Associated Press v. Walker

• Decision Date: 30 July 1965
• Docket Number: No. 16624,16624
• Parties: The ASSOCIATED PRESS, Appellant, v. Edwin A. WALKER, Appellee.
• Court: Texas Court of Appeals

Page 671

393 S.W.2d 671

The ASSOCIATED PRESS, Appellant, v. Edwin A. WALKER, Appellee.

No. 16624.

Court of Civil Appeals of Texas, Fort Worth.

July 30, 1965.

Rehearing Denied Sept. 17, 1965.

Cantey, Hanger, Gooch, Cravens & Scarborough, and J. A. Gooch, Carlisle Cravens, and Sloan B. Blair, Fort Worth, for appellant.

Looney, Watts, Looney, Nichols & Johnson, Oklahoma City, Okl., Andress, Woodgate, Richards & Condos and Wm. Andress, Jr., Dallas, for appellee.

PER CURIAM.

This is a libel suit. The parties will be designated as they were in the court below or The Associated Press as the A. P. and Walker by name.

The following are the reports of which Walker complained:

'October 2, 1962 'Walker, who Sunday night led a charge of students against federal marshals on the Ole Miss Campus, was arrested on four counts including insurrection against the United States.'

'October 3, 1962

'By Van Savell: Oxford, Miss., October 3, 1962 (AP) 'Utilizing my youth to the fullest extent, I dressed as any college student would and easily milled among the several thousand rioters on the University of Mississippi Campus Sunday night.

"This allowed me to follow the crowd-a few students and many outsiders-as they charged federal marshals surrounding the century old Lyceum Building. It also brought me into direct contact with former Army Maj. Gen. Edwin A. Walker, who is now under arrest on charges of inciting insurrection and seditious conspiracy.

"Walker first appeared in the riot area at 8:45 p. m., Sunday near the University Avenue entrance about 300 yds. from the Ole Miss Administration Building.

"He was nattily dressed in a black suit, tie and shoes and wore a light tan hat.

"The crowd welcomed Walker, although this was the man who commanded the 101st Airborne Division during the 1957 school integration riots at Little Rock, Arkansas.

"One unidentified man queried Walker as he approached the group. 'General, will you lead us to the steps?'

"I observed Walker as he loosened his tie and shirt and nodded 'Yes' without speaking. He then conferred with a group of about 15 persons who appeared to be the riot leaders.

"The crowd took full advantage of the near-by construction work. They broke new bricks into several pieces, took survey sticks and broken soft drink bottles.

"Walker assumed command of the crowd, which I estimated at 1,000 but was delayed for several minutes when a neatly dressed, portly man of about 45 approached the group. He conferred with Walker for several minutes and then joined a group near the front.

"Two men took Walker by the arms and they headed for the Lyceum and the federal marshals. Throughout this time, I was less than six feet from Walker.

"This march toward tear gas and some 200 marshals was more effective than the previous attempts. Although Walker was unarmed, the crowd said this was the moral support they needed.

"We were met with a heavy barrage of tear gas about 75 yards from the Lyceum steps and went a few feet further when we had to turn back.

"Before doing so, many of the rioters hurled their weapons-the bricks, the bottles, rocks and wooden stakes-toward the clustered marshals.

"We fled the tear gas and the charging marshals-the crowd racing back to a Confederate soldier's statue near the grove entrance below the Lyceum.

"It went to a telephone. A few minutes later I returned and found Walker talking with several students. Shortly thereafter, Walker climbed halfway up the Confederate monument and addressed the crowd.

"I heard Walker say that Gov. Barnett had betrayed the People of Mississippi. 'But don't let up now,' he said, 'You may lose this battle, but you will have been heard.'

"He continued: 'This is a dangerous situation. You must be prepared for possible death. If you are not, go home now.'

"There were cheers. It was apparent that Walker had complete command over the group.

"By this time, it was nearly 11:00 p. m. and I raced to the telephone again. Upon my return, Walker was calmly explaining the 'New Frontier Government' to several bystanders. He remained away from the rioting throughout the next few hours, but advised on several tactics.

"One Ole Miss student queried the former General, 'What can we use to make the tear gas bombs ineffective? Do you know of any way that we can attack and do some damage to those damn Marshals?'

"Walker suggested the use of sand to snuff out the tear gas.

"'This stuff works real well, but where can you get it?', he asked.

"At this time the rioters were using a University fire truck and fire extinguishers in an attempt to make the tear gas bombs ineffective.

