author: McMEANS, J.

text:
    E. ALKEMEYER CO. v. McCARDELL.

    (No. 7013.)
    (Court of Civil Appeals of Texas. Galveston.
    Jan. 8, 1916.
    Rehearing Denied Jan. 27, 1916.)
    1. Witnesses <@=392 — Impeachment.
    In a suit for compensation agreed to be paid plaintiff, the admission in evidence of the only part of a letter written by defendant’s bookkeeper to its president which was contradictory of her testimony was proper.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. <@=
    2. Evidence <@=99 — Competency.
    The exclusion from evidence of parts of a letter from defendant's bookkeeper to its president relating to matters wholly foreign to the issues, and not contradictory of the bookkeeper’s testimony, was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 123, 137-143; Dec. Dig. <@=99.]
    3. Appeal and Error <@=1048 — Examination.
    Where the only portion of a letter from defendant’s bookkeeper to its president that would tend to serve the purpose of contradicting the bookkeeper’s testimony, for which it was offered, was admitted, the fact that the court permitted plaintiff’s counsel to interrogate the bookkeeper as to the letter before admission of the part finally admitted was not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4140-4145, 4151, 4158-4160; Dec. Dig. <@=1048.]
    4. Trial <@=133 — Remarks op Counsel.
    Where tho improper remarks of plaintiff’s counsel, when defendant objected to his offer of proof of the contents of defendant’s books by the bookkeeper’s memoranda, as to the length of time it would take to secure original evidence, contended by defendant to suggest that the defense was prolonging' the trial, were withdrawn, and the jury instructed not to be influenced by them, there was no error.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. <@=>133.]
    5. Appeal and Error <@=1051 — Harmless Error — Evidence.
    In a suit for compensation by a store’s department manager, the admission in evidence of defendant’s bookkeeper’s memoranda showing the net profits of the department, if erroneous, was harmless, where defendant later admitted their correctness.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Doc. Dig. <S= 1051.)
    6. Master and Servant <@=>80 — Compensation — Evidence.
    In a suit for compensation by a store’s department manager, plaintiff’s testimony that while he was engaged with defendant it was worth from $125,000 to $175,000 was admissible, where defendant claimed that plaintiff had delayed making any demand for an accounting, while plaintiff testified that he did not make demand sooner because he thought defendant was good.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 107 — 127; Dec. Dig. <§=> 80.]
    7. Appeal and Error <@=>1053 — Harmless Error — Evidence.
    In a suit for compensation by a store’s department manager, plaintiff’s inadmissible testimony that while he was engaged with defendant it was worth from $125,000 to $175,000 was rendered harmless by its withdrawal and the court’s instructing the jury not to consider it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4178⅛184; Dec. Dig. <§=> 1053.]
    8. Appeal and Error <§=>1050 — Harmless Error — Evidence.
    In a suit for compensation hy a store’s department manager, the erroneous admission of proof that the par value of defendant’s stock was $25 per share, and that plaintiff paid $300 per share for certain shares purchased hy him, was rendered harmless, when the same proof was subsequently adduced by the defendant and the production of the corporate records.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 106S, 1069, 4153-4157, 4166; Dec. Dig. <fc=»1050.]
    9. Appeal and Error <§=>1060 — Conduct of Counsel — Examination of Witness.
    A question from plaintiff’s attorney to 'a witness which was not of a character to reasonably create in the jury any prejudice against defendant, or to cause the rendition of an improper judgment, was not ground for reversal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <®=»1060.]
    Appeal from District Court, Harris County ; J. W. Woods, Special Judge.
    Suit by J. H. McCardell against the E. Al-kemeyer Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Dannenbaum & Taub, of Houston, for appellant. Presley K. Ewing and John Dove-joy, both of Houston, for appellee.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

On June 26, 1913, James H. McCardell brought this suit against the E. Alkemeyer Company, a corporation, under a contract between them, bearing date July 28, 1908, for one-fourth of the net profits of the ready to wear department of defendant’s mercantile business for its fiscal years ending June 30,1911, and June 30, 1912, alleging the amounts to be due him under such con-■traet as manager of such department for the first year $2,364.68, and for the second year $1,755.49, aggregating $4,120.17. The substance of the contract is set out 'in the plaintiff’s.petition, and a copy of the contract was attached to the petition as an exhibit, and therefrom we state the substance of only such portions thereof as we conceive to be material to the issues involved on this appeal.

By the terms of the contract the defendant agreed to establish on the third floor and section of the sixth floor in the building occupied by it a special department of its mercantile business for the sale of “ready to wear goods, corsets, underwear, etc.,” and to employ plaintiff and place him in full charge thereof as manager. The defendant further agreed to furnish and supply said department the stock of such goods then in its store and all such further similar stock as might from time to time be required in said business for its successful operation and to obtain the best possible results, not exceeding in the aggregate $25,000 at any one time; all of said goods to be supplied on the order of plaintiff as manager and approved by the president of the corporation under rules and regulations of defendant then existing and such further rules and regulations as might thereafter be adopted by the directors of the corporation. It was further stipulated that a proper and suitable set of books should be kept in said department by its said manager, which at all times should reflect the business done by the department, corresponding with the regular system of bookkeeping of the corporation in its general business. It was further provided that said department should pay its proper proportion of the rents for the building occupied by the defendant, as well as its pro .rata of the general expenses of the whole business, to pay its own freight, express, and drayage charges, furnish its own wrapping paper, pay its pro rata per package of the delivery department and its pro rata of premiums for fire insurance, and, in the event of loss by fire, to stand its pro rata of such losses.

The plaintiff upon his part agreed as follows:

“The party of the second part [plaintiff] hereby agrees for one year continuously from this date [July 28, 1908] to devote his undivided time and attention, his faithful services, and earnest, best efforts to the management, successful operation, and upbuilding of said department.”

It was further stipulated, in substance, that during the year of the contract plaintiff should be paid a salary of $25 per week, and in addition thereto should receive one-fourth of the net profits of the business of the department under his management.

Plaintiff alleged that, while said contract is expressed for one year, the fact is that after the year had expired the parties thereto continued to do business thereunder in the same way, recognized the contract as still in life, and that each party so conducted himself with respect thereto with the other party as reasonably to justify the other party in believing, and acting on the belief, as the plaintiff did, that they mutually intended it to remain in force upon the same terms, and to continue in force upon such terms during the entire period for which an accounting is sought. The plaintiff’s petition further alleged:

That “plaintiff and defendant from the date of said contract between them to the close of the fiscal year of defendant’s business, to wit, the 30th day of June, 1912, and thereafter, conducted the department covered by said contract, according to the terms thereof, plaintiff fully and faithfully performing his part of such contract, acting as manager of said business, and continuously during such period devoting his undivided time and attention and his faithful services and earnest, best efforts to the management, successful operation, and upbuilding of such department, except only that, by mutual consent of plaintiff and defendant, his services to it were enlarged, lie being made manager of the defendant’s sales department, to wit, on May 24, 1910, in view of which his weekly salary was increased to $40 per week instead of $25 per week, as originally _ stipulated under aforesaid contract between them.
“That defendant recognized the aforesaid contract between it and plaintiff as still in force, to wit, on December 23, 1910, when it adjusted with plaintiff his profits of one-fourth under said contract for the two fiscal years ending June 30, 1910, on the basis of one-fourth of the entire net profits in addition to total weekly salary, which was deducted as an item of general expense of such department, which one-fourth profits so accruing to plaintiff were then and there fixed and settled at $2,400 which plaintiff then invested in stock of the defendant.”

Defendant’s answer, after denying aver-ments inconsistent with its position, alleged that on or about May 24, 1910, plaintiff and defendant agreed to cancel and rescind the alleged contract, and to substitute for it a new and different agreement, and that it was thereby agreed and understood between them that plaintiff should cease to act as manager of said ready to wear department, and should act as sales manager of all the departments of the store, and receive therefor the sum of $40 per week, and that, as such sales manager, plaintiff had assumed new and different duties which were inconsistent with his former duties under the original contract, and that on December 23,1910, he was made manager, and on or about December 27, 1911, general manager, and that his duties as such were also different and inconsistent with his former duties under the original agreement, and that his salary was again increased on December 27, 1911, to $45 per week; that it was an essential and material part of plaintiff’s original employment that he should devote his undivided time and attention, his faithful services, and earnest, best efforts to the management, successful operation, and upbuilding of said ready to wear department, and should have a fourth interest in the net profits accruing from the business done in his department under his management; that after plaintiff became sales manager he could not perform effectually and did not perform the duties of manager of said ready to wear department as contemplated by the parties under the original contract; and that defendant employed others to manage such ready to wear department with’ the knowledge and consent and under the supervision of plaintiff as sales manager and general manager.

