has written too much,
not only for the company, but for your sake.'
Mr. Bigham told me specifically that
while he did not claim the issuance of the in-
surance to be unauthorized, yet he considered
the amount written by Owens too large for us
to accept in any one company, or for his own
company to carry for Owens, or for anybody
else.
I do not believe that at the first
interview with me-and we had several—Mr.
subsequent interviews, I asked Mr. Bigham
Bigham said anything about reinsurance. At
whether he could not secure reinsurance with
other companies, and he told me then that he
had tried, but that his endeavors along in that
direction had not been successful, or not very
successful. Later on, of course, I learned that
some of the insurance had been placed in an-
other company or companies, but I have forgot-
ham told me about this, and he told me several
ten what proportion of it.
Mr. Big-
times; he did not tell me only once he did not
want me to understand that Owens exceeded
his authority, but merely that Owens committed
an act which was, perhaps, not strictly correct,
in writing such a large amount of insurance
without previously consulting the company with
regard to that.

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find it necessary so to do, and will as far as | Owens has a blank policy, and is authorized, possible group the assignments involving the same or kindred questions of law. For instance, the first seventeen assignments are directed to the action of the court in admitting over the objection of defendant testimony of plaintiff and third parties as to what Max May, of the Guaranty Trust Company, had told said witnesses about the statements claimed to have been made by Henry J. Bigham to said May, to the effect that the certificates of insurance on the Dacia in the amount named were unauthorized, and that the Providence-Washington Insurance Company did not have any reinsurance on said shipment. Under this group of assignments, it is shown that the testimony of plaintiff himself, and witness Parker, Robert Harrison, plaintiff's. attorney, and others, was admitted, said witnesses testifying as to statements made to them by Max May to the effect that Bigham, attorney for the defendant, had stated to May that the issuance of the certificates on the Dacia by plaintiff was unauthorized, and that the Providence-Washington Insurance Company had no reinsurance on the shipment of cotton. To all of this testimony the defendant objected, on the grounds that it was incompetent, prejudicial, hearsay, and that it was an effort to impeach the plaintiff's witness "I believe Mr. Bigham did tell me at one time Max May, etc. Two depositions of the wit- that he had tried to get reinsurance on this Daness 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 Mr. Bigham told me that the Guaranty Trust Company, about Janwhile 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 the amount therein provided, and, further, the witness did not state positively that Bigham in that conversation had stated to him that the plaintiff had not been able to secure any reinsurance on the shipment. From the following quotations from May's first deposition the character and purport of the testimony in the two respects indicated may be seen, to wit:

In the second deposition the witness stated:

amount.

** *

any amount he deemed wise to do so, never-
theless he thought Mr. Owens had exceeded his
authority in having so large an amount, thus
endangering the Providence-Washington,
well as the Guaranty Trust Company, in the
event of a loss, of the steamer.”

as

[1-4] The appellee justifies the admission of this testimony on the ground that through the introduction of the deposition of the witness 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 unthe 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, nevwhich he acknowledged, and which he statertheless, in writing it for the amount that heed to be true-that the defendants sought to had, without first consulting him, he considered show that the witness had fabricated his that he had gone beyond what he should have 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 testimony, of which complaint is made in this group of assignments. While appellant cites a number of authorities in support of the proposition that the testimony attacked was inadmissible for the purpose of impeachment, we do not deem it necessary to dis

cuss the rule of evidence discussed in those authorities, because appellee disavows any intention to impeach his own witness, and relies alone for the claimed admissibility of this character of testimony on the theory that it was admissible for the purpose of fortifying the testimony given in the second deposition, for the claimed reason that appellant had sought to impeach plaintiff's witness May and to show that his testimony in the second deposition was fabricated. As is stated in Insurance Co. v. Eastman, 95 Tex. 34, 37, 64 S. W. 863:

motive or influence existed. Insurance Co. v. Eastman, 95 Tex. 34 [64 S. W. 863]; Lewy v. Fischl, 65 Tex. 311. But it is no ground for the introduction of such declarations that other witnesses have merely contradicted the witness

sought to be sustained by testifying to a different state of facts. 1 Greenleaf on Evidence, 469; 3 Jones on Evidence, 871."

Nor would it be admissible to introduce

prior unsworn statements of the witness May to explain conflicts, in the testimony of said witness, between the testimony contained in the first and the second deposition. G., C. & S. F. Ry. Co. v. Sullivan, 190 S. W. 739. Plaintiff below offered both depositions, and therefore vouched for the credibility of the witness as to both depositions. In the second deposition, on cross-examination, the witness admitted that he made the answers 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 established: (1) That in the absence of evidence impeaching the credibility of a witness, such testimony is never admissible. Moody v. Gardner, 42 Tex. 414. (2) That whenever a witness is sought to be impeached by showing that he has made declarations inconsistent with the testimony given by him upon the trial and the tendency of such impeaching evidence is to show that the testimony of the witness is, by reason of some motive existing at the time of the trial or of some influence then operating upon him, fabricated, it is proper to admit evidence of his former declarations which corroborate his testimony, provided such declarations were made at a time when no such motive or influence existed."

