Houston Chronicle Pub. v. Quinn , 184 S.W. 669 ( 1916 )


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  • I am of the opinion that the verdict of the jury in this case for actual damages is grossly excessive, and without sufficient evidence to support and maintain the amount awarded. The record shows that the appellant made a prompt retraction through its paper, a Sunday edition, of the libelous article, about appellee, and the fact is undisputed that the appellee, by reason of such article, has suffered no injury to his business, nor any substantial damage to his reputation. After the publication of the O'Fiel article, the record shows that the appellee wrote to appellant the following letter:

    "Beaumont, Tex., August 28, 1914.

    "Mr. Marcellus E. Foster, President Houston Chronicle Publishing Co., Houston, Tex. — Dear Sir: I respectfully call your attention to a publication on page 42 of the Chronicle of Sunday, August 23, 1914, headed `An Explanation,' and signed `Dudley O'Fiel,' `David O'Fiel.'

    "Even a cursory perusal of that publication will certainly convince you that it is libelous. Doubtless you would have published a communication from me controverting the statements contained in that, but I depended upon the sworn testimony in the case, taken from the record of the court, to dispute such uncorroborated accusations, based entirely upon hearsay statements. I am somewhat disappointed, however, to read in the Chronicle of August 27, page 12, a very general report of the facts proven in the habeas corpus hearing, after the specific allegations of lying in wait, etc., published against me in the Chronicle of August 23d. The court stenographer took the testimony, and I respectfully refer you to that of the witnesses, chas, Abbott, John H. Brooks, Officer Bailey and B. E. Quinn, which was corroborated by a number of other witnesses. The publication of which I complain was made in a Sunday Chronicle to give the widest circulation of it in a great *Page 677 metropolitan journal. I believe that you will correct the injury done me in your paper by publishing in Sunday's issue the testimony of the principal witnesses whom I have named herein. The testimony of the many other witnesses was likewise corroborative.

    "Yours very truly, [Signed] B. E. Quinn." In response to this letter, the following letter was sent by the assistant general manager of the Houston Chronicle Company to Mr. Quinn:

    "August 31, 1914.

    "Mr. B. E. Quinn, Beaumont, Tex. — Dear Sir: Your letter of August 28th to Mr. M. E. Foster came to hand Saturday afternoon, August 29th. In his absence from the city on receipt of this letter, we immediately called up the Beaumont correspondent and asked him to get us a copy of the evidence which you outline, and which he forwarded to us by special delivery. In the meantime, we ask you to send a copy of the evidence, or a copy of a newspaper in which it appeared. We are, of course, very glad to publish this evidence, and thank you for your cordial letter.

    "Yours truly, ________

    "Assistant General Manager,

    "Houston Chronicle Publishing Company."

    On August 29, 1914, the Houston Chronicle sent Mr. B. E. Quinn the following telegram, the same also being in response to the letter written by Mr. Quinn on the 28th inst:

    "Houston, Texas, August 29, 1914.

    "Mr. B. E. Quinn, Beaumont, Texas. Please send under special delivery to-night copy of evidence mentioned in your letter to Mr. Foster. If this evidence appeared in any Beaumont paper, just mail us clipping under special delivery. The Houston Chronicle."

    In reply to this telegram, Mr. Quinn sent the following telegram to the Houston Chronicle:

    "Beaumont, Texas, August 29, 1914.

    "The Houston Chronicle, Houston, Texas. Am sending clipping by special delivery, which gives a part of the evidence. Save half a page for me. B. E. Quinn."

    On Sunday, August 30, 1914, the Houston Chronicle Company published Mr. Quinn's testimony, and made a full and complete exoneration of Mr. Quinn. That article was prominently headed "B. E. Quinn Exonerated," and then proceeded as follows:

    `District Judge Orders His Discharge After Hearing on Habeas Corpus Writ at Beaumont.

