Forke v. Homann , 14 Tex. Civ. App. 670 ( 1896 )

Statement of Case. — This is a suit for libel by appellee against appellant for actual and exemplary damages resulting from the libelous publication. Verdict and judgment was in appellee's favor for twenty-five dollars, actual damages.

The following facts are shown by the record: On the 13th day of March, 1895, Otto Forke, appellant, wrote and caused to be published in the New Braunfels Zeitung, a newspaper published and circulated in Comal County, Texas, the following article: "Take care, you voters! Vote only for such candidates for school trustees as are on the people's ticket, then you can be assured that in the future your portion of the county available school fund will not again melt away $37.15, on so short a distance, as from the hands of the father-in-law to the hands of the son-in-law, and be compelled to content yourselves with the thin excuse that it was but a small mistake. Otto Forke."

Said newspaper had a circulation of about six hundred in the town of New Braunfels and about twelve hundred in Comal County.

The appellee at that time, before and since, resided in New Braunfels, Comal County, and was at that time school treasurer of New Braunfels, and had the custody of the school monies belonging to said town, and was then a candidate for the office of school trustee.

Ad. Giesecke was then the County Judge and superintendent of public schools in Comal County, and appellee was then and is now his son-in-law.

There is evidence that warrants the conclusion that no others but Judge Giesecke and appellee, as father-in-law and son-in-law, in Comal County, handled school monies at that time, and the inference that arises from the facts in evidence is that the reading public in Comal County understood the libelous publication to refer to appellee and Judge Giesecke. The appellee was not then a candidate on the people's ticket, but was a candidate for election as school trustee.

Previous to this the Commissioners Court of Comal County, in apportioning the school fund of the county, made a mistake of $37.20 in the amount of such fund that was due the city of New Braunfels. This mistake was owing to an error in calculation by Judge Giesecke as County Judge, and was thereafter shortly discovered by him, and he called the attention of the Commissioners Court thereto and the mistake was corrected. There was no misapplication or embezzlement of this sum by the County Judge or the appellee, and the conclusion is warranted that the appellant could by reasonable inquiry have learned the truth as to the item of $37.15, and that the appellee was not guilty of any act that was calculated to induce a person of ordinary prudence to believe that he had embezzled or misapplied said sum of $37.15. And we find, in this connection, that so much of said publication that implies a charge of embezzlement or misapplication of this sum by appellee or Judge Giesecke was false and untrue.

The facts warrant the finding that appellee, by reason of the publication, suffered distress of mind, shame and humiliation.

Opinion. — The first question that arises is whether the publication is libelous per se. The appellant contends that it is not, and as no special damages were alleged his demurrer raising this question should have been sustained.

The petition, by averments of innuendoes, explains the publication as applying to appellee and that it means that he had embezzled or misapplied public school funds to the amount of $37.15, and that in this way it was understood by the readers of the paper in Comal County. This construction is consistent with the language of the publication. It implies that a portion of the school fund which passed through the hands of the father-in-law — Judge Giesecke — and the son-in-law — appellee — has not been accounted for by them, and that they disguised their failure to account for this sum under the false pretense that a mistake of some sort was made concerning it. Those reading this article would infer that the father-in-law and son-in-law were entitled to handle the school funds in some official capacity, and that they had misapplied or appropriated thirty-seven dollars and fifteen cents of such fund, and undertook to account for it under the false excuse that a mistake had occurred. Those reading the publication who were acquainted with the relationship existing between the plaintiff and Judge Giesecke and of the official positions held by each would readily construe the publication as referring to them officially. 13 Am. Eng. Ency. of Law, 391 to 393.

Giving this construction to the publication, the language is libelous and actionable per se in two aspects, in that it tends to charge the appellee with a misapplication of public funds, which is a crime in our law — 13 Am. Eng. Ency. of Law, 349 — and imputes to him a want of integrity as an official. 13 Am. Eng. Ency. of Law, 355 and 363. A libel, to be actionable per se, need not in express terms charge a crime. If the words employed consist of a statement which would imply that an offense was committed, and could be so understood by those reading the publication, it is per se libelous. Belo v. Fuller, 84 Tex. 453 [84 Tex. 453]; Zeliff v. Jennings, 61 Tex. 466.

If this is the proper construction of the libel, general damages were recoverable, without allegation or proof of special damages. 13 Am. Eng. Ency. of Law, 434; Zeliff v. Jennings,61 Tex. 466. And in this connection it is proper to say that wounded feelings and mental suffering may be considered as elements of damages. Zeliff v. Jennings, 61 Tex. 467; Rea v. Harrington, 58 Vermont, 188 and 189; Belo v. Fuller, 84 Tex. 453 [84 Tex. 453]. This much is said because there seems to be some question raised as to the right to recover for mental suffering in this case. In all cases of libel where an actionable crime is charged, the law will infer some injury to the reputation and character of the libellee, and without proof will imply that some damages resulted from the publication. The damages sustained in this respect are compensatory in character, and in connection therewith may be considered those that result from injured feelings and mental suffering. Belo v. Fuller, 84 Tex. 453.

