McDavid v. Houston Chronicle Printing , 146 S.W. 252 ( 1912 )

We now have in this state a statute (Laws 27th Leg. c. 26) which defines what shall constitute a libel, which statute is copied in full in the opinion of this court in Walker v. Light Publishing Co.,30 Tex. Civ. App. 165, 70 S.W. 555. By the first section of that statute it is declared that "a libel is a defamation expressed in printing or writing, or by signs and pictures or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule or financial injury, or to impeach the honesty, integrity or virtue or reputation of any one, or to publish the natural defects of any one, and thereby expose such person to public hatred, ridicule or financial injury." The second section declares that the truth of the matter complained of shall constitute a defense to the action, and that the defendant may plead and prove the circumstances and intentions under which the libelous publication was made and any public apology, correction or retraction in mitigation of exemplary or punitive damages. The third section prescribes what shall be deemed privileged, and therefore not the basis of an action for libel, without proof of actual malice. The portion thereof which is pertinent to this case authorizes a fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, or any other official proceeding authorized by law in the administration of the law. But if it be shown that such publication though fair, true and impartial, was maliciously made, then the publication is not privileged.

In the Walker Case above cited it was held by this court, and we so hold in this case, that, when a libel is charged within the purview of the statute, it is not necessary for the petition to allege any special damage. We are of opinion that the effect of the statute under consideration is to abolish the distinction which exists at common law between libel per se and libel otherwise, in so far as the right of recovery is concerned. Of course, in a certain sense, the class of things which are said to constitute libel per se at common law may be said to be more libelous than certain other things which constitute libel within the purview of the statute; but the latter, as well as the former, constitute libel, and this is true because the statute so declares.

It is strenuously contended by counsel for appellee that the petition stated no cause of action, not only because of the failure to allege special damage, but for the reason and because the publications complained of contained nothing that reflected upon any one, and, if they contained any libelous statements, they contained nothing to show that such statements had reference to either of the plaintiffs. While it is true that the first publication did not mention the name of any person, still we are of opinion that it tended to injure the reputation of Mrs. McDavid, if the two publications together, considered in connection with all the other facts alleged, sufficiently identified her as the mother referred to in the first publication. If the innuendo and other averments in the petition are true, we think it would be reasonable to conclude that the publications referred to tended to expose Mrs. McDavid to public hatred, contempt, or ridicule; and if it had that effect and was not true, and not privileged, it constituted a libel within the purview of the statute. We think the language "public hatred," as used in the statute, signifies a public or general dislike or antipathy. According to the Century Dictionary, one of the meanings of the word "hate" is "to have little regard for, or less than for some other; despise in comparison with something else regarded as more worthy." And we think it is used in that sense in the statute. We do not regard it as necessary to discuss the words "contempt" or "ridicule." The answer in the divorce suit in one of the courts at Houston, the publication of which is here complained of, made certain charges against the plaintiff in that suit which tended to expose her to public hatred, contempt, and ridicule, and by inference, and in effect, charged that her mother was of the same class and possessed similar faults. It may be conceded, and it is true, that the document referred to did not charge the plaintiff in that suit or her mother, a plaintiff in this suit, with a violation of any penal law, nor with a lack of chastity or honesty; but it did charge them with being guilty of conduct generally regarded as unbecoming and improper, and calculated to bring upon any woman who so demeans herself public hatred or dislike and contempt and ridicule.