    "Beaumont, Texas, Aug. 29. — Testimony exonerating B. E. Quinn charged with the killing of John J. O'Fiel, was offered at a writ of habeas corpus hearing before District Judge W. H. Davidson. As a result of the hearing Judge Davidson held Quinn blameless in the encounter and ordered his complete discharge from custody.

    "Quinn was represented by Colonel A. J. Houston, and County Attorney Marvin Scurlock represented the state. No evidence was presented by the state and no argument was made at the conclusion of the testimony. Mr. Scurlock stated that the evidence showed as clear a case of self-defense as could be established, and the court immediately pronounced the verdict: `The defendant is discharged.'

    "The hearing was concluded with the testimony of Quinn in his own behalf. Excepting for questions propounded by his attorney, Quinn began his recital with the incident which caused the first interruption of the friendship between Quinn and Judge O'Fiel and continued with a fairly well connected narrative on down to the shooting and up to the time he relinquished his pistol to Police Officer Bailey in the Abelman harness store. While there was much detail in Quinn's story not heretofore published, his testimony did not vary in the main facts of the shooting affray, save in one particular, where it was stated that Judge O'Fiel backed into the elevator after their brief encounter in the lobby of the Temperance building early in the afternoon. The testimony shows that Quinn backed through the lobby until he got into the elevator and ran the car up to the third floor himself, leaving Judge O'Fiel in the lobby.

    "Start of the Trouble.
    "Beginning at what he described as the starting of the bad feeling between himself and Judge O'Fiel, Mr. Quinn said that it was in June that he found a purchaser for a piece of Sour Lake oil land owned by Judge O'Fiel. The deal went to the extent of the prospective purchaser putting up earnest money. Subsequently the deal fell through and Quinn claimed that a commission was due him for finding the purchaser. At the same time the deal fell through, Quinn said, there was a little difficulty in Judge O'Fiel's office, when, he said, Judge O'Fiel threatened to throw an inkstand at him, and pushed him out of the office. From that time on, Quinn said, O'Fiel did not look at him.

    "Quinn filed suit on July 29th against Judge O'Fiel for the commission.

    "A few days before the tragedy it appeared to Quinn, he said, as though Judge O'Fiel was inclined to speak. On one or two occasions, Quinn said, he had nodded at the judge as they passed.

    "Meet in the Lobby.
    "Coming to the day of the tragedy Quinn said:

    "`About 1 o'clock on that day I met him as I was going to the post office. I said, "How do you do Judge?" and he went on and didn't speak. As I returned from the post office he was leaning up against the entrance there of the Temperance building and I came along about the entrance going to my office, and he called me. He was talking to M. A. McKnight, and when I started to go by, he said, "Say Quinn, come here," and advanced toward me.

    "`I walked toward him and he came along and commenced to curse me and said, "Damn you," and he stuck his finger right up in my face and told me never to speak to him again. I had already taken all I thought I could take from any man; he had already kicked me out of his office, and when he came up and pointed his finger in my face and commenced cursing me on the street I hit at him, and when he ran at me with his knife, I kicked him. In the meantime I had a little knife — I think I have it now — and when I was getting that little knife out he ran at me with his and I kicked him off. I didn't want to hurt him very bad anyway. About that time McKnight grabbed him, but McKnight was a small fellow and couldn't hold him, and he kind of dragged McKnight on with him and came toward me with the knife. I was going to the elevator and had got pretty near back to the elevator and some fellow shoved me back to the elevator. I don't know who the fellow was. There was no boy there with the elevator. I supposed the power was off. By that time Judge O'Fiel ran back with his knife like he was coming into the elevator, and when he did that I kicked him again. Just then some fellow said, "Shut the door and go on up," and I shut the door. I didn't know whether the power was on or off, and I just tried it and went on up to my office.

