Newspapers Incorporated v. Stanley B. Matthews, 161 Tex. 284

Mr. Justice Hamilton delivered the opinion of the Court. The respondent’s motion for rehearing in this cause was duly considered, and is overruled. Our original opinion in this cause is, however, withdrawn, and the following substituted therefor: The respondent, Stanley B. Matthews, sued the petitioner, Newspapers, Inc., for damages for libel to himself personally and to his business, alleged to have been published in the Austin American and the Austin Statesman, two newspapers published by petitioner.

At the close of the evidence for plaintiff, respondent here, on motion of defendant, petitioner here, the trial court granted an instructed verdict for petitioner. Respondent was the owner of an automobile repair business conducted under the name of Texas Body Shop. Respondent had acquired this business, known as the Texas Body Shop, from Joe Rocha and Alex Hisbrook about two months prior to the publication of the articles complained of. Both of said former owners remained on as employees of respondent, working as metal workers and laborers, doing the same kind of work they did as owners.

Darrell Cluck, who was manager for Joe Rocha and Alex Hisbrook, remained as manager for respondent. Although respondent continued to use the assumed name of Texas Body Shop, he failed to file an assumed name certificate as provided for in

Article 5924, V.A.C.S. In an edition of the Austin Statesman of July-27, 1953, there appeared an

article asserting that an automobile wrecking racket had been uncovered. The car wreckers reportedly were wrecking an individual’s car for a fee of $50.00, then bidding on the salvage and estimating the original value concerning insurance loss. The

article in full is quoted, as follows: “AUTOMOBILE WRECKERS UNCOVERED “Racket Operated to Get Insurance “A professional car wrecking ring was busted wide open here Monday by state highway patrolmen who have long suspected certain citizens of pushing their automobiles off cliffs in an effort to cash in on insurance claims. “The car wreckers, it is said, will ‘take care’ of your car for $50. “Many being in the wrecker and junk business, they’re in a fine position to bid on the salvage and estimate the original value concerning insurance loss. “TWO HIGHWAY PATROLMEN — O. E. Lusk and W. D.

Wilson — uncovered the shady operation during the past week. They’ve been working on the case for several months, and Lusk said Monday that ‘this is only the beginning.’ “Charges have been filed on two body shop operators in connection with the case. An examining trial is scheduled for 2 p.m. Tuesday in Justice of the Peace Frank McBee’s Court. “ ‘We have information regarding at least five more such incidents during the past few months,’ said Lusk. ‘It’s something we’ve long suspected but haven’t been able to prove.

There’ll be many more charges due in the near future.’ “The patrolmen got their big break last week when they were called in to investigate an ‘accident on the Old Manor Road near the Walnut Creek Bridge. “There they found a 1951 Plymouth almost totally demolished. ‘All the physical facts and evidence pointed to the fact that the vehicle had been intentionally wrecked,’ said Lusk. “The patrolmen talked to the car’s owner who is stationed at Gary Air Force Base in San Marcos.

Further questioning indicated he might not be telling the truth. “Patrolmen said he underwent a polygraph test at the State Highway Department offices and subsequently broke down under questioning. Officers said he signed a confession stating he had entered into an agreement with the two body shop operators whereby they would wreck his car for $50. “DURING THE PAST two months there have been cases wherein cars have rolled down steep cliffs and the drivers escaped uninjured from the demolished vehicles.

Other cars have slipped off embankments, and there were several instances where autos caught fire and burned. “Patrolmen said they had been suspicious of a local body shop for some time. Even the manager’s car had rolled off a cliff on the Marble Falls highway just last month. He was uninjured, but the automobile — a 1949 Packard — was a total loss. “And still another case involved a Bergstrom airman’s car in which the driver had left the vehicle to fix a flat tire.

He explained that the vehicle rolled down a nearby cliff while he tried to change tires.” The following morning the Austin American carried a related article.

It also is quoted in full, as follows: “HIGHWAY PATROL UNCOVERS PROFESSIONAL CAR-WRECKING RING “A ring of professional car wreckers — who will guarantee to leave your vehicle in an advanced state of disrepair for a $50 fee — was uncovered in Austin Monday, State Highway Patrolmen said. “The car wreckers who have been operating in this area, patrolmen said, have been pushing autos off cliffs, setting them on fire and otherwise destroying them to help the owners collect on their insurance claims. “The two highway patrolmen who broke the case — O. E. Lusk, and W. D.

Wilson — said some of the wreckers have been ‘fronted’ by wrecker and body shops. By doing this, they pointed out, they were in a good position to estimate the wrecked car’s original value for the insurance companies. “Lusk said: ‘This is only the beginning. We expect more arrests and plenty of confessions within the next few days. We’ve been on this for a long time.’ “Charges of conspiring with intent to swindle were filed in Justice of the Peace Frank McBee’s Court last week on two Austin men in connection with the case.

More charges are due this week, and an examining trial is due Tuesday at 2 p.m. “Filed on in McBee’s Court were Joe R. Rocha, and Alex Hisbrook, operators of the Texas Body Shop here. “ We have plenty of information regarding at least five more such incidents over the past two months,’ Lusk said. “I ‘It’s something we’ve long suspected but haven’t been able to prove.’ “The patrolmen believe they can prove their point now. “The patrolmen last week became suspicious by the way a 1951 Plymouth had been demolished after a fall from a cliff.