Counsel for appellee assert the proposition, which may be conceded as true, that in order to constitute libel, the defamatory words complained of must refer to some ascertained or ascertainable person, and that person must be the plaintiff. It is also asserted that if the words used contain no reflection upon any particular individual, ascertainable solely from the publication, no innuendo can make them defamatory, or make certain the person who was uncertain before. We cannot yield assent to the latter proposition. Santa Fe Town Site Co. v. Harris, 125 S.W. 77, and Galveston Tribune v. Guisti, 134 S.W. 239, cited by counsel in support of that proposition, are not regarded as analogous; and, besides, the Supreme Court has granted a writ of error in the Guisti Case, and it is still pending in that court. This court has heretofore had occasion to consider the question of identity in Houston Printing Company v. Moulden, 15 Tex. Civ. App. 586, 41 S.W. 381, and Schultze v. Jalonick, 14 Tex. Civ. App. 663, 38 S.W. 261. In the Moulden Case no name was mentioned in the publication, and the means of identification in that case were no more than they are in this case. In that case the publication read: "Indignation was expressed at the chaining together of a man and woman. Considerable indignation was expressed at the Grand Central Depot yesterday at a species of brutality that ought to deserve some punishment. A young man and his wife were chained together by the necks and were in charge of an officer en route to some town in North Texas. The young man it seems, lives at Beaumont, and in order to get license to marry the girl he swore falsely as to her age. The girl herself had committed no offense known to the law, and yet she was treated just as a convicted felon. It is the policy of the law to encourage the assumption of the conjugal yoke, rather than to punish those who have assumed these responsibilities." The plaintiff in that suit was the sheriff of Collin county, and at the time referred to in the publication was at the Grand Central Depot in Houston, and had in his custody and under arrest a young man who was accompanied by his wife, but who was not chained to him, nor otherwise restrained or molested; and, in disposing of the question of identity, this court said: "Appellant also complains by assignment that the court erred in overruling the first and second special exceptions to the petition, because the petition affirmatively shows that the libelous publication does not mention the plaintiff, directly nor indirectly, nor does it refer to him or describe him in any manner whatever, and because the alleged libel does not refer to plaintiff or his office by `name, fame, or description,' nor include or reach him by naming, mentioning, or description of any circumstance known to the public, nor name any transactions which refer or point to the plaintiff. It was not necessary to make the article published libelous that plaintiff should have been named, if he was pointed out by circumstances. The officer in charge of the prisoner, Foreman, was the person libeled, and the facts show that the plaintiff is that person. The libel, with the colloquium and innuendo, undeniably identifies the plaintiff as the officer guilty. It is only necessary that the words refer to some person ascertainable from the words used. Any one who was or should become conversant with the facts could not mistake the person and the officer accused. 13 Am. Eng. Ency. Law, 391, 392, and notes; Newell on Slander Libel, p. 258, § 22, illustration 4. The words applied to plaintiff, and could not apply to any one else. Odger on Libel Slander, 126 to 131, inclusive and notes. The court did not err as assigned."

In the instant case, while the first publication did not mention the name of any one, it described the plaintiff in the divorce suit as having been married before and divorced from her former husband, and described the defendant as employed by the city of Houston as a fireman and captain of a fire station, and stated that his salary under that employment was $90 per month. The second publication stated in terms that Mrs. Leora Alice Fischer had brought suit against her husband Chas. H. Fischer, who was described as a city fireman, and the publication stated that he had filed an interesting answer, protesting that he still loved his wife and would antagonize her efforts to secure a decree of separation, and that on the regular pay day he drew his $90, but failed to comply with the order of Judge Hamblen of the Fifty-Fifth district to pay $25 of that sum to Mrs. Fischer as alimony. The second publication tends to supply what was omitted from the first, and to identify the plaintiff in that suit; and we are not prepared to say that persons acquainted with Mrs. Fischer and her mother, upon reading the two publications, might not reasonably conclude that they were the two women referred to in the first publication. At any rate, the two publications furnished a clew by which that fact could be ascertained, and therefore they tended to do that which the libel statute prohibits.

As to the question of the publication's being privileged, we hold that the court should not have sustained the demurrer on that account, because the petition alleged that in making the publication the defendant was actuated by malice; and, if that averment can be sustained by proof of actual malice, the publication was not privileged. If the proof fails to show such malice, then the defense referred to will be available.

Our conclusion is that the trial court committed error in sustaining the demurrer to the plaintiffs' petition, and, for that reason, the judgment is reversed and the cause remanded.

Reversed and remanded.