Marshall Field Stores, Inc. v. Gardiner

859 S.W.2d 391, 1993 Tex. App. LEXIS 2130, 1993 WL 73411
CourtCourt of Appeals of Texas
DecidedJuly 29, 1993
Docket01-90-00304-CV
StatusPublished
Cited by101 cases

This text of 859 S.W.2d 391 (Marshall Field Stores, Inc. v. Gardiner) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 1993 Tex. App. LEXIS 2130, 1993 WL 73411 (Tex. Ct. App. 1993).

Opinions

OPINION

WILSON, Justice.

In April 1986, Marshall Field Stores, Inc., acting through employees Bonnie Beirne and Susan Varga, terminated Gary Gard-iner from his sales job with one of its Houston stores. The dismissal resulted from Gardiner’s failure to account for a missing $100 bill to management’s satisfaction, and in Gardiner’s view, the “firing” branded him as a thief. According to Gardiner’s testimony, his several attempts at communication with Marshall Field after his discharge, made in an effort to vindicate himself, were rebuffed and ignored. Ultimately, Gardiner filed this lawsuit.

In the trial court, Gardiner (the appellee), sued Beirne, Varga, and Marshall Field, (the appellants), asserting a claim for damages proximately caused by the nonprivi-leged communication of defamatory statements about Gardiner regarding the incident. The jury found that Beirne and Var-ga, in the course and scope of their employment, made malicious publications of unspecified defamatory statements regarding Gardiner to another unnamed employee, or employees, of Marshall Field. After finding Marshall Field ratified the malicious publications, the jury determined actual and exemplary damages in a total amount exceeding one million dollars.

We reject the appellants’ argument that the appellee’s claims are barred by limitations, but after consideration of the appellants’ points of error relative to the sufficiency of the evidence, we reverse the judgment of the trial court and render judgment that the appellee take nothing.

Gardiner was working as a salesperson in the men’s department on April 17, 1986, when a security surveillance camera videotaped someone identified by the appellants as Gardiner at a register outside the area of his immediate responsibility. The video, as interpreted by the appellants, showed Gardiner ring up a “no sale,” remove, and then replace bills in the “large bills” drawer ($100’s, $20’s and checks). The video also showed the person depicted leaving the area with a $100 bill in his hand. The same register came up “short” $100 when receipts were balanced with sales that evening.

The cash register journal tape taken from the register on the day in question indicated it had been opened at one point for a “no sale” transaction. Each employee using the machine entered a unique number as part of the procedure for opening the register. The employee number [394]*394entered was printed on the tape by each specific transaction. The employee number on the tape for the transaction in question was acknowledged by Gardiner to be his.

On Friday, April 25, 1986, Marshall Field’s security manager, Susan Varga, approached Gardiner on the sales floor and requested he accompany her to her office. Varga, who had conducted an investigation into the missing $100, then interviewed Gardiner in private about the incident. Gardiner told her he did not remember the specific transaction, which had taken place several days earlier, but he did not take any money. He then requested a polygraph test. The polygraph test was administered the same day, and the examiner gave an immediate report of failure. However, the final written report introduced at trial stated Gardiner had failed to clear the test, meaning the examiner could not determine the truthfulness of his responses.

After the polygraph test, Varga showed Gardiner the segment of the surveillance tape depicting the suspect transaction. Gardiner then made a written statement that he did not recall the transaction shown to him, but by viewing the tape, he was able to reconstruct what had likely happened. He stated he left his usual register with a $100 bill in his hand, because he could not make change, and was looking in the register displayed on the video for change. Gardiner did not acknowledge he was the person filmed at the register, and again vigorously reiterated he did not take $100 from Marshall Field for his own use.

Following the interview, Varga instructed Gardiner to go home. The next day, Beirne called Gardiner and told him he was suspended pending a final decision. A few days later, on April 29, 1986, Gardiner was fired.

Gardiner’s original petition, filed on March 27, 1987, alleged Marshall Field employees published defamatory statements to the Texas Employment Commission, the Retail Merchant’s Association, and other employees of Marshall Field. Gardiner’s first amended original petition, filed October 10, 1988, alleged that a Marshall Field employee made slanderous statements to a third party, and that Marshall Field compelled Gardiner to self-publish the statements to prospective employers. His second amended original petition, filed September 18, 1989, alleged publication of false statements to employees of Marshall Field and to a Marshall Field’s lessee. He also reasserted his claim that he was compelled to self-publish to prospective employers. In Gardiner’s answer to Marshall Field’s special exceptions, he specified Marshall Field’s lessee was Leroy Bauer, and the prospective employer referred to was Joan Buchanon.

In points of error one and two, the appellants contend the trial court erred in entering judgment in favor of Gardiner and in denying their motion for judgment notwithstanding the verdict, because Gard-iner’s claims were time barred. The appellants argue the defamatory publications alleged in both the first amended original petition and the second amended original petition were time barred as a matter of law, and therefore, there was no issue that could go to the jury.

The record shows certain Marshall Field employees first became aware of an investigation of Gardiner on April 25, 1986, the same day Gardiner was first confronted about what the appellants claimed the videotape revealed. The statute of limitations for slander is one year. Tex.Civ. PRAC. & Rem.Code Ann. § 16.002 (Vernon 1986). The period of limitations begins to run from the date the cause of action accrues. Id. A cause of action for slander accrues when the injured party learned of, or in exercise of reasonable diligence should have learned of, the defamatory communication. Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976); Johnson v. Abbey, 737 S.W.2d 68, 69-70 (Tex.App.-Houston [14th Dist.] 1987, no writ). Each distinct publication of slander inflicts an independent injury from which a slander cause of action may arise. Fisher v. Beach, 671 S.W.2d 63, 67 (Tex.App.—Dallas 1984, no writ).

The appellants concede Gardiner’s original petition was filed within the statute of limitations. However, Gardiner’s first and [395]*395second amended petitions were filed outside the statute of limitations. The appellants argue the first and second amended petitions superseded and supplanted the original petition, and were filed after the statute of limitations had run. The appellants assert the causes of action alleged in the subsequent pleadings were time barred.

Gardiner argues that under the Tex. Civ. PRAC. & Rem.Code Ann. § 16.068 (Vernon 1986), his amended pleadings relate back to his original petition, and therefore the statute of limitations cannot be raised with respect to the causes of action alleged in the amended pleadings.

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Bluebook (online)
859 S.W.2d 391, 1993 Tex. App. LEXIS 2130, 1993 WL 73411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-field-stores-inc-v-gardiner-texapp-1993.