The plaintiff by supplemental petition reiterated the averments of his original petition, admitted that the provisiqns of the contract requiring plaintiff to devote his undivided time and attention, etc., to the department was a material and essential part of his employment, and was so regarded by plaintiff and defendant, and denied the allegations of the answer, except as admitted, and specially denied that he and defendant agreed at any time to cancel and rescind the alleged contract, or to substitute it by any new or different agreement, or that, as sales manager, manager, or general manager, he assumed duties inconsistent with his former duties under the alleged original agreement, or that he could not thereafter perform effectually, or that he failed to perform the duties of manager of the ready to wear department, as contemplated by the parties under the original contract of employment, or that the defendant thereafter employed others to manage such department; and, in addition, he alleged that under mutual agreement the increased salaries were for the discharge by him of new duties involving additional services, which were to be performed by him concurrently with the services he was to perform under the original agreement, as far as might be, and that otherwise, and only as thus modified, the original agreement should remain in full force and virtue, as it'in fact did, so that, as far as performance of the services might be inconsistent or conflict, if at all, with those to be performed under the original agreement, the latter should be, as they in fact were, waived as a part of the consideration of the agreement as modified.

.The defendant by supplemental answer reiterated the averments of its original answer, and denied the new averments in the plaintiff’s supplemental petition.

The case was tried before a jury, and upon request duly made was submitted to them for a special verdict, by which they found:

(1) That the course of dealings accepted and acted upon by the parties to the contract of July 28, 1908, in their business relations together, in connection with the attending circumstances, was such as reasonably to justify plaintiff, as a man of ordinary prudence, in believing, and acting on the belief, that said contract was mutually intended to remain and continue in force for the years beginning July 1, 1910, and extending to July 1, 1912.

(2) That plaintiff was induced by such course of dealings and attendant circumstances to believe and act on the belief that said contract of July 28, 1908, was mutually intended to remain and was continued in force for the years beginning July 1, 1910, and extending to July 1, 1912.

(3) That the plaintiff, after he became sales manager, and while he was acting as sales manager and general manager, and during the years beginning July 1, 1910, and extending to July 1, 1912, acted as manager of the ready to wear department in question under the said contract of July 28, 1908, and effectually and substantially performed the duties of such manager under such contract.

(3a) That the plaintiff, after his appointment as sales manager, and until June 30, 1912, devoted his undivided time and attention to the management, successful operation, and upbuilding of the special department of defendant’s business known as the ladies’ ready to wear department in the third floor, except as devoted to his new duties as sales manager and general manager.

(3b) That the plaintiff and defendant by their course of dealing accepted and acted on between them, taken in connection with the attending circumstances, mutually agreed that tlie contract sued upon by plaintiff in this cause of July 28, 1908, should remain and continue in force upon substantially the same terms after the appointment of plaintiff as sales manager of defendant’s business and until June 30, 1912.

(4) That plaintiff’s new duties, as sales or general manager, so far as they divided time with his duties as manager of said ready to wear department, were performed with the mutual consent of the parties, and without any agreement between them that such should supersede the said contract of July 28, 1908.

(5) That the defendant, before the commencement of this suit, refused a request from plaintiff, and has since failed to pay or account to him for any of the amounts claimed by him against the defendant herein.

(6) That after charging the ready to wear department in question with all the expenses specified to be borne by it under the contract in evidence of July 28, 1908, and after deducting all said expenses and due pro rata of the general expenses, losses, etc., as mentioned in such contract, a fourth of the amount of net profits from such ready to wear department (a) for the fiscal year of the business beginning on July 1, 1910, and extending to July 1, 1911, was the sum of $2,-016.53, and (b) for the fiscal year of the business beginning July 1, 1911, and extending to July 1, 1912, was the sum of $1,405.49.

(7) That plaintiff and defendant did not agree that the contract sued upon herein of July 28, 190S, be canceled after the close of the fiscal year of defendant’s business, ending July 30, 1910.

(7a) That plaintiff and defendant, on or about May 24, 1910, did not agree that plaintiff should cease to act as manager of the ready to wear department of the third floor in question.

(8) That plaintiff’s duties as sales manager and general manager of defendant’s business were not inconsistent with the substantial performance by him of the duties of manager of the special ready to wear department in question.

(9) That the course of dealing acted upon by the parties to the contract of July 28, 1908, in their business relations together, in connection with the attending circumstances, were not such as reasonably to justify E. Alkemeyer, acting for the defendant, as a man of ordinary prudence, in believing, and acting on the belief, that said contract was terminated on July 1, 1910.

These findings are not complained of by appellant by any assignments of error in its brief.

Appellant’s first assignment of error, which is submitted as a proposition, is as follows:

“The court erred, to the prejudice of defendant, in submitting this cause to the jury and in entering judgment herein on the verdict of the jury, for the. reason that plaintiff, as witness for himself, testified that nothing had boon said by either party to the contract sued upon herein at the time plaintiff was appointed sales manager of defendant’s business, nor thereafter, and that nothing was said by either party as to whether or not plaintiff was to continue as manager of the_ ready to wear department of defendant’s business after his appointment as sales manager ; that the contract sued upon herein provides that plaintiff agrees ‘to devote his undivided time and attention, his faithful services and earnest, best efforts to the management, successful operation, and upbuilding of said department,’ and agrees further that the intention of the parties as to compensation, etc., of and for plaintiff is that he shall receive one-fourth interest in the net profits arising and accruing from the business done in his department and under his management. Defendant, in his first amended original answer, pleaded that said provisions of said contract were material and essential parts of plaintiff’s original employment, and that they were so regarded by plaintiff and defendant. In subdivision 2, paragraph numbered 6, of plaintiff’s first supplemental petition plaintiff admitted that such provisions of said contract were a material and essential part of plaintiff’s original employment, and were so regarded by plaintiff and defendant; that the great preponderance of the testimony adduced in this cause shows that after the appointment of plaintiff as sales manager he could not substantially perform the duties of manager of the ready to wear department of defendant’s business in accordance with the provisions and requirements of said contract.”

Upon the issues as made by the pleadings and submitted by the court to the jury for special findings the evidence was conflicting, and the conflict was settled in plaintiff’s favor by the verdict of the jury. To set out the evidence, which, in the opinion of this court, warranted the jury in making their answers, would extend this opinion to an unreasonable length, and we therefore content ourselves with the statement that we find as a fact from the evidence in the record that every material fact found by the jury was warranted by the evidence. Nowlin v. Hall, 97 Tex. 441, 79 S. W. 806. It follows, therefore, that it is our opinion that the court did not err in submitting the case to the jury and entering judgment for plaintiff upon their answers, as complained in the first assignment of error, and the assignment and the several propositions thereunder are overruled.

The second, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth assignments of error complain in various forms of the action of the court in sustaining the objection of plaintiff to the introduction in evidence by the defendant of the following letter written by plaintiff’s witness Lizzie Sauer to E. Alkemeyer, president of defendant corporation, viz.:

“I did not intend writing you this, but to tell you when you came down, but Mrs. MeOar-dell made a remark that Mr. Harry was so very friendly to her lately, trying to engage her into conversation, and seemed to want to be very confidential. She said that she certainly wouldn’t put her confidence in him, only in you. I thought possibly he was trying to poison her mind. _ Saturday night Mr. Harry asked me to give him his contract that he had with the firm when he had charge of the third floor; after I gave it he kept it. I can’t imagine for what purpose. I am inclosing the copy; thought you might want to keep it.
“Mr. Alkemeyer, this that I have written you may not amount to anything, as Mr. Harry is working hard to get things in shape for business, but I thought I had better tell you, as he might possibly be in with Mrs. Oarson. When I told him that Mrs. Oarson would not do as she had promised, that is, sell her stock, he said that he did not blame her, as he would do the same.
“This may all be gossip and not amount to anything, but I would rather tell you in case anything should happen I feel I have done my duty to you.
“Respectfully, [Signed] 'Lizzie.”

The court sustained plaintiff’s objection to the admission in evidence of the letter as a whole, but did admit in evidence that portion thereof which reads as follows:

“Saturday night Mr. Harry [meaning the plaintiff] asked me to give him his contract that he had with the firm when he had charge of the third floor; after I gave it he kept it. I can’t imagine for what purpose. I am inclosing the copy; thought you might want 'to see it.”

This witness had testified that this letter, which bore no date, was written by her in the spring of 1912, and that plaintiff had charge of the third floor ready to wear department as manager at such time, and that she knew that the contract hereinbefore referred to was in force at that time. The letter was offeree], to contradict the witness on these points.

After a careful consideration of the assignments in connection with the entire evidence in the record, we have reached the conclusion that none of them can be sustained. The court admitted the only portion of the letter that was contradictory of the testimony given by Miss Sauer at the trial, and the other portions, so far as we are able to discern, relate to matters wholly foreign to any issues in the case, and are in no wise contradictory of her testimony. The fact that the court permitted the plaintiff’s counsel to interrogate the witness in regard to the letter before the portion set out was admitted cannot afford ground for reversal in view of the fact that the only portion of it that would tend to serve the purpose for which it was offered was admitted.

