Bell Pub. Co. v. Garrett Engineering Co.

• Decision Date: 12 December 1940
• Docket Number: No. 11146.,11146.
• Citation: 146 S.W.2d 301
• Parties: BELL PUB. CO. et al. v. GARRETT ENGINEERING CO.
• Court: Texas Court of Appeals

146 S.W.2d 301

BELL PUB. CO. et al. v. GARRETT ENGINEERING CO.

No. 11146.

Court of Civil Appeals of Texas. Galveston.

December 12, 1940.

Rehearing Denied January 9, 1941.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Garrett Engineering Company against Bell Publishing Company and another for alleged libel. From a judgment overruling defendants' several pleas of privilege to be sued in Bell county where defendants resided, defendants appealed.

Judgment affirmed.

Byron Skelton and Walker Saulsbury, both of Temple, and Clarence Lohman, of Houston, for appellants.

Sam D. Snodgrass, of Temple, and Howard, Reinhard & Schwing, of Houston, for appellee.

GRAVES, Justice.

These two appeals, taken and considered together, are from a judgment of the 55th District Court of Harris County, overruling the several pleas of privilege of the Bell Publishing Company, a corporation, and of Dr. O. F. Gober, to be sued in Bell County, Texas, where each of them resided, rather than in Harris County, where the venue of this suit was laid against them jointly and severally, the appealed-from order containing this recitation: "The Court, upon consideration of the said Pleas of Privilege and the Controverting Plea and the evidence duly offered, and being advised in the premises, finds that the defendant, Bell Publishing Company, and the defendant, Dr. O. F. Gober, were, at the time of the institution of this suit, and the time of service of process on them, and at the time of the execution and filing of their Pleas of Privilege herein, residents of Bell County, Texas, and did not reside in Harris County, Texas; that plaintiff's suit is one for damages arising from an alleged libel; that plaintiff has made out a prima facie case herein for a cause of action for libel accruing on May 21, 1939, when plaintiff then, ever since, and before, resided in Harris County, Texas, and by reason thereof Defendants' Pleas of Privilege and each of them should be denied and overruled."

There having been nothing else involved, the hearing was advanced by this court— upon motion therefor—pursuant to its Rule XI(a).

The appellee is also a corporation, resident in Harris County, Texas, and, as the basis for the suit thus designated in the quoted order, it, as plaintiff against the two defendants in the suit so filed against them in Harris County, alleged:

"That appellant Bell Publishing Company was the publisher of a daily newspaper in Temple, Bell County, Texas, to-wit: Temple Daily Telegram, and on the 21st day of May, 1939, printed and published the following article (by its co-appellant, Dr. Gober), towit:

"Sunday May 21, 1939. Temple Daily Telegram, Temple, Texas, Page 3.

"To the Home Owners and Voters of Temple.

"The tax payers of Temple have heretofore been very liberal in voting bond issues to provide paved streets, fire stations and equipment, school buildings and gymnasiums and adequate water and sewer systems.

"Since the present Board of Commissioners were inducted into office about a year ago we have voted a bond issue of $275,000.00 and the government has made a grant of $225,000.00 for repairs, renewals and extension of our water and sewer systems, and which work is now in progress.

"Not content with this expenditure of $500,000.00 during their first year in office, they are now calling upon us to vote an additional bond issue of $850,000.00 to provide a municipally owned power distributing plant.

"When Is This Expenditure of Public Funds Going To Stop?

"We are living in one of the most distressful periods within my memory, and a large per cent of the people of this city, and of the whole United States, is doing without things they really need, because of lack of cash and the fear of going deeper in debt.

"We Can't Spend Ourselves Out of Debt or Out of the Depression.

"Individually and collectively we ought not to incur a debt at this time for anything not absolutely necessary.

"The paved streets, school buildings, fire protection, and water and sewer system were absolutely necessary when the people voted the respective bond issues to provide such improvements.

"Is it absolutely necessary at this time that we provide a municipally owned power distributing plant for our City Commission to experiment with?

"It occurs to me that there has been enough experimenting with governmental affairs during the past six and one half years, and during which time our national debt has been increased more than twenty billion dollars.

