joined by Justices Walker and Norvell, dissenting.
I dissent.
The allegations of the petition on which respondent went to trial are broad enough to encompass two theories of recovery, viz: (1), a recovery of $10,000 in damages for a personal libel and of $10,000 in damages for a libel of his business; or (2), a recovery of $20,000 in damages for a personal libel — $10,000 for mental anguish suffered from being exposed to public hatred and contempt and $10,000 for financial injury suffered by loss of business.
I agree with the majority’s holding that there is no such legal wrong as libel of a business as such. That holding narrows this case to the second theory of recovery.
The only reason assigned by the majority for their holding that respondent cannot recover is that the published articles do not identify him. The particular language of the majority opinion is that there can be no recovery because “the articles refer to no person who could possibly be identified as the respondent.” The majority thus assume that to be libelous of a person an article must refer expressly to a person. I submit that the assumption is unsound. Defamatory statements with reference to a business which would be libelous if directed at a named individual are undoubtedly libelous of the owner of the business. If it were not so a business could be destroyed and its owner ruined financially by defamatory publications which referred only to the business by name. Let us take an example: a published article states that “the Red Dog Tavern is swindling its customers.” It goes without saying that the Red Dog Tavern cannot swindle anyone and the article therefore necessarily implies that the owner of the tavern, whether the owner be a corporation, a partnership or an individual doing business under an assumed name, is operating the tavern or permitting it to be operated so as to swindle its patrons. The defamatory statement clearly identifies the owner of the business as the one who is guilty of criminal conduct and the rule requiring identification is thus fulfilled.
The majority next say that the naming of others as “operators” of respondent’s business “negative any possibility of *292respondent’s being identified.” Let us look again to our example : a published article states that “the Red Dog Tavern, operated by A. B. against whom criminal charges have been filed, is swindling its customers.” Now let us suppose that the tavern is actually owned by C. D. and his ownership is known to many people in the community who, following the publication, shun his society and cease patronizing the tavern to its utter ruination. Would this court then hold that C. D. could not recover damages for mental anguish and for the loss of business because the article referred to A. B. as the operator and stated that criminal charges had been filed against him? Of course not; and it would not matter whether in referring to A. B. as “operator” the article meant “owner” or “manager,” or that A. B. was in fact the manager.
What has been said here by way of example is not without support in decided cases, although admittedly not a great many such cases are to be found. Wilson v. Sun Pub. Co., 85 Wash. 503, 148 P. 774, was a suit for damages for libel by partners by the name of Wilson and Carle growing out of published articles defamatory of the Epler Cafeteria. It was urged as a defense that “the articles were not libelous in that they did not mention the name of either of the respondents.” The court said: “We find no merit in this claim. * * * The articles did mention the name of that business tvhich was unknown as the ‘Epler Cafe.’ By designating the name' of their business, the article had just as damaging an effect upon the partnership business as if it had mentioned the names of the partners.” Young v. New Mexico Broadcasting Co., 60 N.M. 475, 292 Pac. 2d 776, involved a telecast defamatory of a business owned and operated by partners, one of whom was a silent partner, known as “Day and Night Television Service.” Neither of the partners was named in the telecast. It was contended that because one of the partners was a silent partner “the defamatory statements could not possibly have been directed at him, or so understood by the public.” The court overruled the contention, pointing to testimony that some of those who saw and heard the telecast knew of the silent partner’s connection with the business, and concluding: “In any event, libel of the trade name was libel of the partners, either of whom was entitled to maintain the action.” In Brayton v. Crowell-Collier Pub. Co., 205 F. 2d 644 (U.S.C.A., 2nd Cir.) a recovery of damages for libel was affirmed in favor of one Clyde Brayton because of published articles defamatory of Brayton Flying Service, a corporation. The court pointed out that the plaintiff completely controlled the corporation and that readers of the article “under*293stood it to charge him as well as the Brayton Flying Service with the improper conduct which the article denounced.”
Perhaps closest in point with the facts in the case before us is Naihaus v. Louisiana Weekly Pub. Co., 176 La. 240, 145 So. 527. The published article in that case reported that a Negro named Paul Gilbert and “the manager of the New Orleans Clothing Store participated in a verbal battle over $9.95 balance due on a suit of clothes,” and continued: “According to the police officer, hardly a week goes by but the New Orleans Clothing Store is in a broil with a colored customer. Recently the manager of the place was arrested following a disturbance of a similar nature. The officer * * * expressed the desire that the Louisiana Weekly * * * warn unsuspecting negroes to beware of such sharp-dealing Rampart Street shopkeepers.” Notified by the owner of the New Orleans Clothing Store that he expected to sue, the paper published a second article in which it stated that names of several witnesses had been obtained to vindicate its statement and that it was desirous of having the names of as many people as possible “who have been mistreated by purchasing at the New Orleans Clothing Store.” Naihaus, owner of the store, recovered a judgment based on libel. From the court’s opinion I take the following excerpt:
“It is argued for the appellant that the plaintiff could not have suffered any injury to his name or reputation, because his name was not mentioned in either of the publications. It was well known in the neighborhood, however, that the plaintiff, Carl Naihaus, was the proprietor of the New Orleans Clothing Store, the advertising matter or business cards of which establishment bore his name as proprietor. That is a matter of little or no importance, because the principal injury done by the publications complained of was done to the business, of which the plaintiff was the proprietor.”
The libel made the basis of respondent’s suit is implied from statements contained in the two articles quoted in the majority opinion. Respondent alleged in his petition that “the two articles, taken together, reasonably led the general public to believe that the Texas Body Shop, plaintiff’s business, was a front for a professional car-wrecking ring.” I agree that this is a reasonable implication which a jury would have a right to draw from the following statements of fact contained in the articles: 1. A ring of professional car wreckers has been operating in Austin. 2. Some of the wreckers have been “fronted” by wrecker and body shops. 3. Patrolmen have been suspicious of a local body *294shop for some time. 4. Charges of conspiring with intent to swindle have been tiled on Joe R. Rocha and Alex Hisbrook, “operators of the Texas Body Shop here.”
Respondent was correct, of course, in testifying that he was identified in the articles only by the reference to the Texas Body Shop. That was the only body shop named in the articles, however, and the innuendo is therefore ¡clear that Texas Body Shop was the one of which patrolmen had been suspicious for some time and the one which had been fronting for some of the professional car-wrecking swindlers. To make such a charge against the business by name is to make it in law against the owner, just as was held in the cases analyzed above, and we have been cited to no cases, and have found none, holding to the contrary. It matters not that the articles referred to charges being filed against Rocha and Hisbrook, “operators” of the business. In Naihaus, supra, it was expressly stated that the “manager” of New Orleans Clothing Store had been arrested. The important consideration is that there is testimony in the record before us that people acquainted with respondent and with his ownership of Texas Body Shop were led by the articles to believe that he was involved in illegal activities and as a result his business was wrecked. In other words there is evidence in the record, much of which is detailed in the opinion of the Court of Civil Appeals, whiich entitled respondent to go to the jury on both elements of damages for which he sued.
I respectfully submit that the reason which the majority now give for upholding the instructed verdict against respondent is unsound. Since the majority do not write on the other questions presented, I see no need to do so in this dissent. Suffice it to say that I am convinced that the trial court erred in giving an instructed verdict and I would affirm the judgment of the Court of Civil Appeals.
Opinion delivered November 30, 1960.
Rehearing overruled November 30, 1960.