    "`I think I hit him a back handed lick with my left hand. That was the hand nearest him. I am pretty sure that's how I struck him, because I had a little skin rubbed off my fist. I stepped back to see what he would do. If he was going to fight I could brace myself and get a good solid lick on him. I was backing away all the time.' *Page 678

    "Difficulty with Dave O'Fiel.
    "`About twenty or thirty minutes after that, Dave O'Fiel came down to the office. I was fixing to arrange some papers and I had my side turned to the door. He rushed in and come after me and hit me before I knew he was in the office at all. Then we had it round and round up there. We clinched and fell and rolled around the office there. Three or four fellows came there and pried us apart. I don't think either one of us was hurt. When they pried us apart and I got up this automatic was laying on the floor. I asked a young fellow — I grabbed it as soon as 1 saw it — I said, "Whose gun is this?" He said, "I jerked it out of Dave O'Fiel's pocket." Dave O'Fiel was standing right on the inside of the door; V. A. Collins and Fred Jennigan and I think a man named Sessler that works for the Texas Company, and a half dozen were in there.

    "`A young fellow who was in my office went down on the street and he came back in a little while and said he heard Mr. O'Fiel making some threats down there, and he said he was out trying to get a gun. He said, "You had better look out." I went right straight and put my gun on. I had one lying right there on the desk and I armed myself and I went down on the street. I was fixing to go and see a fellow about selling a lot. I expected to find him at the Weller racket store. I think I had a blue print in my pocket. I started across the street and I happened to notice Abbott and Robichaux standing there and I stopped and shook hands with them. I suppose I was standing there about a minute when O'Fiel advanced with a gun. When I stopped there I stood on the pavement facing Mr. Abbott and Mr. Robichaux. They were standing on the sidewalk. I was facing with my back to the street standing on the pavement in front of the Temperance building. Mr. Abbott looked across the street. I don't know whether he said anything to me or not. I looked around and saw O'Fiel coming across the street. We were just discussing this O'Fiel trouble at the time, and I says — I believe I remarked, Abbott says he thought he remarked, but anyway somebody remarked — "There's O'Fiel now." By that time he had gotten to the middle of the street. He ran his hand into his pocket like that (illustrating) and I says, "Yes, and I believe he has got a gun."'

    "How Shooting Began.
    "`I stepped upon the sidewalk and kept thinking somebody — Everybody seemed to be watching him. I thought some one probably would grab him. I had all the opportunity in the world to pull my gun and shoot, but I just stood there until the man got within fifteen feet of me, and he says, "I have got you now," and pulled his gun out of his pocket. When he did that (I suppose that's how came Abbott to lose part of that shirt that he was telling about), I grabbed Abbott loose and made a bee line for the entrance of that store. When I jumped behind Abbott I was expecting all the time that somebody would grab O'Fiel. I thought if I jumped behind Abbott somebody would stop him, and Abbott twisted around there and broke loose from me. I think he was trying to make a get away. Anyway I got loose from him and made a run for that entrance.'

    "`Well, now, Mr. Quinn, did you attempt to fire, or take out your pistol and fire before you entered that building?' asked Colonel Houston.

    "`I could have fired before the other man got his gun out of his pocket.'

    "`Would it have endangered the life of bystanders on the opposite side of the street?'

    "`Yes, sir, I thought of all that. The first thing I thought was to get out of the way of O'Fiel. I didn't want to have to kill him. Then the next thought, I didn't want to injure any bystanders. I ran in the building.'

    "`What happened then?'

    "`He shot me twice before I got in the building.'

    "`You knew you were shot?'

    " `Yes, sir.'

    "`How did it affect you?'

    "`Well, it took my breath away.'

    " `Did you come near falling?'

    "`Yes, sir. I came near falling. I caught on the door as I ran in. I started over to the right. I got far enough over south of the door so if I did have to shoot I wouldn't shoot out of the door. When he came in he just leveled his gun down at me like that (illustrating) and I shot twice just as quick as I could pull the trigger. I am pretty sure that he shot about the same time I did. His bullet went wild. He never touched me after he got inside. When he came in the door and leveled his gun at me I fired, and I thought he was facing me the way you are facing me, but from the way he was hit he must have turned around like that. He was hit in the side I think.'

