Baten v. Houston Oil Co.

• Decision Date: 18 December 1919
• Docket Number: (No. 507.)
• Citation: 217 S.W. 394
• Parties: BATEN v. HOUSTON OIL CO. OF TEXAS et al.
• Court: Texas Court of Appeals

217 S.W. 394

BATEN v. HOUSTON OIL CO. OF TEXAS et al.

(No. 507.)

Court of Civil Appeals of Texas. Beaumont.

December 18, 1919.

Rehearing Denied January 7, 1920.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

Suit by Thomas J. Baten against the Houston Oil Company of Texas and others. From judgment sustaining general demurrer to petition, plaintiff appeals. Reversed and remanded, with directions.

Crook, Lord, Lawhon & Ney and Smith & Crawford, all of Beaumont, for appellant.

W. E. Orgain, of Beaumont, and McDonald, Meachum, McMeans, Garrison & Pollard, and Kennerly, Williams, Lee & Hill, all of Houston, for appellees.

WALKER, J.

This is a suit by the appellant, as plaintiff in the court below, against the appellees as defendants, for damages; plaintiff's petition containing three counts, viz.:

(1) For libeling the plaintiff through the publication of a libelous document and filing the same in the Supreme Court of the United States.

(2) For libeling the plaintiff by the publication and circulation of the libelous document and dissemination of its contents to various parties in sundry places, both before and after the filing of same in the Supreme Court of the United States.

(3) For malicious prosecution by defendants, without probable cause, of a motion seeking and having for its object the punishment of plaintiff by proceedings before the Supreme Court of the United States as for criminal contempt.

The court below sustained a general demurrer to all three counts, and from this judgment sustaining the general demurrer appellant has brought this case to this court.

In 1911, Cornelia G. Goodrich and others, this appellant being one of their attorneys, filed suit against the Houston Oil Company of Texas et al. in the District Court of the United States for the Eastern District of Texas, for the title and possession of 2,578 acres of land in the Chas. A. Felder league of land in Hardin county, Tex. On the trial of this cause the plaintiffs recovered the land; the defendants appealed to the Circuit Court of Appeals at New Orleans, which court reversed the case and sent it back for a new trial. Houston Oil Co. of Texas v. Goodrich, 213 Fed. 136, 129 C. C. A. 488.

On the second trial, the plaintiffs again recovered the land, again defendants appealed to the Circuit Court of Appeals, and on this second appeal a writ of supersedeas was granted by the trial court. On this appeal the Circuit Court of Appeals affirmed the judgment of the trial court. The Supreme Court of the United States granted a writ of certiorari to the Circuit Court of Appeals (241 U. S. 657, 36 Sup. Ct. 286, 60 L. Ed. 1225), and thereupon the cause was removed to the Supreme Court for review. At the time of the institution of the suit, the Houston Oil Company was in possession of the land. Pending the first appeal, no supersedeas having been granted, the plaintiffs, by due process of law, were placed in possession of the land. When the case was reversed, the Houston Oil Company filed petition asking restitution of the premises, which was denied by the trial court. This request was renewed in the Circuit Court of Appeals on the second appeal, which also denied the request. While this land was in litigation, the plaintiffs and their attorneys sold the timber on this land to the Village Mills Company, which proceeded to cut and remove practically all the timber from the land, amounting to something like 12,000,000 feet. There was also on this land a little house that figured prominently in the trial of the case, known as the W. T. Carroll house. In some way, pending the litigation, this house was removed from the premises. While the case was pending in the Supreme Court of the United States, the appellees herein, being the defendants in the above-described suit and their attorneys, filed a motion for contempt against the plaintiffs and their attorneys; the appellant here, Thomas J. Baten, being one of the attorneys for plaintiffs.