[5-7] The fact that the testimony of the witness May was contradicted by the testimony of Bigham, the other party to the conversation in question, would not make this character of evidence admissible for the purpose intended or for the purpose of showing that in fact Bigham had made the statements to May as testified to by May in his second deposition. Mere conflict of evidence will not justify the admission of this character of testimony. Newton v. Alexander, 44 S. W. 416, writ denied. In this case the court says:

"The general rule is that evidence of what a

witness has said out of court cannot be receiv

admitting said evidence over the objections of the defendant. The plaintiff in open court elected to rely on his two allegations contained in his petition, to wit: (1) That Bigham had stated to May that the issuance of the certificates in the amounts stated was unauthorized; and (2) that defendant had no reinsurance on the shipment. There was a sharp conflict presented as to whether or not this statement had been made by Bigham, and to admit this character of testimony in an effort to fortify the version of what occurred between May and Bigham on the occasion of the conversation, and as testified to by May in his second deposition, was of a nature reasonably calculated to mislead the jury into believing that they could accept the testimony of Owens, Harrison, Parker, and others as to what May had told them as evidence that Bigham had in fact made the statements complained of to May. For this error the judgment must be reversed and the cause remanded.

[8, 9] Under its eighteenth assignment, appellant urges error in the court's failure to give its special charge peremptorily instructing the jury to find for the defendant, on the ground that there was no evidence of sufficient probative force to authorize the submission to the jury of the issue of defendant's representative making the alleged ed 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 is made to impeach the credibility of a witness by evidence imputing a design to misrepresent from some motive of interest, or that by reason of some influence operating upon him at the time his testimony is a fabrication, it is proper, in order to repel such imputation, to admit evidence of his former declarations which corroborate his testimony; provided such declarations were made at a time when no such

While we agree with appellant that the testimony, to the admission of which the first seventeen assignments are directed, was inadmissible for any purpose disclosed in the hearing, and most certainly was it inadmissible for the purpose of showing that the statement imputed to Bigham had in fact been made (T. & P. Ry. Co. v. Johnson, 90 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 ques-to 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 inGuaranty 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 complained of or caused the injury for which recovery is sought, or whether it was done in violation of the principal's orders, but whether it was done while he was engaged in his principal's business and within the apparent scope of his authority. Jackson v. Walls, 187 S. W. 676; Ry. Co. v. Neel, 26 S. W. 788, in which Story on Agency, § 452, and Mechem on Agency, § 734, are cited. In the last-cited case it is further said:

"The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, goes beyond the strict line of his duty or authority, and inflicts an injury on another. As to whether the acts complained of were within the scope of the agent's employment is a question of fact to be determined by the jury."

Hence we overrule the eighteenth assignment.

[10-12] Under special issue No. 17, the court submitted the question of injury to plaintiff's credit, standing, and reputation in the cotton trade and in the business world among bankers engaged in financing cotton transactions, as a proximate result of the act of Bigham in inducing the Guaranty Trust Company to delay the sailing of the Dacia, and in connection with the submission of this issue instructed the jury that

tempt, or ridicule, or cause him to be shunned and avoided. 25 Cyc. 253, and cases cited. In Zeliff v. Jennings, 61 Tex. 458, 466, the Supreme Court, speaking through Justice Stayton, says:

"There is some conflict of opinion as to the character of crime which must be imputed by words to make them actionable per se. We have not the time or disposition to review, in this opinion, the cases bearing on this question, but we believe that the great weight of authority establishes the proposition that: An accusation is actionable whenever an offense is charged which, if proved, would subject the accused person to a punishment, though not such as is known in the books, technically, as an ignominious punishment, if the accusation be such as to bring disgrace on the person of whom the words are spoken; words which impute to the person of whom they are spoken a character, a moral turpitude, which would exclude him from association with respectable persons. Character for moral turpitude bars the doors of society against its possessor, as completely as could a charge against one of having the most loathsome disease, which is held to be actionable per se; and it is difficult other should not be." to see, if the one be actionable per se, why the

In 25 Cyc. 249, it is said:

"General damages are those which the law presumes must actually, proximately, and necessarily result from the publication of the defamatory matter. The latter arise by inference of law and are not required to be proved by evidence and are allowable whenever the im

mediate 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

ing deemed actionable per se. All other defamation is actionable per quod, that is, special damages must be alleged and proven."