Plaintiff sought to introduce, and later was permitted by the court to introduce, in evidence memoranda prepared by the witness Miss Sauer showing from the books of the defendant the one-fourth interest of the plaintiff in the net profits of the ready to wear department for the two years for which an accounting was sought. The proffer of the memoranda was met by the objection from defendant that it was secondary evidence, and that the books of defendant were the best evidence of the fact sought to be proved, and invoked the best evidence rule. Counsel for plaintiff in answer stated that it would require a week or ten days’ time to obtain the evidence by an audit of the books, and appealed to counsel for defendant to not interpose the objection, but to allow the mem-oranda to be admitted as evidence of the fact sought to be proved, subject to correction and without prejudice if an examination of the books proved that the memoranda were incorrect, and again appealed to the counsel for defendant to not unduly delay the matter before the court, recognizing that the objection offered was technically good. He stated in this connection:

“I know it [the objection] is good, and he knows it is good, and he knows that I am not going to fall into any trap; not that he is intending one, but I am not going to fall into any trap of attempting to get in, nor would the court, if I wanted to do it, of making the error of ruling secondary evidence instead of the best evidence. But why can’t we, as Greqnieaf says they do— It is a rare tiling, he says, when they do not agree to let the bookkeeper make it on the outside, and give the jury the result. Now, of course, that is all I am asking.”

This language, upon being excepted to by defendant, was withdrawn by plaintiff’s counsel, who requested the court to instruct the jury that they be not influenced thereby, and the jury were so instructed.

The witness Miss Sauer had testified that it would take a week or ten days or probably two weeks' to go into details in showing from defendant’s books, which had been brought into court in response to a subpoena duces tecum, the net profits of the ready to wear department during the time for which an accounting was sought, to which testimony the defendant objected and excepted. The remarks of counsel and the admission of the testimony of the witness Miss Sauer above referred to are made the basis of the appellant’s eleventh, twelfth, and thirteenth assignments of error; the contention being that the length of time it would require, by original evidence, to prove the profits' sought to be recovered by plaintiff, was immaterial and irrelevant, and that the argument of counsel, above referred to, and the interrogation of Miss Sauer, above referred to, had the effect of suggesting to the jury that counsel for defendant were obstinate and dilatory, and were unduly prolonging the trial, all of which was calculated to prejudice and probably did prejudice the jury against appellant. We think the contention is without merit. The remarks complained of were withdrawn, and the jury instructed by the court not to be influenced by them, and we must assume that the jury were governed by the court’s instruction. The length of time necessary to go through the books and make a statement therefrom of the profits of the department in question for the period under inquiry was probably immaterial and irrelevant, but we cannot see how the defendant could have been prejudiced by the admission of such proof.

The 'witness Miss Sauer testified that she had made from defendant’s books mem-oranda showing what the net profits of the ready to wear department for the two years for which an accounting was sought, and that the same were correct, and thereupon the same were introduced in evidence over the defendant’s objection. If the admission of this evidence was error, such error was afterwards rendered harmless by an admission of defendant that the memoranda were correct, and the amounts found by the jury were the result of such admission and the undisputed evidence, and no question is made about the correctness of the amounts thus found, if plaintiff was entitled to recover. The fourteenth and fifteenth assignments which raise the point are overruled.

The sixteenth assignment complains of the action of the court in permitting plaintiff to testify over defendant’s objection that during the time he was engaged with the defendant it was worth from $125,000 to $175,000. In approving the bill of exceptions' taken to the action of the court in admitting this testimony the court appended the following qualification:

“The defendant claimed at the trial, as a circumstance adverse to plaintiff, and gave evidence, that plaintiff had delayed making any demand for the accounting sought until the two years in question had passed; and the court was of the opinion that the testimony was relevant as bearing upon such delay on plaintiff’s part, he testifying that he did not make such demand sooner for the reason that he thought the defendant was good, and that he had similarly for the first two years under the contract, as to which he was afterwards settled with, made no demand. The testimony, however, being afterwards withdrawn, and the jury instructed by the court not to consider it, the court is satisfied that no prejudice resulted to defendant therefrom.”

We believe that the testimony in the circumstances was admissible, but, if not, the fact that it was afterwards withdrawn and the jury instructed not to consider it renders its admission harmless. The assignment is overruled.

The admission of proof adduced by plaintiff that the par value of the stock of the defendant was $25 per share, and that plaintiff paid $300 per share for certain shares purchased by him, if error, became harmless to defendant in view of the fact that the same proof was subsequently during the trial adduced by the defendant through its president, E. Alkemeyer, and by the production of its corporate records. The seventeenth assignment raising the point is overruled.

The eighteenth assignment is predicated upon a question propounded by plaintiff’s attorney to the witness Otto Taub, to which an objection was sustained. It does not appear to us that the question propounded was of a character to reasonably create in the minds of the jury any prejudice against the defendant, or to have been calculated to cause the rendition of an improper judgment.

We shall not discuss in detail the other assignments of error presented for a reversal. It must suffice to say that we have carefully examined all of them, and find no reversible error in any of them, and they are severally overruled.

The judgment of the court below is affirmed.

Affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=wFor' other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. LONG.
    (No. 5525.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 24, 1915.
    On Motion for Rehearing, Jan. 26, 1916.)
    1. Corporations <©=>423 — Torts—Slander.
    A corporation is liable for a slander uttered by its employé within the scope of his employment, as well as for other torts involving malice.
    [Ed. Note. — Eor other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906; Dec. Dig. <©=>423.]
    2. Courts <§=>89 — Rules op Decision — Au • thorities — Text-Books.
    Text-books are at bést only secondary authority, and their value depends on the care with which their authors examined the cases cited and their ability to draw correct conclusions therefrom.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 311, 312; Dee. Dig. <S=>89.]
    3. Corporations <©=>423 — Torts — Acts oe Employé — Scope oe Authority.
    A slander uttered by the manager of a corporation in giving an employé the reason for her discharge is within the scope of the manager’s employment, though he was not authorized to slander her.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1692-1695, 1903, 1906; Dec. Dig. <@=>4⅛3.]
    4. Libel and Slander <©=>33 — Actions—Evidence.
    In an action for slander, proof of special damages is not necessary where the words constitute slander per se.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 112, 277; Dec. Dig. <©=>
    5. Libel and Slander <®=>7 — Words Actionable-Slander Per Se.
    Statement by the manager of a telephone company to an employé that the company did not allow girls to work for it who were not ladies ; that she and her roommate had had men in their room at night — were slanders per se.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. <§=>7.]
    6. Telegraphs and Telephones <©=>48 — Slander by Manager — Slander.
    A telephone company is liable for a slander, uttered by its manager in discharging an em-ployé, as a violation of its duty to protect young ladies employed by it from insult and slander by its manager in the conduct of its business.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 30; Dec. Dig. <©=> 48.]

      7. Libel and Slander <&=80 — Actions — Pleading.
    In an action against a telephone company for slander by its manager in discharging an em-ployé, where the employé does not sue for damages for her discharge, a special exception to allegations in the petition that she satisfactorily performed all of the duties required of her should be sustained.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. <§=> 80.]
    8. Libel and Slander <§=>107 — Right oe Action — Damages.
    In an action for slander, whether plaintiff was rich or poor was not material to either her right of action or measure of damages.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 209-303, 305, 351; Dec. Dig. <®=>107.]
    9. Libel and Slander <§=>80 — Actions — Pleading.
    In an action against a telephone company for slander by its manager in discharging plaintiff, an employé, where no damages are claimed for being compelled to leave the office of the company, an exception to allegations that the plaintiff left the telephone office because she feared that the manager would assault .her should be sustained.
    [Ed. Note. — Eor other eases, see Libel and Slander, Cent. Dig. §§ 184-186; Dec. Dig. <§=> 80.]
    10. Libel and Slander <§=>89 — Actions — Pleading. '
    In an action for slander, the facts as to impairment of plaintiff’s health by reason of the slander should be alleged.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 213, 214; Dec. Dig. <§= 89.]
    11. Appeal and Error <§=>1060 — Review — Prejudicial Eeeect oe Error — Remarks oe Counsel.
    Where there was a verdict for $20,000 for slander, the Court of Appeals will not hold that improper and highly inflammatory remarks of counsel for plaintiff do not constitute reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. <§=>1060.]
    12. Telegraphs and Telephones <§=>48 — Slander by Manager — Scope oe Employment.
    A slander, uttered by the manager of a telephone company in offering employment to another in place of plaintiff, who was discharged, and giving the reason for the discharge, was not within the scope of the manager’s employment.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 30; Dec. Dig. <§=> 48.]
    13. Pleading <§=>369— Motions — Election Between Causes.
    In an action against a telephone company and its manager for slanders uttered by the manager within the scope of his employment and outside the scope of his employment, the plaintiff should be compelled to elect whether to proceed against both parties jointly for the slander uttered by the manager as agent for the company or for those uttered by the manager in his individual capacity.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 1199-1209; Dee. Dig. <⅜=369.]
    14. Libel and Slander <§=>28 — Actions — Damages.
    Where words constitute slander per se, the damages are not limited to utterances by the de-r fendant alone, their repetition being the natural and probable result of the original slander.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 104; Dee. Dig. <®=>28.]
    15. Torts <§=>15 — Proximate Cause.
    Every one is responsible for injuries of which his own wrong is the proximate cause.
    [Ed. Note. — Eor other cases, see Torts, Cent. Dig. §§ 19-22; Dec. Dig. <§=>15.]
    On Motion for Rehearing.
    16. Appeal and Error <§=>1173 — Disposition oe Cause — Eeeect as to Copartners.
    Under Rev. St. 1911, art. 1997, providing that there shall he but one judgment, on an appeal by one defendant from a judgment against both, a reversal as to the appellant will operate as a reversal of the judgment as to both defendants, notwithstanding the consent of the other defendant to an affirmance as against him, to which the plaintiff refuses to consent.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. <§=>1173.]
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge.
    Action by Ila Long, by next friend, against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded for new trial.
    A.P. Wozencraft and S. P. English, both of Dallas, and Batts & Brooks and Hart & Woodward, all of Austin, for appellant. E.
    B. Coopwood and J. B. I-Iatchitt, both of Lockhart, and Eiset, McClendon & Shelley, of Austin, for appellee.
   JENKINS, J.