"I left Walker and walked about 100 yards away where Molotov cocktails-gasoline, in bottles with a fuse-were being made.

"Again I left the area for a telephone. As I walked toward a Dormitory with George Bartsch of the Little Rock Associated Press Bureau, we were attacked by Marshals who mistook us for students. We were deluged by tear gas, manhandled, handcuffed and beaten with clubs during a 200 yard walk back to the Lyceum Building.

"Thanks to recognition from Chief Marshal James P. McShane, we were quickly released and given freedom in the Marshals' Headquarters.

"Within minutes rifle and shotgun fire erupted from the rioting crowd and two men-one a French newsman-were killed. We considered ourselves lucky to have been arrested and glad to be behind closed, heavily guarded doors." $The only two statements of the above quoted reports which were complained of by Walker as being libelous and which form the basis of special issues submitted by the Court were: (1) 'Walker, who Sunday led a charge of students against federal marshals on the Ole Miss Campus' (October 2, 1962 report), and (2) 'Walker assumed command of the crowd' (October 3, 1962 report). For the sake of brevity these two statements will hereinafter be referred to as the 'charge' and 'command' statements respectively.

In answer to special issues one through four, the jury found that the 'charge' statement was not 'substantially true', did not constitute fair comment, was not made in good faith and was actuated by malice. It found to the same effect in response to similar issues five through eight concerning the 'command' statement.

In answer to issue No. 9 the jury found damages in the sum of $500,000.00 and having found that A. P. was actuated by malice in answer to special issues Nos. four and eight the jury, in response to special issues Nos. ten and eleven found that exemplary damages should be awarded and in the amount of $300,000.00.

Based upon the verdict of the jury, judgment was entered for Walker and against the A. P. in the sum of $500,000. The judgment recited that there is no evidence to support the jury's findings of malice and $300,000 for exemplary damages.

Appellant contends that the court erred in rendering judgment for appellee rather than it because (1) as a matter of law the evidence conclusively established that the 'charge' and 'command' statements were substantially true; (2) each statement was a fair comment about a matter of public concern published for general information and thus privileged under the provisions of Art. 5432, Vernon's Ann.Civ.St.; (3) such statements made without malice are protected by the First and Fourteenth Amendments to the Constitution of the United States; (4) over objection appellee was permitted to testify that he did not assume command; (5) it held as a matter of law that the 'charge' and 'command' statements were libelous rather than submitting issues as to each; (6) the evidence conclusively established as a matter of law that the 'charge' and 'command' statements were made in good faith with reference to matters it had a duty to report to its members and thence to the public; (7) the amount of damages found was so grossly excessive as to be patently wrong and unjust and the findings in response to the damage issue No. 9 and to special issues one, two, three, five, six and seven are so against the weight and preponderance of the evidence as to be manifestly wrong and unjust and thus insufficient to support such answers; and (8) the evidence conclusively established as a matter of law that the jury was guilty of material misconduct which probably resulted in injury to the defendant.

We affirm.

Evidence

In discussing the points relating to the quantity and quality of the evidence we have examined the complaints of the appellant in the light of the Article by Chief Justice Robert W. Calvert entitled, "No Evidence' and 'Insufficient Evidence' Points of Error', 38 Tex.Law Rev. 361 and authorities therein cited.

The evidence considered in its most favorable light in support of the findings of the jury and the judgment of the court is in essence as follows: At approximately 4:00 P. M. of the day in question, a ring of Federal marshals had encircled the Lyceum Building. Walker arrived on the campus about 8:45 P. M. At that time a loud, violent riot was in progress in an area of the campus known as the Circle. A crowd assembled in the Circle area, began taunting and jeering the marshals. By 8:00 P. M. a full scale riot had erupted which was to continue all night, destroy 16 automobiles, kill two people, injure 50. The rioters would form into groups and charge toward the marshals, throwing bricks, bottles, rocks, sticks and other missiles. The rioters attempted to charge the marshals with a fire truck and then with a bulldozer. 'Molotov cocktails' were hurled at the marshals. Finally rifle fire erupted. The next morning the campus looked like a battlefield. Soon after his arrival, Walker, after some urging to say a few words, spoke from the steps of the Confederate Monument. While there is some dispute as to what he said, there is testimony that he told the assembled groups that while they had a right to protest that violence was not the answer. He was 'booed' or 'jeered' at this time and again when urging a cessation of violence. He and others...