    "After the Shooting.
    "`After I shot I stood in my tracks and Dave came in and held his father's head like that, and said, "Oh, father, you are killed," or some remark like that. He looked up and saw me and made a run for me. Well, I didn't feel like I could move and started to shoot. I had the gun cocked when about half a dozen fellows rushed right in behind him. I didn't want to shoot him unless I had to as I knew I was taking desperate chances of hitting somebody else. I thought the best thing to do was to make it to the back door and cover him when he came out. When I got out of the back door I don't think he was over six feet behind me. I stood up against the wall and he ran out. I had a dead bead on him and began to tighten up on my trigger. He stopped and I saw he didn't have a thing in his hand. When he scrambled in at the door he failed to pick up his father's gun. I was sorry for him. I didn't want to kill him. I thought I was killed myself and didn't want to shoot.'

    "`If you had shot, would you have expected to kill him?' asked Colonel Houston.

    "`Oh, yes, I am positive I would have killed him.'

    "`What did you say to him?'

    "`I don't think I said anything. I didn't have time to say anything.

    "`He stopped when he saw that I had the drop on him. He stopped on the step two or three seconds. I could have shot. I had a lot of time to shoot if I wanted to. He backed up and went on back. Two or three fellows grabbed him and I walked into Abelman's store where I could watch both doors and sat down.'

    "`Did you see Officer Bailey when you went in there?'

    " `I didn't see him until Dave backed up. I didn't see Bailey until he came into Abelman's store. He followed me in there and asked me for my gun.'

    "Eyewitnesses Corroborate Defendant.
    "The testimony given by the defendant was corroborated by other witnesses, including Charles W. Abbott, Willis G. Blanton, John M. Brooks and W. H. Mattison. Abbott and Mattison were eyewitnesses to the shooting.

    "An interesting phase of the hearing involved the earlier proceedings in justice court. Owing to the weakened condition of the defendant, suffering from wounds received in the encounter, no testimony was offered at a preliminary hearing, under the law a justice of the peace not being authorized to discharge defendants in such cases. Accordingly an agreed bond of $5,000 was granted and furnished and the writ of habeas corpus sought. The point was then made the defendant not being in actual custody, was not entitled to the writ. Accordingly his attorney had him surrendered by bondsmen, *Page 679 thereby perfecting the application for writ of habeas corpus."

    On the question of damages, the following evidence was introduced:

    Mr. Quinn himself testified:

    "I don't know that I can tell of any one that thinks any less of me on account of the article, which was printed in the Chronicle, and which was sent to them by the two O'Fiel boys; that would be nearly impossible to say. I have testified by deposition in this case also. I testified that so far as I know I stood just as well in Beaumont since this article was published as I did before; that is, so far as I know; couldn't say anything has occurred to show me different. There has nothing occurred in Beaumont to lead me to believe that my position is any different now than it was before."

    Col. Houston, counsel for appellee in habeas corpus proceedings growing out of the killing of John J. O'Fiel, testified in the trial of this cause as follows:

    "I have not testified that Mr. Quinn was wronged by that article in the Chronicle. I stated the article was libelous, but I did not say that I thought he had been injured. * * * could not say that I am acquainted with the sentiment in Beaumont relative to the killing. It would be my opinion, I could state my own opinion, but wouldn't like to state for anybody else. I am not in Beaumont constantly. I have talked with a number of people in Beaumont about it, and they have talked to me, and all the sentiment I have ever met with is in favor of Mr. Quinn — that he was justified. His friends and Judge O'Fiel's friends both lament it, but they didn't hesitate — like myself. I was a good friend of Judge O'Fiel, but when it came to expressing an opinion it was in behalf of Mr. Quinn. * * * As I said a while ago I couldn't say what the sentiment is in Beaumont as to Mr. Quinn, but those I have talked to all acquit Mr. Quinn. I can't recall of one that ever blamed him. But as to the people that lived elsewhere in East Texas, and at other parts, I couldn't say what they thought about it."

