On Motions for Rehearing by Appellant and Appellee. Each party has filed a motion for rehearing. We will first consider that of appellee. Our holding that the several bills of exceptions were entitled to consideration under Dist.Ct.Rule 71a is challenged as being in conflict with the holding in Galveston, H. S. A. Ry. v. Easton, Tex. Civ. App. 257 S.W. 924. We have given that case careful consideration and have concluded that the point was not necessary to the decision, and the judgment can be upheld on the ground that the error, if any, presented by the bill was one which might have been cured by an instruction to the jury, if timely made, which was not done. Application for writ of error was dismissed for want of jurisdiction, and therefore there has been no authoritative pronouncement of the Supreme Court approving this particular holding. The case was decided (1923) prior to the promulgation of Rule 71a, but the principle involved was substantially the same. We do not find that this case has ever been cited on this point, or that the point has been adjudicated in any other case.
We have carefully reconsidered our original holding and have concluded that it is correct. The record does not show when the bills of exception were presented to opposing counsel or the trial judge. It merely shows the dates of approval and filing as quoted in our original opinion. The motion for new trial describes the several bills of exceptions by number, and they were each approved generally and specifically as to number, and without qualification. They were submitted to opposing counsel "and not objected to." They were specifically "found to be correct." The only purpose of the bills was to preserve the several rulings for review by the appellate courts. Approval of these bills was supererogatory if the rulings they related to were not entitled to consideration by reason of their substance not being expressly embodied in the motion for new trial. Their unqualified approval, without objection by appellee's counsel, we think constituted an acquiescence of the judge and counsel of this method of procedure, and made the several bills parts of the record for all purposes regardless of the date of their approval and filing.
Other questions raised by appellee's motion are sufficiently covered in our original opinion.
Our statement that Wills' "lack of co-operation," with which he was charged by some of Utilities' officials, related to his union activities is challenged by appellant. We think this is a fair inference from evidence introduced by Wills. Utilities offered no evidence in the case, and we have no reasonable explanation of the expression in the evidence from Utilities' viewpoint. However, it is not material whether this construction of the expression is correct, since Wills' demotion and discharge do not form the basis of the suit. In this connection appellant asserts that *Page 411 "even the National Labor Relations Board found Wills guilty of lack of co-operation in the performance of his duties on the switch-board" and that the United States Circuit Court of Appeals, 5th Circuit, National Labor Relations Board v. West Texas Utilities Co., 119 F.2d 683, "determined that appellant committed no wrong in removing Wills from the switch-board and from later discharging him." It is not even contended that there is any record showing of these assertions, and manifestly they cannot be considered on this appeal.
We have reached the conclusion that we were in error in holding that the conversation Wills had with Schroeder was sufficient to authorize a finding that the slanderous utterance was ratified, if not in fact authorized, by appellant. The full substance of this conversation is embodied in the following quotation from Wills' testimony.
"I told him (Schroeder) the Chief Engineer (Huss) told me when they paid me `that they were not getting the co-operation out of me they should have had on the job I was working on, and that he had transferred me to the bull gang, and after I had gone to work on the repair gang I claimed to have been injured, and that according to my doctor I was not injured, and that under these circumstances the company did not need me any longer.' He (Schroeder) said `that is right.'"
It is not clear whether this conversation was before or after the slanderous utterances. It does show that Schroeder was cognizant of the grounds upon which Huss asserted that he had transferred Wills to the "bull gang" and later discharged him, and that Schroeder approved of this action. It does not show, however, that Schroeder authorized Huss to make the slanderous statement to anyone, or that he knew of or ratified such statement. We therefore hold that there was no basis in the evidence for a judgment for exemplary damages, and our former opinion is modified to that extent.
