Evans v. Houston Printing Corporation, 12022.

• Decision Date: 02 December 1948
• Docket Number: No. 12022.,12022.
• Citation: 217 S.W.2d 85
• Parties: EVANS v. HOUSTON PRINTING CORPORATION.
• Court: Texas Court of Appeals

Page 85

217 S.W.2d 85

EVANS v. HOUSTON PRINTING CORPORATION.

No. 12022.

Court of Civil Appeals of Texas. Galveston.

December 2, 1948.

Rehearing Denied January 27, 1949.

Appeal from District Court, Harris County; William M. Holland, Judge.

Action by Thomas E. Evans against the Houston Printing Corporation to recover damages for alleged libel. Judgment granting defendant's motion for judgment, and plaintiff appeals.

Reversed and cause remanded.

T. G. Schirmeyer, of Houston (Franklin, Kelly & Fellbaum, of Houston, of counsel), for appellant.

Frank J. Knapp and W. N. Blanton, Jr., both of Houston (Butler, Binion, Rice & Cook, of Houston, of counsel), for appellee.

GRAVES, Justice.

This was an action for damages for alleged libel, brought by appellant, Thomas E. Evans, as plaintiff, against appellee, the Houston Printing Corporation, as defendant, arising out of the publication by appellee of two articles in its newspaper, The Houston Post, on August 8, and 9, 1946, respectively; judgment was rendered for appellee, upon appellee's motion for judgment, after the jury had been discharged without reaching agreement.

Such judgment was based upon the trial court's conclusion that an instructed verdict should have been granted, because, under the undisputed evidence, the article of August 8th could not either directly, or by innuendo, be construed as libelling appellant; that the truth, or substantial truth, of all material statements which were alleged to have been libelous, was established as a matter of law; and that such articles were privileged.

Appellant's points-of-error for a reversal, as briefed and indexed by him, are these:

"Point I — The trial court erred in granting defendant's motion for a directed verdict and motion for judgment.

"Point II — The articles are libelous.

"Point III — The articles are not true and substantial truth is not an absolute defense.

"Point IV — The articles are not privileged.

"Point V — The entire U. S. Coast Guard record should have been admitted in evidence.

"Point VI — Trial court did not properly charge the jury."

In limine, it is obvious from a reading of Points V & VI that neither of them presents anything for review here, because they deal only with alleged errors of the court, (1) in not permitting certain testimony to go to the jury, and (2) in improperly charging it.

Since, as indicated, the jury was discharged and the whole cause decided by the court itself as if following an instructed verdict, these complaints are no longer material.

The first four points, however, going as they do to the expressed ground upon which the trial court held that an instructed verdict would have been proper, may be disposed of together, since they raise the only overall question of law to be determined by this Court, to-wit:

Did the pleadings and evidence for the appellant raise any material issue-of-fact for the jury?

In other words, the test is whether or not the court could "render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." Wininger v. Ft. Worth & D. C. R. Co., 105 Tex. 56, 143 S.W. 1150.

See also: Coca-Cola Bottling Co. v. Burgess, Tex.Civ.App., 195 S.W.2d 379, at page 381; Sec. 15, Art. I, Texas Constitution, Vernon's Ann.St.; Johnson v. Moody, Tex. Civ.App., 104 S.W.2d 583, at pages 584, 586; Ferguson v. Houston Press Co., Tex. Civ.App., 1 S.W.2d 387, affirmed by Tex. Com.App., 12 S.W.2d 125; Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, Pars. 6 and 7.

The appellant had declared-upon the two articles so forming the basis of his suit, had at length alleged all of them to be libelous as against himself, and had attached exact copies thereof to his trial-petition, as exhibits "A" and "B" thereto.

Like copies of the same documents are also attached to this opinion, under the same exhibit numbers.

Appellant further had alleged their publication and circulation by the appellee in due course of printing and mailing out its "Houston Post" to its entire clientele in Harris County, where it was published, as well as elsewhere He had also supported his claimed cause-of-action arising out of such publications by the appellee with extended testimony upon his side.