But it has been held that written or printed publication, which does not attack the veracity of the party against whom it is made, but merely charges a mistake in judgment, is not libelous per se, as such a charge does not effect the reputation of the party. See cases cited in 25 Cyc. p. 256, under subnote 42, including the case of Sanders v. Hall, 22 Tex. Civ. App. 282, 55 S. W. 594. While in some cases it has been held that the publication of a charge that a person has been guilty of a breach of trust or a betrayal of confidence is libelous per se (see Mosnat v. Snyder, 105 Iowa, 500, 75 N. W. 356; McDuff v. Journal Co., 84 Mich. 1, 47 N. W. 671, 22 Am. St. Rep. 673; Carpenter v. Hammond, 1 N. Y. St. Rep. 551; Stewart v. Pierce, 93 Iowa, 136, 61 N. W. 388; Manget v. O'Neill, 51 Mo. App. 35; Tryon v. Evening News, 39 Mich. 636; Lauder v. Jones, 13 N. D. 525, 101 N. W. 907), yet, if the words alleged to be slanderous are capable of an innocent meaning as well as a defamatory one, there should be in plaintiff's petition an averment and innuendo showing that, not only had the defendant used the words in a defamatory sense, but that the hearer or hearers understood the language as conveying the alleged defamatory meaning. In view of the peculiar state of the evidence disclosed by the two depositions of Max May as to what Bigham did in fact state to him, and taking May's testimony as a whole, we are of the opinion that upon another trial, if the evidence be in the same condition with respect to this matter, the court would not be authorized to assume as a matter of law that, even though the jury should find that Bigham did make the statement that the issuance of the certificates of insurance by Owens was unauthorized, thereby said Bigham intended to charge Owens with any offense or any act involving moral turpitude or to charge him with any act reflecting on his business integrity, or which would be reasonably calculated to impair his business standing. It would seem that May understood Bigham to state that Owens, in issuing the certificates, had merely exceeded, under all the circumstances, the large discretion vested in him, rather than to charge Owens with an abuse of authority to issue the certificates.

For the reasons given, we are of the opinion that under the facts of this case the instruction given by the court, of which complaint is made under this assignment, was erroneous. As is said in the case of Knapp v. Campbell, 14 Tex. Civ. App. 199, 36 S. W.

"But to sustain an action for libel the plaintiff must either show special damage, or 'the court can legally presume he has been degraded nature of the charge must be such that the in the estimation of his acquaintances or of the public, or has suffered some other loss, either in his property, character, or business, or in his domestic or social relations, in quence of the publication.""

conse

See Odgers, S. & L. p. 18; Cooley, Torts, p. 240 (206); Zeliff v. Jennings, 61 Tex. 458; Publishing Co. v. Jones, 83 Tex. 302, 18 S. W. 652; Hirshfield v. Bank, 83 Tex. 457, 18 S. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. 660; Belo v. Fuller, 84 Tex. 450, 19 S. W. 616, 31 Am. St. Rep. 75; Belo v. Wren, 63 Tex. 686. If the words used are not reasonably susceptible, in the connection in which they are used, of any defamatory meaning, it is the duty of the court to so instruct the jury as to give proper effect to that rule of law. As said by Mr. Newell, in his work on Slander & Libel:

"A word at the end may alter the whole meaning; so, if in one part appears something to the plaintiff's discredit, in another, something to his credit, the 'bane' and the 'antidote' should be taken together. The law does not dwell on isolated passages, but judges of the publication as a whole."

See Guisti v. Tribune, 105 Tex. 507, 150 S. W. 874, 152 S. W. 167.

[13] We are of the opinion that damages would not be recoverable in this cause for alleged loss of profit on business other than the particular shipment in question. Plaintiff testified that it would be a difficult question to estimate the amount of profits that he would have made during the nine days of the Dacia tie-up, but that he had in mind certain business to which he would have given his attention if his time had not been occupied in the effort to secure a settlement of the controversy with reference to the Dacia shipment, and that this estimate of the profits that he would have made was that it would have been from $25,000 to $40,000. The defendant reserved a bill of exception to the introduction of this testimony, as shown in the twenty-first assignment. The jury rendered a verdict as to this item in the sum of $10,000, the full amount alleged by plaintiff in his pleadings. We are of the opinion that the objection should have been sustained. This loss or damage is not sought to be recovered on the ground that by reason of the circulation of the alleged slander plaintiff was injured among bankers and cotton dealers, and that such persons by reason thereof refused to deal with him or extend him credit or other accommodations, but that the loss arose out of the fact that his time was so fully occupied with attempting to straighten out the

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