Brown v. Durham

• Decision Date: 13 October 1897
• Citation: 42 S.W. 331
• Parties: BROWN et al. v. DURHAM.
• Court: Texas Court of Appeals

42 S.W. 331

BROWN et al. v. DURHAM.

Court of Civil Appeals of Texas.

October 13, 1897.

Error from district court, Gregg county; Felix J. McCord, Judge.

Action by D. D. Durham against Brown & Flewellen and another. There was a judgment for plaintiff, and defendants bring error. Affirmed.

F. H. Prendergast, for plaintiffs in error.

JAMES, C. J.

This is an action to recover damages for libel. The case was before the court of civil appeals at Galveston in 1893. The nature of the alleged libel being fully stated in the opinion of that court (reported in 3 Tex. Civ. App. 245, 22 S. W. 868), it is not necessary that we should again set it forth. We conclude, in view of the verdict, that the publication upon which the action is founded was libelous, and proceed to a discussion of the several assignments of error presented by the plaintiffs in error. There is no brief for defendant in error.

The first assignment is: "The court erred in charging the jury as follows: `When a defamatory and false publication is made by one person of another, malice will be imputed to the act.'" The proposition advanced is that it was for the jury to say whether malice will be imputed or not, and that the charge was on the weight of evidence. It appears to us that defendants sustained no injury by this paragraph, considering the entire charge. The court informed the jury that to publish anything that imputes insolvency, inability to pay one's debts, want of integrity in his business, etc., in a manner prejudicial to him in the way of his employment or trade, is libelous per se, if without justification; that such character of publication, in legal contemplation, tends to injure the credit and standing of the party of whom it is made; that what was meant by libelous per se is that a party may recover compensatory damages upon proof of the publication, and that the publication is false, without further proof of damage, "so that, where the publication is libelous per se, it is unnecessary for plaintiff to introduce any evidence from which malice may be inferred other than the libelous article,—that is, when a defamatory and false publication is made by one person of another, malice will be imputed to the act." The court then charged that the compensatory damages to which plaintiff would be entitled if the jury found the publication libelous and false would be such as directly or indirectly, or as an ordinary or probable result, would flow from the use of the language; and that if the jury found that defendants did publish of and concerning plaintiff certain things, as testified to, and that if they found such publication libelous and false under the definition given, and was defamatory to plaintiff's character as a business man, and imputed that he was a man that would not pay his debts and was unworthy of credit, and if the jury further found the same to have been false, then the law implies malice, and you will award to plaintiff, against defendants, such compensatory damages as directly or indirectly, or as an ordinary or probable result, would flow from the language used." The court also charged that, in order to find exemplary damages, the publication must have been wanton and malicious; that malice in this connection meant "a bad, wicked, or vile intent, the intentional and wicked doing of a wrong hurtful of another; so that if they found that the publication * * * was prompted by malice, as before defined, with intention to injure the plaintiff thereby, then you may find against such defendant, or such of the defendants as were prompted by the malice, as above defined, exemplary damages." They were instructed to find separately the actual and the exemplary damages, if any. The jury found no exemplary damages, but returned a verdict in favor of plaintiff for $250, actual damages. The charge above referred to was a submission of the case liberal to defendants. It left the libelous character of the matter to the jury, and authorized a verdict for damages only upon a finding that the matter published was libelous and false and without justification, all of which the jury must have affirmatively found. The verdict gave no exemplary damages; hence it would appear that they found an absence of actual or intentional malice. The law is that, in order to recover actual or compensatory damages in libel cases,...