There is no merit in the point raised in the fifth assignment of error. The plaintiff alleged that the publication was defamatory and that it referred to him and that it was false. It was permissible under these averments for him to prove that he was not a candidate on the people's ticket. But, however this may be, the assignment of error does not complain that the court overruled a demurrer to the petition on the ground that it was not alleged that the plaintiff was not a candidate on the people's ticket, but complains of evidence admitted to the effect that plaintiff was not a candidate on the people's ticket, for the reason that this fact was not alleged. The plaintiff's petition was good when tested by a general demurrer, and if defective in the respect noticed it should have been questioned by a special exception. And this not being done, the defendant cannot test the merits of the petition by objections to the evidence, except in a case where it is essential that a fact must be pleaded in order to show a cause of action. The evidence objected to is not proof of a fact which was necessary to be established in order for the plaintiff to recover.

Appellant contends that as the plaintiff was a candidate for election to a public office the publication was privileged. Reprehensible conduct of a public officer or one who is a candidate for a public office is subject to criticism, if made in good faith for the purpose of questioning his fitness for office, but when a public officer is falsely charged with a crime, or the defamatory words falsely impute a dereliction of duty and falsely defame his character and standing as an official, the publication extends beyond the domain of privileged communication, and is as actionable and as reprehensible as would be any publication directed towards him as an individual which accuses him of crime. 13 Am. Eng. Ency. of Law, 419, 421.

Appellant's fourth assignment of error complains of the ruling of the court sustaining demurrers to that part of defendant's answer which asks for damages against plaintiff on the ground that plaintiff was actuated by malice in bringing his suit and that the plaintiff had maliciously instituted a criminal prosecution, which was at an end, against defendant for the same libel. The counter-claim which arose from the prosecution of the criminal action is not a proper matter of offset to the suit for libel, nor can it be pleaded in reconvention, as it did not grow out of the prosecution of the civil suit. The counter claim for damages based upon the alleged malicious prosecution of the civil suit could not be urged in reconvention, because of the well settled principle that an action for malicious prosecution will not lie unless the prosecution complained of has ended favorably to the party seeking the relief. 14 Am. Eng. Ency. of Law, 28, 32, 42. The civil prosecution was pending when the counter-plea was interposed and, as we are informed by the judgment rendered, terminated favorably to the plaintiff below and appellee here. Consequently this result presents an insuperable objection to the action asserted by the counter-claim.

The evidence of the experts who examined the books of appellee which showed the condition of the funds in his official keeping was admissible. They were public records and were open to examination by appellant, Forke, and they were admissible upon the ground that he could have from an examination of these records ascertained that the item of $37.15 was accounted for, and making the publication in the face of this record was evidence that could be considered by the jury as showing a want of probable cause in publishing the libel and that he did so in reckless disregard of the truth, which could have been ascertained by reasonable inquiry. This evidence was also admissible as tending to disprove the crime which was charged to the appellee. These experts were appointed to examine into the official records and books of appellee as treasurer of the school funds, and as the result of this examination the books were found to be correctly kept. The books of appellee showing that all the items and sums which came into his hands officially were properly entered and accounted for were proper to be considered by the jury as evidence showing a performance of his official duties and as negativing the misapplication of the public funds.

The evidence of witness Giesecke stating what effect the publication of the libel had upon appellee with reference to his conduct was admissible. If the witness knew that appellee's conduct in certain particulars was traceable to the publication of the libel, he could testify thereto.

In response to those assignments of errors that complain of the charge of the court and the refusal to give certain charges, it may be said that some of the points raised are in effect disposed of by what has been previously said construing the libel and the effect to be given it, and as to the others they may be disposed of by a few general observations which are pertinent. If the libelous matter is actionable per se, malice may be inferred, without direct proof thereof, — 13 Am. and Eng. Ency. of Law, 426, — and special damages need not be alleged, — 13 Am. and Eng. Ency. of Law, 435, — and if the defamatory words charge an actionable crime and there be an entire absence of malice in fact, actual damages may nevertheless be recovered. Belo v. Fuller, 84 Tex. 453.

So far as the issue of malice may have been involved in that phase of the case which claims exemplary damages, it is eliminated by the verdict of the jury, which expressly limits the recovery to actual damages.

There was no error in the charges complained of, nor in refusing those requested by appellant.

The verdict and judgment are supported by the facts, and there was no error in permitting the verdict to be corrected by the jury, nor were they influenced by the remark of the court as complained of in the twenty-second assignment.

Judgment affirmed.

Writ of error refused.