Bell Pub. Co. v. Garrett Engineering Co.

• Decision Date: 24 July 1941
• Docket Number: No. 11241.,11241.
• Citation: 154 S.W.2d 885
• Parties: BELL PUB. CO. et al. v. GARRETT ENGINEERING CO.
• Court: Texas Court of Appeals

154 S.W.2d 885

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

No. 11241.

Court of Civil Appeals of Texas. Galveston.

July 24, 1941.

Rehearing Denied October 23, 1941.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action by the Garrett Engineering Company against the Bell Publishing Company and others for alleged libel. From a judgment for plaintiff, defendants appeal.

Reversed and remanded for new trial.

W. O. Cox, and Will R. Brown, both of Temple, for appellant Dr. O. F. Gober.

Clarence Lohman, of Houston, and Joe Everton, Walker Saulsbury, and Byron Skelton, all of Temple, for appellant Bell Pub. Co.

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

CODY, Justice.

This is a libel suit. The petition on which appellee, who was plaintiff below, went to trial was before us for consideration in connection with the appeal from the judgment of the trial court holding that the venue of the case was properly laid in Harris County, which holding was by us affirmed. Bell Publishing Company et al. v. Garrett Engineering Company, 146 S.W.2d 301. Reference is here made to our opinion on that appeal for a statement of the petition. The article sued on as being libelous is set forth in full in said statement of the petition. As appears therefrom, paragraph 7 of said article, which was admittedly written by appellant Dr. O. F. Gober, and published by appellant Bell Publishing Company in its newspaper, is as follows: "I think that they (the Board of Commissioners of Temple) 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." Appellee alleged that this intended to charge that appellee did not possess the skill, technical knowledge or ability to properly represent the City of Temple as engineers in the construction of a proposed electric light and distribution system, and further, that various people were led thereby to believe that no person connected with appellee was an engineer, and that appellee was wholly incompetent to perform the services or do the work in the trade or profession in which it was then engaged; that the article was published maliciously, etc.

Appellants answered that for years prior to May 21, 1939, the issue of whether Temple should have a municipally owned and operated light and power plant was a matter of profound concern to citizens of Temple. That for years appellee had actively assisted those citizens in favor of such a plant, and had received some compensation and had contracted for additional fees. That during the campaign that raged for and against the project, appellee had assisted in the plan to carry the project, and had furnished literature, circulars, information and contributed money to the campaign to carry the election of the bond issue to erect same. That for four days prior to the election appellee kept its president M. T. Garrett in Temple to aid in and to contribute money to win the election. That appellee was a part of the group urging the bond issue, and lost its privilege and became subject to reasonable and fair comment and criticism in regard to the election in which the public was vitally interested and concerned. That the occasion, as well as the article itself, was privileged under the statutes of this state as a reasonable and fair comment on criticism of matters of public concern published for general information at a time and under circumstances that they were absolutely privileged as to appellant Bell Publishing Company. Also that it was conditionally or qualifiedly privileged as to both appellants. Appellants further answered that the matters contained in the article were true, and if not, then they were substantially true; and if not substantially true, appellant believed so to be in good faith; and had reasonable ground for such belief.

In response to special issues the jury found:

(1) That appellee did have connected with it on May 21, 1939, a practical engineer as such term is defined in the charge.

1-A. That appellee did on May 21, 1939, have connected with it a practical electrical engineer.

2. That appellee had not constructed for any other city a plant similar to that contemplated at that time to be built at Temple, Texas, from the bond issue in contemplation by the City of Temple.

2-A. That appellee had supervised as engineers the construction for one or more cities of a plant similar to that contemplated to be built at Temple from the bond issue then in contemplation.

3. That at the time of the publication of the article appellant Dr. O. F. Gober honestly believed to be true the statements contained in paragraph 7 of said article.

4. A similar finding was made in special issue No. 4 with reference to the honest belief as to Bell Publishing Company as was made in special issue No. 3 as to Dr. Gober.

5. And in response to the question: "What sum of money, if paid now in cash, do you find from a preponderance of the evidence to be the amount of damage because of loss or injury, if any, to the reputation of plaintiff company as a direct and proximate result of the publication of paragraph 7 of the article in question in this cause on May 21, 1939?" The jury answered "$15,000.00".

The court found as an undisputed fact that on and before May 21, 1939, appellant had connected with it "persons who held a degree of engineering at all times material to this suit, and in particular that one J. Blair Stuart was connected with plaintiff company, and was also the vice-president thereof since its incorporation in 1932, and that he * * * held a degree of Engineering from the Rice Institute. * * *"

Upon the jury's and the court's findings, the court rendered judgment in favor of appellee against appellants jointly and severally for the sum of $15,000.

We held in the appeal of the venue question that statements in paragraph 7 of the article "were, under the inescapable imputations, libelous, unless shown to be true, under such well-settled holdings in Texas as Belo & Co. v. Looney, 112 Tex. 160, 246 S.W. 777." Bell Pub. Co. et al. v. Garrett Engineering Co., 146 S.W. 2d 301, at page 306. Upon the trial of the case the jury, upon sufficient evidence found certain of the matters in paragraph 7, for which appellee sued appellants as being libelous, were not true, as appears from the special issues above. We therefore must overrule the various contentions urged by appellants that the court should have instructed a verdict for them.

Appellants urge, as reversible error, the failure of the court to limit the jury, in assessing damages, to the consideration of that portion of the article alleged to be libelous, which was false, if any, and to exclude from their consideration the portion of the article which was true. We are construed to sustain this contention. It was a part of appellee's cause of action that the statement in the article that appellee "has never constructed such plant for any other city" was false and libelous, and the same damaged appellee's reputation, business, etc. But the jury found, upon sufficient evidence, in response to special issue No. 2 (as indicated above) that this portion of the article was true. The special issue submitted to the jury relating to damages is special issue No. 5 and in connection with such charge the court gave the following:

"You are instructed in connection with...