They questioned a Gary Air Force Base airman who broke down and made a confession, the patrolmen said. The patrolmen said a number of cars during the past few months hav etaken mysterious plunges off cliffs, into lakes, down embankments and into abutments. The drivers have always escaped unijured.” The Court of Civil Appeals, in reversing the judgment of the trial court and remanding the cause, said that there was sufficient evidence to raise a jury question as to whether the publications were aimed at appellant and his business. 319 S.W. 2d 177,178.

The points of error assigned by petitioner raise two issues which we consider to be of merit in reaching our decision. One of the issues raised by petitioner is that libel or defamation of a business is not actionable in this jurisdiction. The other issue concerns the specificness of identification required to maintain an action for libel. We can find no authority for a right of action for defamation of a business disassociated and distinct from the defamation of its owner.

Article 5430, Y.A.C.S., reads: “Art. 5430.

Definitions. “A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.

Acts 1901, p. 30.” From this definition it can be seen that the very wording of the libel statute precludes its application to a business. It does not alter the situation that a corporation may be libeled, Bell Publishing Co. v. Garret Engineering Co., 141 Texas 51, 170 S.W. 2d. 197, Restatement of the Law of Torts, Vol. 3, Sec. 561, or that a partnership may be libeled. In both instances the defamation is of the owner of the business and not of the business itself. Libelous writings, by innuendo; may tend to injure the reputation of an owner and to expose him to public hatred.

Such writings may also tend to injure the owner financially through a loss or reduction in business. In each case, recovery of the two elements of damages will be for defamation of the owner, whether the owner be an individual, partnership or a corporation. We hold as a matter of law that Matthews cannot recover for libel to his person in this instance for the reason that the articles refer to no person who could possibly be identified as the respondent. The respondent Matthews was not named in either of the articles.

The rule in this and other jurisdictions is that the asserted libel must refer to some ascertained or ascertainable person, and that person must be the plaintiff. In 33 American Jurisprudence, 101, “Libel and Slander,” Sec. 89, the rule is stated as follows: ■ “In order to entitle one to maintain an action for an alleged defamatory statement, it must appear that he is the person with reference to whom the statement was made.” The above rule has been consistently followed by the courts of this state. See Harris v. Santa Fe Townsite Co., 125 S.W. 77, writ refused; McCormick v.

Houston Printing Co., 174 S.W. 853, writ refused; Express Publishing Co. v. Southwell, 295 S.W. 180, writ refused; Carter Publications, Inc. v. Fleming, 129 Texas 667, 106 S.W. 2d 672; Pridemore v, San Angelo Standard, 146 S.W. 2d 1048, writ dismissed, judgment correct. It is likewise true; however, that it is not necessary that the individual referred to be named if those who knew and were acquainted with the plaintiff understand from reading the publication that it referred to plaintiff. Gibler v. Houston Post Co., 310 S.W. 2d 377, refused n.r.e.; Red River Valley Publishing Co. v.

Bridges, 254 S.W. 2d 854, refused n.r.e. Respondent relies solely on one statement in the second

article for his identification with said articles, that is, “filed on in McBee’s court were Joe R. Rocha, and Alex Hisbrook, operators of the Texas Body Shop here.” The persons referred to, however, are named and negative any possibility of respondent’s being identifed. The only other person referred to who could have any connection with the Texas Body Shop1 was the manager of a local body shop. He was positively identified as one other than the respondent Matthews.

Respondent contends that since the articles make the statement that some of the body shops have fronted for car wreckers and since the Texas Body Shop was mentioned, it is implied that the Texas Body Shop' was a front for car wreckers, and that he, the respondent, was operating the shop as a front for car wreckers, and thereby was libeled. The articles in substance tell the following story: Within the last few months a number of cars have taken mysterious plunges off cliffs into lakes, down embankments and into abutments. The drivers have always escaped uninjured.

Officers have suspected a professional ring of car wreckers, who wreck cars for the owners so they can collect their insurance. Officers said that some body shops have fronted for car wreckers. Charges have been filed on two body shop operators in connection with the case. The two body shop operators are Joe R. Rocha and Alex Hisbrook. They are operators of the Texas Body Shop. Respondent contends that this presents the implication that he, Matthews, as true owner and operator of the Texas Body Shop, was operating the shop as a front for Rocha and Hisbrook in their illicit activities.

Such claimed implication is not consistent with the plain language of the articles^ Since the articles explicitly name Rocha and Hisbrook as the operators of the shop, the full import of the articles point to them as the operators of 'the shop as a front for their activities, rather than to Sanley Matthews. The settled law requires that the false statement point to the plaintiff and to no one else. For the reasons stated, we conclude that the trial court was correct in instructing a verdict for petitioner at the close of plaintiff’s case.

We therefore reverse the judgment of the Court of Civil Appeals and affirm that of the trial court. Opinion delivered October 19, 1960.