Harris v. Thornton's Department Store , 1936 Tex. App. LEXIS 581 ( 1936 )

FUNDERBURK, Justice.

This is a suit by Jack Harris against Thornton’s Department Store to recover damages, actual and exemplary, for alleged slander, assault, and false imprisonment. It was alleged that after plaintiff had purchased some meat and butter at defendant’s store and had proceeded some distance from the store, Welch, defendant’s manager, overtook him and asked in the presence and hearing of numerous persons: “Why didn’t you pay for that merchandise you got in the store?” That after plaintiff’s assertion that he had paid for it, Welch replied: “No you did not. You are going back to the store with me.” That Welch thereupon took him by the arm and forced him to return to the store. It was alleged, in effect, that said words, the manner of speaking them, and the accompanying actions constituted an accusation that plaintiff had been guilty of theft; was a thief and had stolen said merchandise.

The case was submitted to a jury upon special issues. Special issue No. 1 was: “Do you find from a preponderance of the evidence that B. Welch, on or about June 30, 1934, accused plaintiff with the theft of merchandise from defendant’s store?” Each of the other issues was submitted with the direction that the jury do not answer it unless they had answered said special issue No. 1, “Yes.” No issues were submitted or requested relating 'to assault or false imprisonment. The jury’s verdict upon said special issue No. 1 was “No,” and therefore in accordance with the directions given the other special issues were not answered. Upon the verdict so returned, judgment was rendered in favor of the defendant from which the plaintiff has appealed.

The first question for decision is whether, under the circumstances presented by the record, the court erred in refusing to define the term “theft” as • used in said special issue No. 1. The question is attempted to be raised in two ways. Appellant requested and the court refused a (so-called) charge by which had it been given the jury would have been instructed that: “Theft is the fraudulent taking of corporal personal property, belonging to another from his possession, or from the possession of some person holding same for him, without his consent and with the intent then and there to deprive the owner of the value of same and to appropriate it to the use and benefit of the person taking it.” By the first assignment of error it is contended that the court erred in refusing to submit said requested charge. By the fifth assignment of error it is alleged that the court erred in not sustaining appellant’s objection to the submission of said special issue because the court had failed to define the term “theft” as therein used. The point is, therefore, presented under both assignments of error.

We regard the point as being presented by the assignment based upon the action of the court in overruling the objection; and not by the assignment based upon the refusal of the court to give the requested -definition. When a case is submitted upon special issues and it becomes necessary under the provision of R.S. 1925, art. 2189, for the court to give a definition or explanation of legal terms employed in the statement of such issues, and the court wholly fails to do so, then in order to complain of such failure a party is required to make á proper and timely objection and is not required to tender and request the giving of such definition or explanation. Robertson & Mueller v. Holden (Tex.Com.App.) 1 S.W.(2d) 570; Gulf C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Miller v. Fenner, Beane & Ungerleider (Tex.Civ.App.) 89 S.W.(2d) 506, 514.

The word "theft” has a popular or common and ordinary meaning. Under our Penal Code it has a legal or technical meaning. P.C. arts. 1410 and 1412. We find nothing in appellant’s petition which-indicates, or at least indicates with any degree of certainty, that the term was used in the pleadings as having the legal or technical meaning, 'rather than the ordinary or popular meaning. The alleged slanderous words, did not contain the term “theft,” but it was alleged that defendant’s manager by his tone of voice, manner, and -actions accused plaintiff of theft and of being a thief and having stolen the merchandise by asking him the question, “Why didn’t you pay for that merchandise you got in the store ?” and by contradicting plaintiff’s assertion that he had paid for it with the reply, “No you did not. You are going back to the store with me.” We think if such constituted a charge of theft in any sense, that bystanders and witnesses to said transaction would haye understood that it was theft in its ordinary and popular sense. Appellant himself insists that the test is how it would have reasonably been understood by the witnesses to the transaction.