This is a suit by Ila Long, suing by her next friend, J. M. Long, against C. M. Dold and the Southwestern Telegraph & Telephone Company, to recover damages by reason of alleged slander, uttered by said Dold. Appellee, a young lady, aged 19 years, was employed by the appellant as a telephone operator in its office at Lockhart, Tex. C. M. Dold was the manager of appellant at said office, with authority to discharge employes, and to prevent improper persons from loitering in the office building of said telegraph company. H. B. Wheatley was appellant’s district manager. His district included the Lockhart office. Appellee and Miss Sadie Wilkins, another employé of appellant, were rooming at the residence of Dold, and using his kitchen and dining room for the purpose of light housekeeping. On the morning of September 9th, Dold had a conversation with Miss Wilkins in his dining room in the presence of his wife, in which he used language substantially the same as he subsequently used to both appellee and Miss Wilkins. He came to the door of their room, just across from the dining room, and told them that they were discharged; that the company did not allow girls to work for it who were not ladies; that they had had men in their room at night. He told them that they must leave his house at once, that he would give them 15 minutes in which to leave, and that if they did not do so, he would have the sheriff put them out. Subsequently, on the morning of the same day, ap-pellee, accompanied by Miss Wilkins, went to the telephone office for the purpose of talking to her sister in San Marcos. After finishing the conversation, both of the young ladies were in the rest room of the telephone office, when Dold entered and called them into the hall. He there said to them: “Why haven’t you girls left town like I told you?” One of them replied that they didn’t have to leave town. Dold said that if he had done what they did he would be ashamed to be seen on the streets of Lockhart, let alone in people’s houses. He hold them to get out of there at once; that the telephone company did not allow girls who were not ladies to hang around the office. Miss Wilkins replied that she was as pure a lady as his wife, and more so, after what she had accused them of. Dold said, “If you were a man I would slap you down stairs.” Miss Wilkins replied that she was a lady, and that he could knock her down stairs if he wanted to. During this conversation Miss Addie Paige, another employ# of appellant, passed slowly by near enough to have heard what was being said'. The night before the above occurrences, Dold told Henry Drake, a former employe of appellant, that he was going to discharge appel-lee and Miss Wilkins and wished to employ him to work in their place, that his reason for discharging them was that he had found that they were of disreputable character, of such character that the telephone company would not allow them to work for it; that they were crooked. The evidence showed that appellee suffered great shame and mortification by reason of the conduct of Dold as above stated, but there was no proof that she had suffered in the estimation of her friends and acquaintances, or had been denied employment by reason of said charges. There was a jury trial. No evidence was offered by appellant tending to impeach the character or reputation for chastity of either appellee or Miss Wilkins. The jury returned a verdict in favor of appellee, assessing her damages at $20,000, and judgment was entered accordingly. The telephone company only has appealed.

Opinion.

Appellant’s first assignment of error relates to the refusal of the court to peremptorily instruct the jury to return a verdict for appellant. The substance of appellant’s first proposition under this assignment is that a corporation is not liable for a slander uttered by one of its employSs, unless it expressly authorized, or subsequently ratified, the same; and, as in this case there is no proof of express authority to utter the slander, and as ratification of the same is neither pleaded nor proven, a peremptory instruction should have been given to return a verdict for the defendant, appellant herein. As to the necessity of showing express authority, neither reason nor the authorities differentiate corporations from individuals in this respect.

“Private corporations are liable for their torts committed under such circumstances as would attach liability to natural persons.” Sawyer v. Railway Co., 142 N. C.1, 54 S. E. 793, 115 Am. St. Rep. 716, 9 Ann. Cas. 440.

In Hypes v. Railway Co., 82 S. C. 315, 64 S. E. 395, 21 L. R. A. (N. S.) 873, 17 Ann. Cas. 620, the court said;

“It is established that corporations, as well as natural persons, are liable for the willful tort of an agent acting within the general scope of his employment, without previous express authority or subsequent ratification.” Rucker v. Smoke, 37 S. C. 377, 16 S. E. 40, 34 Am. St. Rep. 758; Williams v. Tolbert, 76 S. C. 217, 56 S. E. 908; Schumpert v. Railway Co., 65 S. C. 332, 43 S. E. 813, 95 Am. St. Rep. 802; Gardner v. Railway Co., 65 S. C. 342, 43 S. E. 816; Riser v. Railway Co., 67 S. C. 419, 46 S. E. 47; Dagnall v. Railway Co., 69 S. C. 115, 48 S. E. 97; Fields v. Cotton Mills, 77 S. C. 549, 58 S. E. 608, 11 L. R. A. (N. S.) 822, 122 Am. St. Rep. 593.

In W. P. Oil Co. v. Birdwell, 103 Ark. 545, 147 S. W. 64, the court states that there is no evidence in the record of express authority of the agent to commit the slander, but held the defendant liable on the ground of implied authority. In Bushel v. Ins. Co., 15 Serg. & R. (Pa.) 176, Rogers, J., said:

“They [corporations] are bound by like implications and inferences which bind natural persons.”

It is but just to the learned counsel for appellant to say that they have not suggested in their able brief herein that a corporation may not be held liable for other torts committed by their agents by implied authority, but their contention is that this legal principle does not apply to slander. If it appears that there is no sound reason for this distinction, then the exception fails, and slander is governed, in this regard, by the general principle above announced. There are decisions which support appellant’s contention. These rely principally upon grounds: (1) That as malice is a necessary ingredient of slander, a corporation, having no mind, cannot entertain malice, and therefore cannot be guilty of slander; (2) that slander is usually the voluntary act of the speaker, committed under the immediate influence of sudden passion, and therefore the law ascribes it to the personal malice of the agent, rather than to an act performed in the course of his employment, and in furtherance of the business of the employer.

As to the ground that a corporation has no mind: It is true that for many purposes a corporation is held to be a separate entity from the natural persons who compose it, yet it is, in fact, but the aggregation of such persons, and the mind of such of them as are chosen to manage its affairs is its mind.

“The old doctrine that a corporation, having no mind, cannot be liable for acts of agents in* volving malice has been completely exploded in modern jurisprudence.” Hypes v. Railway Co., supra.
“It is well settled * * * that a corporation may, to the same extent as a natural principal, be held liable for the malicious wrongs of its officers or agents, if committed in the course of a transaction which is within the scope of their authority.” Sawyer v. Railway Co., supra.

' No one who has the slightest knowledge of law would assert that a corporation could not be guilty of libel, and libel necessarily involves malice. Nor would it be denied that a corporation may be guilty of malicious prosecution or false imprisonment.

The admission implied in appellant’s proposition that a corporation may be held liable for slander where it expressly authorizes the same is itself an answer to the doctrine that a corporation cannot be held liable for malice; for a corporation, being an incorporeal entity, must necessarily act through agents where it expressly authorizes such action. In such case it is held to be immaterial that the authorized act was ultra vires, as not being in the scope of its corporate powers. Hussey v. Norfolk S. R. Co., 98 N. C. 34, 3 S. E. 923, 2 Am. St. Rep. 312. The doctrine of ultra vires, in so far as it relates to private corporations, is applicable only to matters ex contractu. A tort is necessarily ultra vires because no corporation is authorized by its charter to commit a wrong.