"Is It Time That We Give Some Thought To Posterity?

"Should we continue to waste and squander public funds and pile up bonded indebtedness that will mean almost bondage to generations yet unborn?

"We have had throughout the nation sit down strikes of every kind and character, and it has occurred to me that it is about time the tax payers went on a sit down strike.

"I am unalterably opposed to a municipally owned power plant or distributing system, and for the following reasons:

"1. It will put too much government in business, and at a time when there is a crying need for more business in government.

"2. I can not believe it will result in any real saving to the users of electric energy.

"3. I know, and every sane person knows, that to successfully operate a utility of the kind there must be sound fixed policies extending over a long period of years, and since the governing body of the city is constantly changing, a successful operation of the utility would be almost impossible.

"4. If an independent distributing system is put in by the city: it means an economic loss of more than One Million Dollars by reason of the dismanteling of the present plant. I am in favor of strict regulations of all public utilities, but I do not favor killing an enterprise, or the dismanteling of our present plant in which so many widows, orphans and other innocent people have made investments.

"5. Because this bond election has been called by a vote of three out of five of the members constituting the Board of Commissioners of the City of Temple, and no member voting for the plan has ever had any experience whatever in the construction or operation of public utility.

"6. I have read the contract the Board of Commissioners has already entered into with Garrett Engineering Company, of Houston, and under the terms of which this company will be paid $39,525.00, whether it supervises the construction of the plant, or if the city should purchase the existing plant.

"7. The members constituting the Board of Commissioners of Temple are my warm personal friends, but I think they have made a most serious error in employing an engineering company to make the survey for, lay out, design and construct the distributing plant, when there is no person connected with the company who is a practical engineer, or who holds a degree of engineering. I am reliably informed that this company has never done any similar work, and by that I mean that it has never constructed such plant for any other city.

"8. I think our Board of Commissioners have made another great mistake in employing a firm of lawyers of San Antonio to handle the legal work and especially in view of the fact that we have a most competent and well experienced City Attorney who is paid for that purpose.

"9. I am not in favor of giving this said Board of Commissioners, or any other Board of Commissioners, that power to spend one and one-third million dollars, because I do not think any commission should have that much power.

"Do you?

"I am, therefore, calling a public mass meeting to be held at the Municipal Auditorium, 8 o'clock p. m., May 22nd (next Monday night), for the purpose of threshing the matter out and definitely determining whether or not Temple really needs this proposed Utility.

                                       "Dr. O. F. Gober
                

"(This is an advertisement, written and paid for personally by Dr. O. F. Gober)."

"Appellee further alleged that it was a corporation engaged in the work and profession of `consulting and supervising engineers' on the date of the publication of said article and had been in such business for many years prior thereto; that on December 6, 1938, the City of Temple, Texas, a municipal corporation, contemplated the construction or purchase of an electric light and power distribution system for said city, and on that date entered into a written contract with appellee to do the engineering work for such enterprise, in consideration of a fee of 4.65% of the cost thereof, a copy of such contract being attached to the petition as `Exhibit A'; that on May 15, 1939, the City of Temple, by resolution, ordered an election to be held for the purpose of voting bonds in the sum of $850,000.00 to provide funds for such electric light and power project, such election to be held on June 2, 1939, and while said campaign was in progress, the above article complained of in this suit was so published; that said article tended to and did injure and damage appellee in its business and credit, and did expose it to public hatred, contempt, ridicule and financial injury, and impeached the honesty and integrity of the officers of appellee; that it was libelous of and intended to libel appellee, and that it had been damaged in its business and profession in the sum of $50,000.00 general damages, and the further sum of $20,000.00 as exemplary damages, and prayed judgment against appellant, Bell Publishing Company, and appellant, Dr. O. F. Gober, jointly and severally for said amounts."

The challenged venue was laid in Harvis County, pursuant to Subdivision 29 of R.S. Article 1995, providing in material substance that damage suits for libel may, at the election of the plaintiff, be maintained in the county in which plaintiff resided at the time of the accrual of the cause of action; by a stipulation between the parties, it was agreed that this plaintiff below, the appellee here, had been at all proper times a resident of Harris County; further,...