Webster’s International Dictionary defines “theft” thus: (1) “Act of stealing”; (2) “that which is stolen.” In Mathews v. State, 36 Tex. 675, “steal” was held to be synonymous with “theft.” Of the word “steal” Corpus Juris says: “It has been said that in its popular and broader or colloquial sense, it may signify any wrongful and unlawful taking, of person, or of property or any wrongful conversion of the same.” 59 C.J. 1222, § 1. The same authority says that: “As a general rule, to say of a person that he ‘stole,’ ‘is stealing,’ ‘has stolen,’ or otherwise charging him with stealing property belonging to the speaker or to a. third person, without any accompanying language to qualify the offensive import of the charge, is actionable per se; * * * but the word ‘steal’ colloquially is sometimes used where no intention of a crime is intended to be charged.” 36 C.J. 1207, § 139. “Theft, as the word .is commonly used,” said an Ohio court in Great American Mutual Indemnity Co. v. Meyer, 18 Ohio App. 97 (quoted in note 62 C.J. 890), “is a good strong word, big enough to cover a variety of rascalities.” We very strongly incline to the view that if the language charged to the manager of ap-pellee constituted an accusation of theft it did so within the ordinary and popular understanding of the term, rather than its technical or legal meaning.

But whether or not we are correct in this view, we are of the opinion that the failure of the court to give the legal or technical definition of the term was more favorable to appellant than the ap-pellee. Under all the evidence in the case the jury could more certainly and reasonably have found the issue in favor of appellant without the definition than had it been given. If, therefore, there was any error in the refusal of the court to define the term as a legal and technical term it was affirmatively harmless.

It is next insisted that the court erred in refusing to give his requested instruction as follows: “In considering the meaning of words uttered, as to whether or not they were such as to accuse the plaintiff of theft, you are instructed that such meaning does not depend upon the intent of the speaker but it is what they would mean to the ordinary hearer and in arriving at their meaning the jury may consider them in the light of all the facts and surrounding circumstances at the time they were uttered.” This does not purport to define or explain the meaning of any word or term used in the statement of the special issues submitted. It is a special charge or instruction upon the law of the case, not proper to be given, in a case submitted to the jury upon special issues. See long list of authorities cited in Standard v. Texas & P. C. & O. Co. (Tex.Civ.App.) 47 S.W.(2d) 443, and the following additional authorities: Wichita Valley R. Co. v. Anderson (Tex.Civ.App.) 48 S.W.(2d) 361; Texas & P. R. Co. v. Phillips (Tex.Civ.App.) 56 S.W.(2d) 210; Liberty Mut. Ins. Co. v. Boggs (Tex.Civ.App.) 66 S.W.(2d) 787; Lewis v. Halbert (Tex.Civ.App.) 67 S.W.(2d) 430; Texas & P. R. Co. v. Foster (Tex.Civ.App.) 58 S.W.(2d) 557; Wichita Valley R. Co. v. Brown (Tex.Civ.App.) 274 S.W. 305; Texas & P. R. Co. v. Perkins (Tex.Com.App.) 48 S.W.(2d) 449; Texas & P. R. Co. v. Perkins (Tex.Civ.App.) 29 S.W.(2d) 835; Maryland Cas. Co. v. McGill (Tex.Civ.App.) 69 S.W.(2d) 158; Mahone v. Bowman (Tex. Civ.App.) 70 S.W.(2d) 323; Texas & P. R. Co. v. Rampy (Tex.Civ.App.) 71 S.W.(2d) 387; Tallabas v. Wing Chong (Tex.Civ.App.) 72 S.W.(2d) 636; Iowa Mfg. Co. v. Baldwin (Tex.Civ.App.) 82 S.W.(2d) 994; Williams v. Rodocker (Tex.Civ.App.) 84 S.W.(2d) 556.

The preliminary observations upon the first point above discussed are likewise applicable to this one. The matter sought to be brought to the attention of the jury related to special issue No. 1 which, being given, it was necessary that its deficiencies be called to the attention of the court by an objection and not by request for an issue or instruction to be given.