As to the second proposition that slander is the voluntary act of the speaker, committed under immediate influence of sudden passion, the same may be said, in some instances, of libel. A slander may be, and in some instances undoubtedly is, uttered with deliberate and preconceived malice, while the publication of a libel may be, and in some instances undoubtedly is, made under the influence of sudden passion. If this distinction should be recognized it would not be true, as a matter of- law, that a corporation could not be held liable for the utterance of a slander, but its liability would depend upon the degree of malice which actuated the agent in uttering the defamatory words. If defamatory words are falsely uttered with malice, it is slander, regardless of whether the same be done with express or - implied malice, and the same is true of libel. It has never been held that a corporation was not liable for a libel if published without deliberation and under the influence of sudden passion. In both libel and slander, express malice may be a material consideration in assessing the damages, but it is immaterial as to fixing liability. Another reason which has been suggested for holding the principal liable in libel, but not in slander, is the greater publicity given to the printed matter. This may or may not be true in a given case. A libel may consist in a written statement in a letter seen by only one person, while a slander may be uttered in the presence and hearing of a thousand or more people. Here again, as in the case of express or implied malice, the degree of publicity might be taken into consideration in assessing the amount of damage, but not in fixing liability. The damage would be greater to a man of statewide business or social relations if a libel concerning him was published in a paper of 100,000 circulation than if published in a paper of very limited circulation and confined to a given locality; but the one would be as much a libel as the other. In slander and in libel, neither the extent of the publication nor the degree of malice is a determinative factor. In Rivers v. Railway Co., 90 Miss. 196, 43 South. 471, 9 L. R. A. (N. S.) 931, the court said:

“Lord Mansfield very accurately said, in Ma-loney v. Bartlett, 3 Campb. 210, that ‘there seemed * * * to be no well-founded distinction between written and unwritten slander,’ and that ‘the reasons given in the books for such a distinction are very insufficient.’ ”

The reasons thus referred to by Lord Mansfield are the comparative publicity and the comparative malice in libel and in slander. In Hypes v. Railway Co., supra, the court said:

“The liability of a corporation for malicious libel, published by its agent in the course of his employment, is generally recognized. Phila. W. & B. R. Co. v. Quigley, 21 How. 202, 16 L. Ed. 73; Johnson v. Dispatch Co., 65 Mo. 539, 27 Am. Rep. 293; Bacon v. Michigan C. R. Co., 55 Mich. 224, 21 N. W. 324, 54 Am. Rep. 372; Maynard v. Fireman’s Fund Ins. Co., 34 Cal. 48, 91 Am. Dec. 672; Fogg v. Boston & L. R. Corp., 148 Mass. 513, 20 N. E. 109, 12 Am. St. Rep. 583; M. & P. R. Co. v. Richmond, 73 Tex. 568, 11 S. W. 555, 4 L. R. A. 280, 15 Am. St. Rep. 794; 10 Cyc. Law & Proc. p. 1215; 18 A. & E. Ency. Law, p. 1058. We do not regard the distinction between written and unwritten slander to be of sufficient importance to warrant the application of a different rule.”

In Payton v. Credit Co., 136 Mo. App. 577, 118 S. W. 531, the court said:

“That a corporation may be held responsible for a slander uttered by an officer or agent within the scope of his employment is no longer a debatable question.”

The cases principally relied upon by appellant to sustain its contention now under discussion are Behre v. Register Co., 100 Ga. 213, 27 S. E. 986, 62 Am. St. Rep. 320; Distributing Co. v. Greenbaum Bros., 135 Ky. 182, 121 S. W. 1026, 24 L. R. A. (N. S.) 955, 21 Ann. Cas. 481; Mfg. Co. v. Taylor, 150 Ala. 574, 43 South. 210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90; Eichner v. Bank, 24 App. Div. 63, 48 N. Y. Supp. 978; Comerford v. Railway Co., 164 Mass. 13, 41 N. E. 59; Kane v. Ins. Co., 200 Mass. 265, 86 N. E. 302; Flaherty v. Maxwell Motor Co. (Mich.) 153 N. W. 45.

The Behre Case, supra, rests upon the exploded doctrine that a corporation has no mind, and therefore “has not the capacity to commit that wrong” (slander). The case of Distributing Co. v. Greenbaum, supra, was before the court on appeal from a judgment sustaining a demurrer to plaintiff’s petition, the allegations of which showed that Green-baum’s agent, when he uttered the slanderous words, was not acting as the agent of bis employer, and that the words uttered had no connection with his employer’s business. The court held, and very properly so, that the petition showed no cause of action. There was no occasion to discuss what would have been the law if the slanderous words had been uttered by the agent in the course of his employment. The language of the decision in this regard seems to have been used without mature consideration. In justification of this criticism we call attention to the fact that the court first discusses at some length that slander is an individual act, and cannot be a joint act, which was not involved in the ease. It then announces the correct doctrine that a corporation may be held liable for a libel published by its agent. We quote from the decision as follows:

“That a corporation or partnership may be sued in libel for actionable words written and published by its agents is well settled, not only by the decisions of this court, but by the authorities generally.”

In support of this statement it cites a long list of authorities. It then adds:

“It is true that these authorities relate to libel, but upon principle there can be no reason why the corporation or copartnership may not also be sued for the slanderous utterances of its agent. Libel is no more a tort than slander, the only difference (italics ours) between them being that in libel the words are written, while in slander they are spoken.”

The court then proceeds to draw a distinction which we have, in a preceding part of this opinion, attempted to show does not exist, and in support of which the opinion cites not a single authority. The decision in Mfg. Oo. v. Taylor, supra, quotes with approval an excerpt from Jordan v. Railway Co., 74 Ala. 85, 49 Am. Rep. 800, that:

“The current of authority now is that corporations are responsible civilly, the same as natural persons, for wrongs committed by their officers, servants, or agents while in the course of their employment.”

That is to say, upon implied as well as direct authority, but it makes an exception as to slander, upon the ground that “slander is the voluntary tortious act of the speaker, and is more likely to be the expression of momentary passion of excitement of the agent,’.’ which, as we have said, is not sound, and is against the weight of authority. The court cites in support of its opinion Cooley on Torts, 124. The citation is not apropos inasmuch as it is only to the effect that there can be no joint utterance in slander, but that:

“If two or more utter the same slander at the same time, still the utterance of each is individual and must be the subject of a separate proceeding for redress.”

In such ease the doctrine of agency is not involved. But the court in the case which it was discussing recognized that there could be a joint proceeding in slander against a corporation and its agent, where the agent uttered the slander by the express authority of the corporation, or where the corporation ratified the slander. On this all authorities are agreed. The court also cites 10 Cyc. 1216. The only authority cited to sustain the text of this usually reliable work is Redditt v. Mfg. Co., 124 N. C. 100, 32 S. E. 392. That case not only does not support the text, but is authority against it. The doctrine there announced and concurred in by all members of the court is: •

“That a corporation, contrary to the early eases, is now liable to civil and criminal actions under the same conditions and circumstances as natural persons are * * * if they act under the express or implied authority.”

We quote further from the Redditt Case as follows:

“The principle which we approve is well stated in State v. Railroad, 23 N. J. Law, 360: ‘If a corporation has itself no hands with which to strike, it may employ the hands of others; and it is now perfectly well settled, contrary to the ancient authorities, that a corporation is liable eiviliter for all torts (italics ours) committed by its servants or agents by authority of the corporation, express or implied.’ ”

The Redditt Case was a suit for slander. No distinction between slander and other torts was attempted to be drawn. The case was reversed, as shown by the concurring opinion of the majority of the judges, upon the ground that the evidence was not sufficient to show implied authority on the part of the agents to utter the slanderous words. Neither Comerford v. Railway Co., supra, nor Kane v. Insurance Co., supra, is in point. The former case went off on the point that the allegata and probata did not agree, and the latter case upon the point that:

“There was no offer to prove that what was-said by either of the solicitors was said in the course of his employment, or while acting in the apparent scope thereof.”

In Eichner v. Bank, supra, the court cites no authority, except Townshend on Slander and Libel and Odgers on Slander and Libel. The citation from Townshend is section 265, wherein it is said that a corporation cannot be guilty of slander because there can be “no agency in slander,” which the Supreme Court of Mississippi, in Rivers v. Railway Co., supra, justly characterizes a ridiculous expression, and because a corporation has not the “capacity” to commit slander, which, if not quite so ridiculous, is as thoroughly exploded. Townshend cites no authority except Maloney v. Bentley, 3 Comp. 210, which does not tend to support his text. That case was a suit against an individual for a libel, and neither slander nor the responsibility of a corporation was involved. Text-books are, at best, only secondary authority, and their value depends upon the care with which their authors examine the-cases cited and their ability to draw correct conclusions therefrom. Odgers’ statement that a corporation cannot be held liable for slander, because “slander is the voluntary act of the speaker,” rests upon his own ipse dixit. He cites no authority to sustain his text, and none is cited in the notes to the American edition. The ease of Flaherty v. Motor Car Co., supra, rests upon tlie doctrine announced in tlie Behre Case, supra, that a corporation has no mind, and repeats the inconsistency, found in all cases affirming this doctrine, that a corporation has sufficient mind to be guilty of slander through the medium of an agent, if it directly authorizes or subsequently ratifies such slander.

