Gartman v. Hedgpeth

157 S.W.2d 139
CourtTexas Commission of Appeals
DecidedDecember 10, 1941
DocketNo. 2376—7718
StatusPublished

This text of 157 S.W.2d 139 (Gartman v. Hedgpeth) is published on Counsel Stack Legal Research, covering Texas Commission of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gartman v. Hedgpeth, 157 S.W.2d 139 (Tex. Super. Ct. 1941).

Opinion

BREWSTER, Commissioner.

This is a suit for libel brought by defendant in error against plaintiffs in error growing out of the publication of the following notice:

“Notice to the Public
This is to notify the public that Tom Hedgpeth is no longer connected with J. Garvey Home Appliance Store. Pay all money due on merchandise purchased from this Company to L. J. Gartman or J. Garvey.
“J. Garvey Home Appliance Store.”

The trial court sustained a general demurrer to Hedgpeth’s petition and dismissed his suit upon his refusal to amend. The Court of Civil Appeals reversed and remanded the cause. See 136 S.W.2d 641.

Obviously, the language of the aforesaid notice is not libelous per se; that is, standing alone it is not libel as defined by Article 5430, R.C.S. (1925). Hedgpeth recognized this fact and sought to show by innuendo averments that the [141]*141notice fell within the terms of the statute. Whether he succeeded is the question now before us.

After alleging that defendants published the notice, the plaintiff averred that the •defendants thereby meant and intended to mean that he, Hedgpeth, had been discharged from employment; that he was untrustworthy and dishonest, and would be guilty of swindling, in collecting money without authority, if numerous debtors were not warned against him; that thereby the public were warned that if they paid any money due them to plaintiff and it was not accounted for by him that their debts would not be discharged thereby; that plaintiff would seek to collect defendants’ money in the absence of authority to do so, if it were tendered him; that defendants were discharging a duty to those owing them in giving a public notice so that the public would not be imposed upon and swindled or defendants defrauded of their money and the fact that plaintiff was no longer connected with defendants was because of previous embezzlement or some related offense.

In determining whether the innuendo averments stated a cause of action for libel it may be assumed that an employer has a right to notify his patrons that he has dispensed with the services of a named employee and state his reasons, if true (Ratzel v. New York News Pub. Co., 67 App.Div. 598, 73 N.Y.S. 849), for the reason that he has the right to publish all that he has reasonable and probable cause to believe necessary to protect his property from loss or injury (Townsend, Libel & Slander, 4th Ed., Sec. 240, p. 388). Manifestly, such publication must not violate our statute defining libel as it would, in such event, be unreasonable and without probable cause.

It must be assumed also that in weighing a general demurrer the allegations in the petition will be taken as true. However, as to a libel petition, “if the publication is not actionable per se it is the duty of the court to determine whether the words used are capable of the meaning ascribed by the innuendo; and if in their natural meaning they are incapable of such interpretation, the court should withhold the case from the jury by sustaining a general demurrer.” 27 Tex.Jur., Sec. 16, p. 615. See, also, 37 C.J. 52.

If the language actually used by the defendants in the above-quoted notice admits of no ambiguity, the innuendo averments were of no avail and the trial court properly sustained the general demurrer. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 152 S.W. 167. If it presents ambiguity, it is tested by what effect the language would have upon the mind of the ordinary reader and it would be for the jury to determine whether to such ordinary mind it suggested what plaintiff, in his innuendo aver-ments, claims it suggested, and the trial court would be in error in sustaining the general demurrer. Belo & Co. v. Smith, 91 Tex. 221, 42 S.W. 850.

Counsel cite us no Texas case on all fours with that at bar and we have found none. However, we believe Mulligan v. Cole et al., L.R. 10 Q.B. 549, an English case, is such a case. There the newspaper notice, over the signatures of the defendants, was as follows: “Walsall Science and Art Institute. The public are respectfully informed that Mr. Mulligan’s (meaning plaintiff’s) connection with the institute has ceased and that he is not authorized to receive subscriptions on its behalf.”