It is next contended, in substance or effect, that the evidence was conflicting as to whether defendant's manager, Welch, spoke or uttered the alleged slanderous words, and that an issue submitting that question should have been given to the jury. Undoubtedly, that was an issue which plaintiff had the burden of establishing. “Failure to submit an issue,” says the statute, “shall not be deemed a ground for reversal of the judgment unless its submission has been requested in writing by the party complaining of the judgment.” R.S.1925, art. 2190. When by this provision a party is under the necessity of requesting a special issue, in order to avoid a waiver of error in the action of the court, in failing to submit it, he is governed by the provisions of R.S.1925, art. 2188. Walker v. Hirsch Cooperage Co. (Tex.Com.App.) 236 S.W. 710; Lamar v. Panhandle & S. F. R. Co. (Tex.Com.App.) 248 S.W. 34; St. Louis Southwestern R. Co. v. Hill Bros. (Tex.Civ.App.) 80 S.W.(2d) 432; Largent v. Etheridge (Tex.Civ.App.) 13 S.W.(2d) 974. • To comply therewith, he must, therefore, accompany the request with a correctly stated issue in such form that the court can make his action upon such request a matter of record simply by indorsing thereon “given” or “refused,” as the case may be. Same authorities, Miller v. Fenner, Beane & Ungerleider, supra. The record in this case shows no such requested issue. No assignment of error has for its subject-matter the refusal of the court to give any such requested issue.

The point is presented, if at all, by an assignment alleging error in the action of the court “in overruling and not sustaining” an objection to the special issues, denominated “court's main charge,” on the ground, among others, “Because the court fails to submit to the jury the issue of what was said by Welch to plaintiff as set out in plaintiff’s pleading and as testified to by the witness Payne and plaintiff Harris.” Obviously the objection does not refer to any particular issue submitted, nor point out any incorrectness therein. We have recently had occasion to consider the circumstances under which objections are required and those under which requests for the giving of charges or submission of special issues are required, and concluded, upon the authorities cited, that: “When * * * a request for the submission of an. issue is required as support for an assignment of error complaining of the failure or refusal of the court to submit an issue not attempted to be submitted, an objection to the failure or refusal of the court to submit it will not dispense with the necessity that the party charged with • establishing such issue shall make due and timely request for such submission." Miller v. Fenner, Beane & Ungerleider, supra.

We are here dealing with a situation to which that proposition is believed to apply, and we accordingly hold that plaintiff by his failure to request the submission of the issue, and upon the refusal of the court to give it, to assign error based upon such action, has waived the error, if any, in the failure of the court to submit said issue. This conclusion not only disposes of the point now under consideration, but has a controlling effect upon the disposition of the appeal, as will hereafter appear.

A number of appellant’s other contentions, such as the one insisting that the court erred in submitting an issue inquir-big whether Welch was acting within the course of his employment, and the issue with reference to damages, we find it unnecessary ,to determine because the questions are presented with reference to issues that were not answered by the jury, and in no way enter into or affect the judgment that was rendered.