The appellant insists that the words uttered by Dold were not within the scope of his authority, for though the appellant had authorized him to discharge appellee, it did not authorize him to slander her. This is but a concrete statement of the doctrine hereinbefore discussed that in slander a corporation cannot be held liable for implied malice, and that in the absence of direct authority to utter the slander, which would be proof of express malice, the slander is to be attributed solely to the malice of the agent who utters it. It is true that the appellant corporation did not expressly authorize Dold to slander appellee, and had no desire that he should do so, but it did authorize him to discharge appellee, and to protect its office from the intrusion of improper persons, and it is responsible for the wrongful manner in which he discharged this duty'. A distinction must be drawn between doing a thing merely contemporaneously with something done within the scope of the agent’s authority and something wrongfully done as a part of the act within the scope of such authority. There is an old and apt illustration where the driver of a cart negligently or maliciously drove the same against the horse of another, and where, while driving the cart, in order to wreak his own vengeance, he maliciously struck .the horse of another in passing him. In the first instance he was doing what his .employer had authorized him to do, viz., drive the cart, and his employer is responsible for the manner in which he does so, regardless of the fact that he may have been actuated by his personal malice in driving the cart as he did. In the other ease, though he happened to be driving the master’s cart at the time he struck the horse, he did not strike it in the execution, or in the attempted execution, of that business, and striking the horse had no more real connection with his business of driving the cart than if he had not been in the master’s employment at the time. In the instant case Dold was authorized to discharge appellee, and his employer, who clothed him with that authority, is responsible for the manner in which he executed his commission. Levi v. Brooks, 121 Mass. 501; Geraty v. Stern, 30 Hun (N. Y.) 426; Dillingham v. Russell, 73 Tex. 51, 52, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753; Railway Co. v. Bender, 57 S. W. 574.

As to appellant’s fourth proposition that the peremptory instruction should have been given because no special damages were proven, such proof is not necessary where the words uttered constitute slander per se, as they did in the instant ease. Forke v. Homann, 14 Tex. Civ. App. 670, 39 S. W. 210; Cranfill v. Hayden, 22 Tex. Civ. App. 656, 55 S. W. 812; Clark v. Bohms, 37 S. W. 349; Printing Co. v. Moulden, 15 Tex. Civ. App. 574, 41 S. W. 387; Bailey v. Chapman, 15 Tex. Civ. App. 240, 38 S. W. 545.

For the reasons stated, appellant’s first assignment of error is overruled.

We also overrule said assignment for the further reason that appellant is liable to appellee for the slander uttered by its superintendent, by reason of the contractual relation existing between appellant and appellee. That such liability exists on the part of railroads is recognized in Mfg. Co. v. Taylor, supra, and this is undoubtedly the law. Traction Co. v. Lambkin, 99 S. W. 574; Railway Co. v. Martino, 2 Tex. Civ. App. 634, 18 S. W. 1066, 21 S. W. 781; Railway Co. v. Laprelle, 27 Tex. Civ. App. 496, 65 S. W. 488; Railway Co. v. Tarkington, 27 Tex. Civ. App. 353, 66 S. W. 137. See, also, authorities cited in note to Davis v. Houghtelin, 14 L. R. A. 738. We do not see why the telephone company was not under as much obligation to the young ladies employed by it to protect them from insults and slander by its manager in the conduct of its business as is a railway company to protect its passengers from insults or slander by its conductor. It is true that a railway company is required to exercise the highest degree of care to prevent injury to its passengers. But in eases of willful assault or malicious insult by a conductor, the question of the degree of care is not involved. This principle of law is applicable only when upon a given state of facts the issue is whether or not the railroad company was guilty of negligence.

Appellant’s second assignment relates to the action of the court in overruling its special exception to that portion of appellee’s petition which alleges that she satisfactorily performed all of the duties required of her. We sustain this assignment for the reason that appellee did not sue for damages on account of her discharge.

We sustain the third assignment of error. Whether appellee was rich or poor was not material to either her right of action or measure of damages; hence the special exception should have been sustained.

We sustain the fourth assignment of error. The allegation that appellee left the telephone office because she feared that Dold would assault her was immaterial. She does not claim any damage by reason of being compelled to leave the office. Such allegations could serve no legitimate purpose, and were calculated to prejudice the jury against appellant.

We sustain the ninth and nineteenth assignments of error only so far as they relate to the prior impairment of appellee’s health by reason of the slander. The facts as to this should have been alleged.

We sustain the twelfth, thirteenth, fourteenth, and seventeenth assignments of error in reference to remarks of appellee’s counsel to the jury. The statements complained of were improper and highly inflammatory, and, in view of the fact that the verdict was large, if not excessive, we cannot say that they do not constitute reversible error. As this ease is to be reversed on other grounds, we do not deem it necessary to pass on the eighteenth assignment, which is that the verdict is excessive.

We sustain the twenty-first and twenty-second assignments of error with reference to the testimony of Henry Drake, for the reason that the statements of Dold to Drake were not made within the scope of his employment, and, while said statements were slanderous per se, and constituted a good cause of action against Dold, such cause of action against Dold individually was improperly joined in a suit against Dold and appellant jointly. The appellee should have been compelled to elect whether she would proceed against appellant and Dold jointly for the slanders uttéred by Dold as agent for appellant, or for those uttered by Dold in his individual capacity. Appellant specially excepted to appellee’s petition on account of such misjoinder of parties and causes of action. This exception should have been sustained, for which reason we sustain the thirtieth assignment of error.

The thirty-first assignment is as to the court’s permitting this action to be maintained by J. M. Long as the next friend of Ila Long. The issue raised by this assignment can, and doubtless will, he obviated upon another trial by appellee’s alleging and proving, if such is the fact, that she has no legal guardian. The error, if any, complained of in the thirty-second assignment of error will doubtless be cured by an amended petition upon another trial hereof.

Appellant’s tenth assignment of error is as to the refusal of the court to give the following special charge:

“In considering the amount of damages, if any, to be allowed, you are instructed that you can only consider the actual damage, if 'any, which you believe from the evidence plaintiff, Ila Long, has sustained, or will sustain, by reason of the alleged utterances, if any, having been heard by those persons, if any, who had heard the same directfy from G. M. Dold" (italics ours).

The same issue is presented by the eleventh assignment. Appellant cites in support of its proposition King v. Sassaman, 54 S. W. 304; Shurtleff v. Parker, 130 Mass. 293, 39 Am. Rep. 454; Stevens v. Hartwell, 11 Metc. (Mass.) 542; Pettibone v. Simpson, 66 Barb. (N. Y.) 492; Gough v. Goldsmith, 44 Wis. 262, 28 Am. Rep. 579; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420; Prime v. Eastwood, 45 Iowa, 640; Rutherford v. Evans, 4 Car & Payne, 74, 19 E. C. C. 414; Ward v. Weeks, 7 Bing. 211, Reprint Eng. R. 81, 20 Com. Law R. 101; Odgers on Libel and Slander, 177; Newell on Libel & Slander, 431.

There is no disagreement as to the doctrine announced in the text-books cited by appellant as to the individual character of slander, nor from the statements of the authors that if A. utters slanderous words concerning the servant of B., and C. repeats the words to B., by reason of which the servant is discharged, the unauthorized repetition by O. is not a slander uttered by A., and that special damage is not recoverable by the servant against A. This, it seems, upon the ground that, as special damage must be specifically alleged, and is not to be inferred but must be proven, where an independent will has intervened between the act of A., and that which caused the damage, viz., the repetition of the slander, the original utterance by A. is not the proximate cause of the injury.

It is a sound proposition of law that every one is responsible for the injuries of which his own wrong is the proximate cause. When an (act is a cause of an injury, and without which such injury would not have occurred, and such injury is the usual and natural consequence of the act and ought reasonably to have been foreseen, such act is the proximate cause of the injury. Generally, when special damages are claimed, where an independent act of a third person intervenes, and directly causes the injury, the act of the original wrongdoer is not the proximate cause of the injury. This upon the ground that one is not usually expected to foresee that his wrongful act, which would not itself have inflicted the injury, will be so acted upon by another wrongdoer, for whose act he is not directly responsible, as to cause the injury. But this is not always the case. If he ought reasonably to have foreseen that his wrongful act would be acted upon by a third party so as to inflict the injury, he is responsible, notwithstanding such intervening act of a third party. .

“The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer if such act ought to-have been foreseen. The original negligeflce still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not on the number of subsequent events and agencies which might arise.” Railway Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075, 24 L. R. A. 642, citing Lane v. Atlantic Works, 111 Mass. 139; Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17; Jones v. George, 61 Tex. 346; Railway v. McKinsey, 78 Tex. 298, 14 S. W. 645, 22 Am. St. Rep. 54 ; Weick v. Lander, 75 Ill. 93.

