(dissenting).
I respectfully dissent from a well written opinion which makes a reasoned choice between two conflicting lines of authority. It would unduly extend these remarks to point out the split in authority discussed by Justice Stephenson. It is sufficient to say in this connection that I would follow the numerical majority of the cases and not the Rose Case upon which our decision must rest.
Furthermore, I am of the opinion that plaintiffs failed to prove a cause of action for two reasons: (a) the letter forming the basis of plaintiffs’ suit was one compelled by statute; and (b) the doctrine of Newspapers, Inc. v. Matthews, 161 Tex. 284, 339 S.W.2d 890 (1960), controls in this venue appeal. I will discuss these matters briefly in the order stated.
Our record conclusively establishes that on July 1, 1966, G.M.A.C. filed in the office of the Secretary of State of the State of Texas a Financing Statement which listed the debtor as “Howard Motor Co., Inc.” and described the collateral in broad language from which these words are taken:
“New and used Chevrolet and Oldsmobile and other makes of passenger and com*934mercial motor vehicles of all models
Thereafter, in August, 1969, Howard Motor Company borrowed $13,200 from the Citizens State Bank in Woodville, executing a “SECURITY AGREEMENT — INVENTORY & EQUIPMENT” document which listed the collateral as follows:
“The Collateral of this Security Agreement is Inventory. . . . Without limitation, the term inventory includes Collateral of the following description: Automobiles, trucks, parts and accessories
The G.M.A.C. agreement was filed pursuant to the provisions of the Uniform Commercial Code, § 9.101 et seq. Bank’s agreement was not filed with the Secretary of State until January 5, 1970, three days before the motor company was scheduled to close its doors. On January 9, 1970, at the time G.M.A.C. repossessed the vehicles, the motor company was in default to both the Bank and G.M.A.C. Under these circumstances, G.M.A.C. was required, by the provisions of § 9.504(c), Uniform Commercial Code, to give notice to the Bank of the intended sale. Its letter did no more than was required by the statute. In giving the notice to motor company and Bank, G.M.A.C. followed the explicit language of the statute and our record does not show that any publication was made other than that required by the statute.
Under these circumstances, I am of the opinion that plaintiffs failed, as a matter of law, to prove “that a cause of action for libel in fact accrued” in favor of either of the plaintiffs. Lyle v. Waddle, 144 Tex. 90, 188 S.W.2d 770, 771 (1945). See also the cases collated in 1 McDonald, Texas Civ.Practice (1965 Rev.Vol.), § 4.35, p. 542.
Plaintiffs, laboring under the burden of proving on the venue hearing that a cause of action for libel had in fact accrued, were also faced with the decision of Newspapers, Inc. v. Matthews, supra (339 S.W.2d at p. 893). Although Justice Calvert dissented in Matthews, his comment as to the effect of the holding therein epitomizes the rule of the case. There the present Chief Justice said (at p. 894) :
“I agree with the majority’s holding that there is no such legal wrong as libel of a business as such.”
Howard, the individual plaintiff, was not named in the letter declared upon by the pleading and our record does not disclose the record ownership of the corporate stock of the motor company.
Insofar as motor company is concerned, it had closed its doors and gone out of business some time before the letter was written — and at a time when it was in default upon two financing agreements on file in the Secretary of State’s office covering the same inventory.
Beyond question, Matthews denies the individual plaintiff a cause of action; and, it is difficult, if not impossible to ascertain the existence of a cause of action, in fact, in favor of motor company. In any event, the judgment should be reversed insofar as the individual plaintiff is concerned.
This case should enable counsel for the parties to resolve the conflict presently existing in this field of the law since the Supreme Court has potential jurisdiction even though this is an interlocutory appeal. See Article 1728, V.A.C.S., §§ 1 and 2. As to sub-section 1, see Southwestern Investment Company v. Shipley, 400 S.W.2d 304, 305 (Tex.Sup.1966). As to sub-section 2, see International Harvester Company v. Stedman, 159 Tex. 593, 324 S.W.2d 543, 545 (1959).