Schulze v. Jalonick

Decision Date23 February 1898
Citation44 S.W. 580
PartiesSCHULZE v. JALONICK et al.
CourtTexas Court of Appeals

Appeal from district court, Hays county; H. Teichmuller, Judge.

Action by Alvin Schulze against George W. Jalonick and another. From a judgment for defendants, plaintiff appeals. Affirmed.

L. H. Browne, Gustave Cook, and Owen Ford, for appellant. Leake, Henry & Greer, for appellees.

FISHER, C. J.

This is an action for libel by appellant against Jalonick and the Pennsylvania Fire Insurance Company, based upon a publication wherein it is alleged the appellant was charged with running a "blind tiger," meaning that he was guilty of the offense of violating the local option laws in San Marcos, Hays county, at a time when local option was in force in that county. Trial in the court below resulted in a verdict in favor of the defendants.

There is evidence in the record which warrants this court in finding the following facts: The appellee Jalonick, about the time alleged in the petition, published a pamphlet, which contains, among other matters, the following:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Upon the page of the publication noticed appears the name of plaintiff, Alvin Schulze, as the owner of a certain building, and under the word "Occupancy" appear the words "Blind Tiger." This book or pamphlet which contains this publication was gotten up and published by Jalonick at a time when he was the manager of the Texas Survey & Rating Bureau, a business then engaged in by him for the benefit of the appellee the Pennsylvania Fire Insurance Company, and other insurance companies doing business in Texas, in rating property within this state as the basis for insurance; and the facts warrant the conclusion that, previous to the time of this publication, there was an understanding between the insurance companies and Jalonick that he should make such publications or reports, showing the condition of property situated in towns within this state, and such reports or publications, when made, were to be used by the insurance companies as their basis for rates of insurance; and we find that the pamphlet in question was published by Jalonick for that purpose; and we find that it was a part of his duty, in making the publications, to state the truth, and to give correct information, for the guidance of the insurance companies, and show the position and the occupancy of the property; and that the occupancy of a building affects the price or rates of insurance. We find that the publications were not for circulation generally, but were intended to be used only for the purpose of conveying correct information to the insurance companies, and to be used by them and their agents, and that they were delivered by Jalonick for that purpose, and that the defendants did not authorize an exhibition of these publications to the public generally, by the subordinate agents of the insurance companies. We do not find that the publication in express terms charges the appellant with conducting a "blind tiger," and its meaning in this respect is somewhat doubtful; but there is evidence in the record which would warrant the jury in concluding that the publication did not charge Schulze with conducting or running a "blind tiger," but that it indicated only that the building was occupied by some one for that purpose.

A "blind tiger" we find to be a place where such intoxicating drinks as are prohibited by the local option law are disposed of or sold in violation of that law. We find that at the time of the publication the local option law was in force at San Marcos, Hays county, Tex., and that the publication referred to buildings situated in that town. There is also evidence which justifies the finding that at the time of the publication the building owned by Schulze was then actually occupied and used for the purpose of disposing of intoxicating drinks, in violation of the local option law. We also find that many of the residents of San Marcos, who were acquainted with Schulze, construed the publication to mean that he was conducting a "blind tiger" in the building owned by him, and there is some evidence which tends to show that his reputation and good standing were affected by this publication; and there is also evidence which tends to show that prior to the publication there was current a general rumor to the effect that he was connected with the business carried on in the building, but, as a fact, we find that such was not the case.

The first question presented is as follows: "The court erred in overruling the objections of plaintiff, and permitting the defendants to show by the following witnesses, G. G. Johnson, William Dwyer, B. W. Smith, Jr., Claud Ivey, J. J. Barbee, T. F. Hewitt, Philip Springer, and W. C. Dugger, the testimony as shown and set forth in plaintiff's bill of exceptions No. 1, that plaintiff's building, as designated in Exhibit A, in evidence, from January 6, 1892, the time that local option went into full force and effect in precinct No. 1, to the date of the publication of the pamphlet Exhibit A, to wit, June 30, 1892, was generally reputed and norated, in San Marcos, as a place where intoxicating liquors were sold in violation of the local option law, some of the witnesses denominating it a `blind tiger,' and connecting plaintiff with it, as keeping it, and from the fact that a `blind tiger' was commonly and notoriously reported as being run there, was not communicated to Jalonick by Dugger, which character of evidence was wholly irrelevant, hearsay, and could not be introduced even to mitigate damages, and under the rules of evidence was altogether inadmissible." There are no propositions under this assignment, but two objections to the evidence may be carved out of it. First, that general repute was not admissible to connect plaintiff with the crime charged; second, that the crime itself could not be proven by general reputation, even in mitigation of damages, unless the publisher of the libel, at the time, knew of such general rumor. It is not pretended that this testimony would be admissible in justification, but its purpose was simply in mitigation of the damages, and as having some bearing in disproving a malicious intent to publish and circulate a libel.

Speaking to the first objection, it is clear that, by the decided weight of authority, evidence of the plaintiff's general reputation in the respect in which it is assailed by the alleged libel is admissible in mitigation of damages; but there is much diversity of opinion as to the admissibility of evidence tending to show that it was generally reputed that the plaintiff was guilty of the crime charged. The evidence of general character, if admitted, could only be considered in mitigation of the damages sustained by the plaintiff, and this upon the theory that a person with an already tarnished reputation is not as likely to suffer damages thereto to the same extent as one of unblemished character. The effect of the libel upon the plaintiff's reputation is the principal element of damage, and, if it may be shown in mitigation that his general reputation in the respect in which it is assailed is bad, no substantial reason can be given why a like inquiry cannot be made into the general repute as to his connection with the crime. The general consensus of opinion among his neighbors of his guilt of the crime, that existed prior to the alleged libel, affects in some degree his reputation and standing in the community, and if his previous good reputation, by reason of this opinion, is impaired, it would have as important a bearing on the amount of damages he had sustained by reason of the publication as would his general reputation, in the respect in which it was assailed by the libel. In Blickenstaff v. Perrin, 27 Ind. 528, it is said: "If, before the speaking of the words complained of, there exists a general rumor or suspicion that the party is guilty of the criminal act charged against him, the character is already traduced, and the evidence is, in effect, the same as that of general bad character, in reference to the crime imputed." In the case of Wetherbee v. Marsh, 20 N. H. 561, the sole question was whether evidence of a general report that the plaintiff had committed the crime was admissible. The court, after discussing authorities, says: "But the evidence is only admitted in mitigation of damages; and if, in point of fact, the reputation of the plaintiff has become fixed in respect to the crime imputed by the common speech of men, before the utterance of the words complained of, it is obvious that the mischief occasioned by them is less than if they had been the first cause of the general suspicion, and had, in any just sense, given birth to the infamy under which the plaintiff suffers. There is certainly a distinction between the two cases, which ought to be recognized, in favor of the party who has committed only the minor offense of charging a crime that the accused has been so generally believed guilty of that he has suffered but little by the slander. The jury alone can appreciate that difference by determining, upon the evidence, how far the plaintiff had been sunk in infamy before the weight of the slander complained of was added, and how far the aspersions cast by the defendant have deepened the infamy, if at all. We conclude, therefore, in the conflict of opinion which has undoubtedly existed on this question, that the better reason is with those who admit the evidence to go to the jury to show that, however unable the defendant has been to prove the truth of the words uttered, yet the calumny they contain is one under which the plaintiff so unquestionably lay before they were spoken that less damage has resulted from them than if the reputation which they aspersed had been previously pure. The defendant had spoken words charging the plaintiff with having burned his buildings and the buildings of others. Now if, before...

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