This reasoning applies with more force where the original tort is not the negligent omission of duty, but is an affirmative wrong. In Gonzales v. Galveston, supra, page 7 of 84 Tex., page 285 of 19 S. W. [31 Am. St. Rep. 17], the court defined proximate cause as—

“such as might reasonably have been contemplated as involving the result under the attending circumstances.”

This doctrine is illustrated by the old case mentioned in the books where a! person threw a lighted squib into a crowd, and the persons therein, for their own protection, threw it from hand to hand until finally a party was injured thereby who would not have been injured but for acts of intervening parties. The original wrongdoer was held liable for the injury. It is true in that case that the acts of the intervening parties were not wrongful. It is also true that ordinarily it will not be presumed that a party reasonably anticipated that another would do a wrongful act because he had done so. But if the circumstances are such as to show that he ought reasonably to have anticipated such intervening act as a consequence of his own wrong, it can make no difference in principle whether such intervening act is rightful or wrongful, nor in such ease that the party or parties guilty of the intervening wrongful acts are also responsible for the consequences of their own acts. This does not relieve the original wrongdoer from “the probable injurious consequences which were to be anticipated from his own wrongful act.”

In slander per se, proof of actual damages is not required. Why? Because the law not only reasonably anticipates, but conclusively presumes, damages in such case. What damages? Principally to reputation, by reason of which the person slandered suffers mental anguish from shame and mortification and the loss of the society of good people. It would be no defense to prove in such case that the slander was uttered in the presence of only two or three persons, who did not believe it, and had so informed the plaintiff, and that in fact neither of them had repeated the slander. The slandered person, knowing human nature, as every person is presumed to know, would nevertheless suffer mental anguish in anticipation that such slander would probably be repeated and become current in the future. It is the anticipation of such fact which causes the major portion of the mental suffering in such case. Ought a party who utters words so derogatory as to constitute'slander per se be held to have reasonably anticipated that they would be repeated? We think so. We think that the fact that the law conclusively presumes damages from the utterance of a slander per se, even though in the presence of but one person, who did not believe it, shows that the slanderer must be held to have reasonably anticipated its repetition, from which, as experience shows, may arise the only injury suffered. Any person with sufficient intelligence to be guilty of slander ought, in the light of common experience, to anticipate the repetition of such slander, and the injurious consequence thereof. He who utters a slander, especially against the reputation of a woman for chastity, must know that he is opening a veritable Pandora’s box. He must realize that he is turning loose, as it were, the down of thistle, and ought not to be heard to say that he is not responsible for the wind’s scattering it abroad. The “breath” of scandal blows almost as universally as does the wind. Of a scandal, even when uttered to only a few persons, it may well be said:

“Behold how great a matter a little fire kin-dleth” (James 3:6) ; and, “He that Mndloth a fire shall surely make restitution” (Exodus, 22:6).

We cannot tell from the opinion in King v. Sassaman, supra, to what extent the matter of repetition was considered by the court. If, however, the court referred to reports originated by the defendant, it is sufficient to say that in that case the plaintiff was suing for “vindictive,” as well as actual, damage, and what appears to have been a passing remark of the court was correct as applied to exemplary damages.

The texts in both Odgers and Newell, supra, have reference to defamatory words which are not actionable per se, and where special damages are alleged. In such case the authorities cited by appellant sustain the proposition that the original utterer of a slander is not responsible for the damage ensuing from its repetition. Newell, referring to this proposition, says:

“But this apparent hardship only arises where the words are not actionable without proof of special damag-e. When the words are actionable in themselves, the jury may find damages generally, and will judge from the circumstances what the amount will be.” Newell on Slander and I/ibel, 432.

Odgers (1st Am. Ed. 318) says that special dama'ges must be pecuniary, and do not include—

“mental distress, illness, expulsion from a religious society, etc. But where the words are actionable per se, the jury may take such matters into their consideration in according damages.”

In each of the American cases cited by appellant, supra, except Prime v. Eastwood, the court explicitly states the words were not actionable per se, and that only such special damages as were proven could be recovered. It would seem that the words spoken in Prime v. Eastwood were actionable per se, but the court did not refer to this fact; on the contrary it treated the case wholly as an action for special damage, citing Terwilliger v. Wand, supra, in reference to “defamatory words not actionable in themselves.” Besides there was no offer to prove that the slander per se uttered by defendant had been repeated, but only that:

“There was a rumor in the neighborhood in reference to plaintiff, and that plaintiff had claimed that defendant had some of Ms hogs.”

It appears that both parties were claiming the same hogs. The court held that this testimony was not admissible.

We have not thought it necessary to examine the English authorities cited by appellant supra, but we infer from their citation in text-books that they do not relate to actions for slander per se. If it is otherwise, we would not consider as very persuasive in this matter title decision of courts in a country where it is held not to be slander per se to call a virtuous woman a “whore” or a “prostitute.” Referring to this Lord Campbell said:

“I may lament the unsatisfactory state of our law according to which the imputation of words, however gross, on an occasion however public, upon the chastity of a modest matron or a pure virgin, is not actionable without proof that it has actually produced special temporal damages to her.” Lynch v. Knight, 9 H. L. O. 593.

Lord Brougham added:

“Instead of the word ‘unsatisfactory’ I should substitute the word ‘barbarous.’ ” Id. 594.

We overrule the other assignments of error. The length of this opinion, rendered unavoidable by the importance of the Questions discussed herein, preclude our giving our reasons for so doing, though some of them present interesting questions of law.

Eor the reasons stated, the judgment of the lower court is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

On Motion for Rehearing.

Appellant insists that, inasmuch as its codefendant, Dold, did not appeal, and as he has filed in this court his written consent that the judgment of the lower court herein be affirmed as to him, such judgment should be affirmed as to him and reversed and remanded as to appellant. Against this ap-pellee enters her vigorous protest. Thus is presented the remarkable spectacle of a defendant, against whom a judgment for $20,-000 has been rendered, asking that the same be affirmed, and the plaintiff therein protesting against such affirmance. When it is remembered that the appellant is a foreign corporation, and, if prosecuted alone, might secure a removal of this cause to the federal court, the reason for the anomalous position of the parties hereto may be surmised; but with that, further than it affects their legal rights, this court is not concerned.

We have held in our original opinion herein that, as to two of the alleged slanders, the defendants were joint tort-feasors. Such being the case, the appellee had the legal light to sue them jointly, and we do not think that any one can deprive her of that privilege without her consent, at any stage of the proceeding. It is true that, as she might have brought her suit against either of them separately, she may dismiss as to either of them, or, having obtained a joint judgment against them, Dold not having appealed, with his consent, which might be inferred from his failure to appeal, and with the consent of the appellant company, she might have an affirmance against Dold and continue her case against the company, upon the ground that both Dold and the company would be estopped to subsequently object to such proceeding. Whether this would be true or not we are not called upon to decide, for' the reason that the appellee is not consenting to such action.

The statute provides that there shall be but one final judgment (article 1997, R. S.); and, inasmuch as the plaintiff has not abandoned her cause of action against the defendants jointly, but is insisting upon the same, we hold that a reversal as to one of such defendants operates as a reversal as to both of them. Danner v. Walker-Smith Co., 154 S. W. 301, 302; Railway Co. v. Smith, 99 S. W. 171; Hamilton v. Prescott, 73 Tex. 565, 11 S. W. 548.