This suit for libel is based on this motion for contempt and the conduct of the appellees and their attorneys in circulating the same. Appellant has made this motion and all proceedings thereon a part of his petition, which petition is very lengthy, covering 75 pages of the transcript. He specially pleads various portions of this motion, but even these excerpts are too long to be copied in this opinion. However, we will give the following quotation:

"Respondents conspiring among themselves to cut, remove, and appropriate said pine timber and to escape liability therefor, organized a corporation known as the Village Mills Company. * * * During 1913 and 1914 respondents, acting through the Village Mills Company, cut, removed, and appropriated the timber from approximately 900 acres of the land in suit * * * aggregating 4,713,464 feet of pine timber; that affiant believes and so charges that soon after the rendition of the judgment, * * * and about the time of the suing out by petitioners of their writ of error from said judgment, * * * said parties respondent and said attorneys respondent, some or all, conceived and formed the purpose, design, and scheme and each with the others agreed and conspired to enter on said tract of land and into the improvements thereon and take and remove such yellow pine timber and appropriate same to their own use and benefit under conditions aptly calculated to enable them to escape liability therefor, regardless of whether said parties recovered title and possession of said tract of land * * * or did not so recover, and with the purpose and design also to have, take, and appropriate said timber, so that when final judgment in this cause was entered the most valuable portion of said tract of land would have been appropriated by them; * * * that affiant believes and so charges that in carrying out said design, scheme, and conspiracy, and with the purpose to avoid and escape personal financial liability therefor, and to cover up and conceal said design, scheme, and conspiracy, * * * said parties respondent and attorneys * * * on the 19th day of July, 1913, organized and caused to be created, incorporated, and chartered under the laws of the state of Texas said Village Mills Company; * * * that affiant believes and so charges that in the organization of said corporation the said parties respondent * * * and said Village Mills Company acting together and each acting for the others, and in furtherance of and in carrying out said design, scheme, and conspiracy, * * * began cutting and removing and appropriating to their own use and benefit the said timber thereon; * * * that since originally beginning such corporations respondents have so cut, removed, and appropriated approximately 12,811,459 feet of pine timber therefrom, * * * all of which was done and is being done in carrying out the design, scheme, and conspiracy aforesaid, appropriating the valuable portion of said tract of land to their own use and benefit, and so destroying the corpus of the property that the final judgment of this court will avail only as to a minor portion thereof from the standpoint of value, and with the purpose of interfering with and defeating the jurisdiction of said District Court, the said Circuit Court of Appeals, and of this court over said property, * * * to show cause why they and each of them should not be adjudged in contempt of this court and punished therefor for violating the order of supersedeas herein and destroying almost wholly the subject-matter of litigation, by cutting, removing, and appropriating the pine timber * * * and willfully destroying a part of the improvements thereon, which improvements were valuable evidence on behalf of petitioners. The house known as the W. T. Carroll house, * * * which was perhaps the most * * * valuable piece of evidence offered on the trial to sustain petitioners' title, has been burned by respondents since the granting and service of said supersedeas, in violation thereof."

Appellant, by proper innuendoes, shows the relation of these allegations to himself, pleads his damages, and states fully the relief sought by him.

The first question raised on this appeal is: Is this language libelous? "Libel" is defined by article 5595, R. S. 1911, as follows:

"Libel is a defamation expressed in printing or writing, * * * 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, * * * and thereby expose such person to public hatred, ridicule or financial injury."

It seems to us that the language above quoted comes clearly within this statute. Appellant is charged with destroying valuable testimony. He is charged with conspiring to defeat the jurisdiction of the courts to which he had submitted his litigation. He is charged with trying to appropriate to himself valuable property, claimed by the relators, in such a way as to avoid financial responsibility. He is charged with conspiring with others to effect these ends. Construing this statute in Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167, the Supreme Court in an opinion by Judge Dibrell, says:

"By the terms of the present law, a libelous publication, contrary to the common-law rule, becomes actionable without the proof of malice, whether it is or not libelous per se. Under the present law, it is not necessary to the right to maintain an action for a publication not libelous per se to allege or prove special damages. * * * In this particular the common-law rule has been modified."

This language is libelous per se under the rule announced by the Supreme Court in Belo v. Fuller, 84 Tex. 453, 19 S. W. 616, 31 Am. St. Rep. 75:

"Words which impute that the plaintiff has been guilty of a crime punishable with imprisonment are actionable per se. It is not necessary that...