Another point made is that the court erred in the submission of all the special issues, other than said special issue No. 1, by directing the jury to answer each of them only in the event that they had answered special issue No. 1 “Yes.” The negative answer of the jury to special issue No. 1 was completely determinative, in itself, of the judgment to be rendered, regardless of how the jury might have answered any other special issue submitted. Under such circumstances we think it is the settled and approved practice for the court to direct the jury to answer other issues only if they find such completely determinative issues in a certain way. Upon this point we shall content ourselves with a citation of authorities which we think support the correctness of the practice. Standard Acc. Co. v. Williams (Tex.Civ.App.) 4 S.W.(2d) 1023; Traders’ & General Ins. Co. v. Nunley (Tex.Civ.App.) 82 S.W.(2d) 715; Northern Texas Traction Co. v. Bryan (Tex.Civ.App.) 299 S.W. 325; Western Ind. Co. v. Corder (Tex.Civ.App.) 249 S.W. 316; Ineeda Laundry v. Newton (Tex.Civ.App.) 33 S.W.(2d) 208; Millerman v. Houston & T. C. R. Co. (Tex.Civ.App.) 27 S.W.(2d) 897; Standard v. Texas P. C. & O. Co., 47 S.W.(2d) 443; Traders & Gen. Ins. Co. v. Babb (Tex.Civ. App.) 83 S.W.(2d) 778; Texas Emp. Ins. Ass’n v. Hilderbrandt (Tex.Civ.App.) 80 S.W.(2d) 1031; Perkins v. Nevill (Tex.Com.App.) 58 S.W.(2d) 50; San Antonio Pub. Ser. Co. v. Murray (Tex.Civ.App.) 59 S.W.(2d) 851; Stedman Fruit Co. v. Smith (Tex.Civ.App.) 45 S.W.(2d) 804; Texas Emp. Ins. Ass’n v. Heuer (Tex.Civ.App.) 10 S.W.(2d) 756; C. E. Parks Grain Co. v. Gwynn (Tex.Civ.App.) 265 S.W. 1071; Young v. Harvison (Tex.Civ.App.) 283 S.W. 687; Northcutt v. Magnolia Pet. Co. (Tex.Civ.App.) 90 S.W.(2d) 632.

The next question relates to the argument of counsel. Counsel for defendant asked the witness Payne, who claimed to have been present and heard the alleged slanderous words, if he was not in jail at Anson on that day. He answered that he was not. He was then asked, “When were you in jail?” Objection to the answering of this question was made and sustained. Counsel was permitted to repeat the question whether witness was in jail on the particular day, and he reiterated that he was not. Defendant made no effort to show by any further testimony that said witness was in jail at the time he claims to have been present in Abilene. In argument of the case, counsel for plaintiff criticised counsel for defendant in asking the question whether the witness was in jail. In the reply argument, counsel for the defendant said: “Judge Overshiner criticised me for asking the witness Payne whether or not he was in jail at Anson on June 30th the day this transaction occurred. Well, in replying I want to say that if it had not been objected to and if the court had not sustained the objection and had let me open this question up, I would have showed you where Payne was on the 30th day of June, 1934.” The record does not show that the court in any manner prevented counsel from showing where Payne was on the 30th day of June, 1934. Under the circumstances we are not prepared to say that Judge Overshiner was not justified in, crit-icising counsel for asking the question whether the witness was in jail. The argument of counsel was an unmistakable intimation to the jury that he, but for his being prevented by the court, could have shown that the witness was in jail, or at least in some place tending to detract from his credit as a witness. Objection to the argument was overruled. We think the argument was of a character calculated to prejudice the plaintiff and must be presumed to have done so, unless the record otherwise reflects that under the particular circumstances of the case it was harmless.

We overrule the contention that if the alleged slanderous words were proved to have been uttered that they as a matter of law amounted to an accusation of theft.

We likewise overrule the contention that the evidence was insufficient to support the jury’s finding upon special issue No. 1. There was a sharp conflict in the evidence as to whether the manager, Welch, spoke the alleged slanderous words. According to his testimony he did not. Special issue No. 1 was so'stated that if the jury believed the testimony of Welch, then they could reasonaüly have made no other answer to the special issue.

The error in the argument of counsel would ordinarily require a reversal of the case. However, in considering appellant’s assignment under which the contention was made that the court erred in not submitting an issue calling for a finding of whether Welch, the manager, uttered the alleged slanderous words, it clearly appears that that issue was one raised by the evidence. It was an issue without the finding of which in favor of the plaintiff no judgment for him could be rendered. Under our conclusion stated, the issue was waived as the basis for any judgment for plaintiff. That is a question upon which the improper argument of counsel could have had no bearing. AVe are therefore of the opinion that the record shows affirmatively that the improper argument of counsel was immaterial upon the question of the correctness of the judgment, and therefore harmless. It is our conclusion that the judgment of the court below should be affirmed, and it is so ordered.