Motion overruled.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. WILKINS.
    (No. 5526.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 24, 1915.
    Rehearing Denied Jan. 26, 1916.)
    1. Trial <g=»12l(2) — Argument of Counsel— Evidence to Sustain.
    In an action for general damages for slander, remarks by plaintiff’s counsel that: “Slander goes upon wings and is scattered; slander gets wings and never stops” — were proper; proof of the natural consequences of an act shown by the testimony not being necessary to warrant counsel to refer to them.
    [Ed. Note. — Por other_cases, see Trial, Cent. Dig. §§ 294-298, 300; Dee. Dig. @=»121(2)J
    2. Evidence ⅞⅝»121 — Competency—Res Ges-T-as.
    In an action against a telephone company for slander uttered by its manager, in stating that the company did not allow girls who were not ladies to hang around the office, the response of plaintiff that she was as pure as the manager’s wife was competent as part of the res gestae.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. <©=>121. ]
    3. Libel and Slander <§=>105 — Actions — Evidence.
    In an action for slander, where it is shown that defendant’s manager at his house told plaintiff and her roommate that they were discharged ; that defendant company did not allow girls to work for it that were not ladies; that they had had men in their room at night, and later at the company’s office told them to get out; that defendant did not allow girls who were not ladies to hang about the office, whereupon plaintiff said that she was as pure as the manager’s wife — his reply that if she were a man he would slap her downstairs was competent, as tending to show that he meant by his language at the house to charge her with having had carnal intercourse with men.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 282, 283, 292-294; Dee. Dig. <©=>105J
    4. Libel and Slander <§=>88 — Pleading — Petition.
    Allegations, in a petition for slander, that plaintiff would henceforth be debarred from honorable employment; that she had suffered in her reputation among the people of the community ; that she would henceforth be looked upon with scorn and ridicule, and would always be excluded from the society of respectable people, not knowing the falsity of the imputations cast upon her — are not objectionable as being vague and uncertain, nor as alleging remote and speculative damages.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 212; Dec. Dig. <§=88.]
    5. Libel and Slander <§=88 — Pleading— Damages.
    In an action for general damages for slander, the petition need not itemize the elements of damages as to what amount was claimed for loss of employment, what for loss of society, etc., hut may allege the damage in the aggregate.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. § 212; Dec. Dig. <§=>88.]
    6. Libel and Slander <§=124 — Instructions.
    In an action against a corporation for slander by its manager, instructions, authorizing recovery if the manager was the agent of the company and was then acting for it within the scope and authority of his employment, is not objectionable as permitting a recovery merely because the language was uttered contemporaneously with the manager’s employment by defendant.
    [Ed. Note. — Eor other cases, see Libel and Slander, Cent. Dig. §§ 365-370, 372, 373; Dec. Dig. <§=124.]
    7. Libel and Slander <®=4 — Elements — “Actual Malice.”
    “Actual malice” includes an unlawful act done in reckless disregard of the rights of another.
    [Ed. Note. — Eor other cases, see Libel .and Slander, Cent. Dig. § 111; Dec. Dig. <§=4.
    Eor other definitions, see Words and Phrases, Second Series, Actual Malice.]
    Appeal from District Court, Caldwell County; Frank S. Roberts, Judge. .
    Action by Sadie Wilkins, by next friend, against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    A. P. Wozencraft and S. P. English, both of Dallas, and Batts & Brooks and I-Iart & Woodward, all of Austin, for appellant. E. B. Coopwood and J. B. Hatchitt, both of Lockhart, and Eiset, McClendon & Shelley, of Austin, for appellee.
   JENKINS, J.

This is a companion case to S. W. Tel. & Tel. Co. v. Ila Long, 183 S. W. 421, this day decided by this court. We adopt our findings of fact in that case for our findings of fact in this case.

Eor reasons stated in our opinion in the former case, we reverse and remand this case. However, the objections to argument of counsel for appellee, as shown by bill of exceptions in the Long Case did arise in this case. Appellant’s tenth assignment of error herein is as to the statement by counsel for appellee in his argument to the jury that: “Slander goes upon wings and is scattered; slander get wings and never stops” — the objection being that there was no evidence of such facts and no pleading to support such fact. For reasons stated in our opinion in the Long Case, we think that the allegation that the slander was uttered in the presence of others is sufficient allegation that it will probably be repeated. In order to warrant counsel in referring to the usual and natural consequences of an act shown by the testimony, it is not necessary to prove such consequences. The jury could take cognizance thereof, as well as any witness who might have been called to prove the same. If testimony was introduced to prove the common experience of mankind, it would add no weight to such fact. Counsel in argument to a jury may properly refer to such experience; for the reason it is presumed to be known as a fact by the jury.

In the concluding portion of our opinion in the Long Case we stated that on account of the length of that opinion, we did not give our reasons for overruling a number of appellant’s assignments of error. In so far as those assignments are identical with appellant’s assignments herein we here briefly state our reasons for overruling the same.

We overrule the assignment of error, in reference to the statement made by appellee in the hall of appellant’s office that she was as pure as Hold’s wife, for the reason that the same was res gestse of that conversation, and also as to Dold’s reply because it tends to show that he meant by the language used in his house to charge appellee and Miss Long with having had carnal intercourse with men.

We overrule appellant’s assignments of error with reference to the action of the court in not sustaining his special exceptions to that portion of appellee’s petition wherein she alleged that she would henceforth be debarred from honorable employment, that she had suffered in her reputation among the people of Lockhart, and that she would henceforth be—

“looked upon with scorn and ridicule, and will always be excluded from the society of all respectable people, not knowing the falsity of said imputations cast upon her as aforesaid.”

The objections to said allegations were that they were vague and uncertain, and the matters and damages alleged were remote and speculative,” etc. We do not think that such damages are uncertain, but, on the contrary, that they are such as might reasonably be anticipated; nor do we see how such consequences could be alleged with greater certainty. In this connection it should be kept in mind that this is not a suit to recover special damages, but only those which the law presumes have resulted, and will result, from uttering the defamatory words. The anticipation of such injuries, being reasonable, would naturally produce that mental anguish, shame, and mortification which appellee alleges she suffered as a consequence of the slander.

Eor the reason that this is not a suit to recover special damages, we overrule the assignments of error as to the failure of the petition to itemize the elements of damages, ■as to what amount was claimed for loss of employment, what amount for loss of society, etc. No special damages are claimed for either of such items, and therefore it was not necessary to specifically allege such, but ap-pellee might have properly, as she did, allege the amount of her damage in the aggregate. Townes on Pleading (2d Ed.) 405; Railway Co. v. Currie, 64 Tex. 85; Railway Co. v. Pettit, 47 Tex. Civ. App. 354, 105 S. W. 43; 5 Ency. Plead. & Ev. 711.

For reasons stated in the Long Case we overrule appellant’s assignment of error in reference to the charge of the court as to. republieation of the slander.

We do not think that the charge of the court is subject to the criticism that it permitted the jury to find in favor of appellee merely for the reason that the language complained of might have been uttered contemporaneously with Dold’s employment by appellant, without regard to whether the same was uttered within the scope of his employment. We quote from said charge as follows:

“And you further find from the testimony * * * that said Dold was then and there the agent of his codefendant, the Southwestern Telegraph & Telephone Company, and was then acting for it within the scope and authority of his employment,” etc.

The objection to the charge of the court defining actual malice is that it refers to another portion of the charge for a definition of actual malice, and that such definition is erroneous. The definition referred to is that actual malice includes “an unlawful act done in reckless disregard of the rights of another.” This is a correct statement of the law. Publishing Co. v. McDavid, 157 S. W. 226.

We overrule the assignments of error with reference to the testimony of the district manager Whatley, for the reason that such testimony tends to prove the authority of Dold in the premises.

Reversed and remanded.
      <§rr>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ig^jEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HALL, J.

text:
    STUDEBAKER HARNESS CO. v. GERLACH MERCANTILE CO.
    (No. 928.)
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 23, 1916.)
    1. Cotjbts ©=>52^Gounty Courts — Jurisdiction — Distbict Cóubts — Appellate Coubts.
    Where Acts 34th Leg. c. 125, § 2, conferring upon the county courts the civil jurisdiction of ordinary county courts, and repealing the act of the Twenty-Third Legislature, divesting such courts of practically all of their jurisdiction save probate jurisdiction, went into force at the time an appeal from justice court was pending-in the district court, the jurisdiction of the district court terminated.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 184-192; Dec. Dig. ©=>52.]
    2. Appeal ahd Ebeob ©=>20 — Jurisdiction oe Lowee C'ouet — Necessity.
    Where the district court had no jurisdiction of an appeal from a justice of the peace, the Court of Civil Appeals has no jurisdiction of a further appeal from the district court, except to reverse and direct the transfer of the cause to the county court having jurisdiction of the appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 81-87; Dec. Dig. ©=>20.)
    Appeal from District Court, Hemphill County; Hugh L. Umphres, Judge.
    Action by the Studebaker Harness Company against the Gerlaeh Mercantile Company. From a judgment of the district court on appeal from a justice of the peace for part of his claim, plaintiff appeals.
    Reversed and remanded, with directions.
    Fisher & Palmer, of Canadian, for appellant. Hoover & Dial and Newton P. Willis, all of Canadian, for appellee.
   HALL, J.

This suit originated in the justice court of Hemphill county; the amount in controversy being $125. Upon appeal to the district court, judgment was .there rendered in favor of appellant against appel-lee in the sum of $50, and costs. Prior to the rendition of the judgment in the district court the Thirty-Fourth Legislature had increased the jurisdiction of the county court of Hemphill county. This act became operative March 22, 1915. Upon the restoration to the county court of its general jurisdiction, the jurisdiction of the district court of the county over the appeal from the justice court terminated. This question has been definitely settled in the case of Turnbow v. J. E. Bryant Co. (Sup.) 181 S. W. 686, and is conclusive of this appeal. In accordance with the practice prescribed by Judge Phillips in that case, the judgment of the district court is reversed, and the cause remanded, with instructions to transfer the case to the county court of Hemphill county. Since the district court had no jurisdiction to determine the controversy, this court acquires no power by reason of the appeal further than to make the order of transfer.

Reversed and remanded, with instructions.