    Mr. J. H. Hutchinson testified as follows:

    "I live in Beaumont, and have lived there for about five years. I know the plaintiff in this case only by sight. I am familiar with the transactions that occurred in Beaumont last August, in which Mr. O'Fiel lost his life. Since that time I have had occasion to hear citizens of Beaumont express themselves with reference to the feeling or sentiment towards Mr. Quinn as to his connection with that. Have heard it several times, and the general impression is that he was justified in killing Mr. O'Fiel."

    Mr. Mike Welker testified as follows:

    "I live in Beaumont and have lived there for about 26 years. I am acquainted with the plaintiff in this case, and I am acquainted with the transaction in which Mr. O'Fiel lost his life. I have talked with various citizens in Beaumont the facts of the killing, and have heard them express themselves in reference to Quinn's connection with it, and he has been generally exonerated. I haven't heard anybody condemn him for it. That is the sentiment there. I have no connection with either party to this suit."

    Dr. A. A. Bailey testified as follows:

    "I live in Beaumont and have lived there for about years. I am acquainted with the plaintiff in this case, and am acquainted with the transaction in which O'Fiel lost his life. I have talked with various citizens in Beaumont the facts of the killing and have heard them express themselves with reference to Quinn's connection with it, and he has been generally exonerated, and I haven't heard anybody condemn him for it. That is the sentiment there. I have no connection with either party to the suit. * * * Outside of the immediate vicinity where Mr. Quinn lives, I don't know anything about what the sentiment is."

    There is no evidence of any kind in the record which was introduced to show that Mr. Quinn suffered any damage to his reputation or business in Beaumont, outside of the immediate vicinity of Beaumont, or elsewhere by reason of the libelous article. All of the witnesses, without exception, including Mr. Quinn himself, specifically testified that Quinn suffered no damages to his reputation in Beaumont or elsewhere to their knowledge. The Chronicle gave prompt retraction to the statements made in the libelous article, and printed the same in the Sunday edition, and the retraction had the same place and prominence as did the libelous article. Yet, notwithstanding these facts, the jury awarded a verdict of $5,000 against the defendant, $4,000 actual damages and $1,000 exemplary. It further appears from the record that the appellee, Quinn, while on the witness stand, was permitted to testify that he was shot through the lungs and shoulder, and suffered much pain and agony and to further disclose his injury and confinement in the hospital.

    I agree with the majority opinion of the court in the ruling made on the assignment of error based on the admissibility of this evidence, but still I am firmly convinced that this evidence so played upon the passion, prejudice, and sentiment of the jury that it must have been an actuating factor in the determination of the amount of the verdict. Certainly, the personal injury sustained by plaintiff in the encounter with the decedent O'Fiel, and the consequent suffering and confinement in the hospital, cannot legally be considered as a factor in arriving at the damages sustained by the plaintiff by reason of the printing of the libelous article.

    The law, as I understand it, presumes some damages when an article is libelous per se, as in this case; but this presumption does not overshadow the further salutary rule that the damages awarded must be proportionate and in consonance with the injury suffered. While the law presumes damages in such a case, still, if no substantial damages have been suffered, then only nominal damages should be awarded under such presumption. It is permissible in such cases to inquire into the extent of the injury suffered and to negative any substantial injury. The mere fact that damages will be presumed will not justify an award not based on a theory of just compensation.

    The record in this case clearly shows that there was no intentional wrong in the publication of the article upon which this suit is based, but through an unfortunate mistake or oversight the article found its way into the paper. For the reasons hereinabove *Page 680 stated, I am of the opinion that the verdict for actual damages is excessive, and, instead of being $4,000 for actual damages, that such verdict should be reduced to $1,000 actual damages, and $1,000 exemplary damages, making a total of $2,000, and the appellee required to file a remittitur for $3,000; and, unless he does so, the case should be reversed and remanded for another trial

Document Info

Docket Number: No. 66. [fn*]

Citation Numbers: 184 S.W. 669

Judges: BROOKE, J.

Filed Date: 2/10/1916

Precedential Status: Precedential

Modified Date: 1/13/2023