Under the fourth subdivision of appellant's brief a number of criticisms are leveled at our opinion as regards our holdings to the effect that the utterance sued upon was slanderous per se. It is contended in substance that in order to be so the words must clearly import, on their face, without innuendo or explanation and independently of the surrounding circumstances, that the complainant is guilty of the slanderous accusation. The correct rule in this regard is embodied in the following terse language from the Restatement of the Law of Torts, Vol. 3:
"§ 614. Determination of Meaning and Defamatory Character of Communication.
"(1) The court determines whether a communication is capable of a defamatory meaning.
"(2) The jury determines whether a communication, capable of a defamatory meaning, was so understood by its recipient."
We especially direct attention to comments b and c under this section. Under the latter the context and extrinsic circumstances surrounding the publication are mentioned as "factors considered by court and jury." To the same effect, though somewhat differently expressed, is the following from 33 Am.Jur., p. 277, § 294:
"Where the language complained of is clear and unambiguous, it is the duty of the court to determine whether it is actionable, either per se or per quod, but where it is ambiguous, of doubtful import, or susceptible of two or more interpretations, its actionability must ordinarily be decided by the jury under appropriate instructions from the court."
There is no distinction between slander per se and per quod as regards the method of determining (1) whether the words charged were in fact published, and (2) the meaning the words conveyed to the recipient. When these questions are determined it then becomes a question of law whether the words are slanderous per se. It is the meaning of the words as thus established which determines their character as slanderous vel non. Our holding under point 6 in appellant's brief that it was a jury question whether the uttered words were in fact slanderous, should be interpreted in the light of the foregoing. It would be more exact to say that it was a jury question whether the words conveyed the asserted meaning to the recipient.
It is further contended under this subdivision that our holding that as to slander per se it is not necessary to prove actual damage as distinguished from nominal damage in order to recover the former is in conflict with our holding in Maass v. Sefcik, 138 S.W.2d 897. There may be some expressions in that opinion which, *Page 412 removed from the context, would warrant the construction appellant seeks to place upon it. But a careful study of the opinion and the authorities cited will demonstrate that this construction is not tenable. In that case the issue of general damages was submitted to the jury under proper instruction, and the answer was "none." The holding was that, since the proof did not establish any damage as a matter of law, the finding of the jury that there was no damage would not be disturbed. In other words, the existence vel non of general damages and the amount thereof are questions of fact. To the same effect are the authorities there cited. Freeman v. Schwenker, Tex. Civ. App. 73 S.W.2d 609; Anderson v. Alcus, Tex. Civ. App.42 S.W.2d 294; Flournoy v. Story, Tex. Civ. App. 37 S.W.2d 272; 27 Tex.Jur., pp. 690-693.
There is probably no firmer established principle in the law of libel and slander than that proof of actual damage is unnecessary in order to recover general damages for a per se slanderous utterance. 27 Tex.Jur., p. 691, where it is said: "Where the words used are libelous or slanderous per se the law presumes actual damages, and in order to recover it is not necessary to prove them." Note 14 cites a long line of supporting Texas cases. Many others might be cited. See also Restatement of Torts, Vol. 3, § 621; 33 Am.Jur., p. 189, § 200. The elements of general damages, which the law presumes or infers, "without proof that they have been incurred * * * include injuries to character or reputation, injuries to feelings, mental suffering or anguish and other like wrongs and injuries incapable of money valuation." They are essentially compensatory and therefore substantial as distinguished from nominal damages. The existence vel non and the amount of compensatory general damages was therefore a proper question for jury determination. The fact that Camfield testified that he believed that Wills was hurt, that Huss' statement to the contrary did not change his opinion, and that that statement didn't lower Wills in his estimation, did not (as contended in appellant's point 7 in its brief) negative as a matter of law the existence of general damages. The testimony was of course pertinent and proper for the jury to consider.
Other matters presented in the motion are covered in our original opinion.
Our former opinion is modified, as above stated, with respect to the issue of exemplary damages. In all other respects both motions are overruled.
Granted in part as to issue of exemplary damages; in all other respects both motions overruled.