Plaintiff alleged that it was meant thereby that he had falsely assumed and pretended to be authorized to receive subscriptions on behalf of said institute. The trial court held that the advertisement did not bear the meaning imputed to it by the innuendo. This view was sustained by the Court of Queen’s Bench. “Reading the words in their ordinary sense, they amount to no more than information to the public that the plaintiff, Mr. Mulligan, who had been connected with the institute, no longer had any connection with it, and was therefore not authorized to receive subscriptions for it, and that subscriptions paid to him would not be for it. I cannot help thinking that to an ordinary person it would convey no more than the legitimate information, and that no such defamatory meaning as that imputed by the innuendo, nor any other defamatory meaning, was intended to be expressed.”

In Quinn v. Prudential Ins. Co., 116 Iowa 522, 90 N.W. 349, 350, the Supreme Court of Iowa was dealing with facts parallel to those before us. There the notice published by the defendant read: “ T herewith inform the public that Pat Quinn, Jr.’ (meaning plaintiff), ‘formerly an agent for me, is no longer employed in any capacity by the Prudential Insurance Co. Nor has he been for the past year. Our policy holders are [142]*142hereby notified not to pay him any premiums’ * * * “but to pay to my authorized agents, or at my office.’ ”

The plaintiff alleged that the publication meant that he had been collecting premiums from the policyholders of defendant after his employment, and made other allegations of injury. In holding that a jury verdict for the plaintiff had not sufficient support in the evidence, the court said: “Even if it should be conceded (as it cannot) that, in notifying defendant’s policy holders not to pay premiums to the plaintiff, there was an implied statement that he had been collecting such premiums since he ceased to be in defendant’s employment, such statement would not be libelous, in the absence of a charge that in doing so he acted corruptly or dishonestly.”

Then the court points out that the record merely showed that plaintiff had been employed as defendant’s agent at Dubuque, which position he had resigned some months before the notice was published without any showing that there was connected therewith any ill feeling between the parties; that there was no evidence that plaintiff had assumed to collect any premiums alter the agency terminated or that defendant intended to be so understood in publishing the notice.

Another case in point is Boynton v. Remington et al., decided by the Supreme Court of Massachusetts and reported in 3 Allen at page 397. There the petition alleged that plaintiff was a coal dealer in Lowell and kept and advertised for sale the genuine, original Franklin coal, which had been shipped by the defendants who, well knowing the premises, published of and concerning him the following advertisement: “Caution. The subscribers, the only shippers of the true and original Franklin coal, notice that other coal-dealers in Lowell than our agent, Mr. W. E. Livingston, advertise Franklin coal.

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Related

A. H. Belo & Co. v. Smith
42 S.W. 850 (Texas Supreme Court, 1897)
Hedgpeth v. Gartman
136 S.W.2d 641 (Court of Appeals of Texas, 1939)
Missouri Pacific Railway Co. v. Richmond
11 S.W. 555 (Texas Supreme Court, 1889)
Guisti v. Galveston Tribune
150 S.W. 874 (Texas Supreme Court, 1912)
Guisti v. Galveston Tribune
152 S.W. 167 (Texas Supreme Court, 1912)
Southern Pub. Co. v. Foster
53 S.W.2d 1014 (Texas Commission of Appeals, 1932)
Ertheiler v. Bernheim
37 A.D. 472 (Appellate Division of the Supreme Court of New York, 1899)
Ratzel v. New York News Publishing Co.
67 A.D. 598 (Appellate Division of the Supreme Court of New York, 1902)
Pittsburgh, Allegheny & Manchester Passenger Railway Co. v. McCurdy
8 A. 230 (Supreme Court of Pennsylvania, 1887)
Quinn v. Prudential Insurance Co. of America
90 N.W. 349 (Supreme Court of Iowa, 1902)
Ratzel v. New York News Publishing Co.
73 N.Y.S. 849 (Appellate Division of the Supreme Court of New York, 1902)

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Bluebook (online)
157 S.W.2d 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gartman-v-hedgpeth-texcommnapp-1941.