Whereupon, the appellee, in its turn, after in effect conceding its issuance, publication, and circulation of such two articles substantially as charged by the appellant as to such procedural acts, denied that either of them had been libelous as claimed by the appellant, or in any respect injurious to him, and further asserted: (1) That the truth, or substantial truth, of all material statements, which he had so alleged to have been libelous against him, had been established to be true as a matter of law; (2) that they had all been privileged under the law, Vernon's Texas Civil St.1948, Art. 5432, subds. 1 to 5, inclusive, hence had not been susceptible of being libelous toward the appellant.

The trial court, after having first submitted to a jury in some 16 special-issues what it at that time deemed to have been the questions-of-fact raised by the pleadings and the evidence from both parties in the controversy, and after having discharged a jury, which had failed to agree thereon, as above recited, at that stage granted the appellee's motion therefor and rendered the judgment here at bar for the appellee.

In doing so, the court at length set out in support of its final judgment, findings-of-fact and conclusions-of-law.

These are too long for copying or extended quotation here, but it is evident therefrom: (1) That many, if not all, of the controlling ones of the fact-findings were drawn exclusively from the appellee's evidence upon the trial; (2) that the conclusions-of-law deduced therefrom to the effect, (a) that the article of August 8th did not libel the appellant; (b) that the one of August 9th was a privileged publication by a newspaper of a fair, true, and impartial account of official proceedings, pursuant to Vernon's Texas Civil Statutes, Art. 5432, Subdivisions 1 to 5, inclusive; (c) that the August 9th article was further privileged as a fair, true, and impartial account of a public meeting dealing with public purposes, based on Subdivision 3 of such Art. 5432; and (d) that all the statements contained in both articles "which could possibly constitute a libel of the plaintiff were established as a matter of law," were expressly by the court "based upon paragraphs 8, 9, and 10, of the above findings-of-fact."

It seems clear to this Court that in so proceeding, the trial court erred, and that it should have refused the appellee's motion for judgment in its favor, and granted a new trial; the cause was still a jury case, in which the court could not, in the stated circumstances, deprive the appellant of the right to a jury-trial guaranteed him by Section 15, Article 1, of the Constitution of Texas.

As this Court understands the state of our decisions, the rule above quoted, under which alone a cause may be so taken from the jury, is the same, whether the suit be one for libel, or for any other legitimate cause-of-action, and simply is, to repeat it another way, this: "On motion to direct a verdict the court presumes to be true the evidence of the opposite party, who is entitled to the most favorable construction that it will properly bear and to the benefit of all reasonable inferences therefrom. * * * All contradictory or countervailing evidence is left out." See Coca-Cola Bottling Co. v. Burgess, Tex.Civ.App., 195 S.W.2d, at page 381.

Moreover, when the sued-upon articles are examined in the light of the pleadings and evidence so presented by the appellant, it seems equally clear that questions-of-fact over whether or not they had been libelous toward him did arise, since he was undisputedly shown to have been in charge as master of the SS Warren Delano — with all the privileges, immunities, and responsibilities duly thereunto appertaining — during the entire time dealt with in both publications — that is, his service began January 31, 1946, and continued until August 22, 1946, 2 weeks after the August 9th article was published.

In this connection, when all counter-showing from the appellee's side has been thrown out of the appellate-window, as the quoted-rule requires, and both such articles are read and considered together as our Courts have held they should be in comparable situations, it seems reasonably probable that the ordinary reader would regard them as reflecting not only upon Captain Evans' personal and official conduct, but as well upon his competence to continue holding the position as master of a ship in such circumstances. Vernon's 1948 Texas Civil St. Art. 5430; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874; Southern Publishing Company v. Foster, Tex.Com.App., 53 S.W.2d 1014; Moore v. Leverett, Tex.Com.App., 52 S.W. 2d 252, at page 255; McDavid v. Houston Chronicle Printing Co., Tex.Civ.App., 146 S.W. 252, at page 260; 27 Tex.Jur., p. 751, par. 84, foot-note 17, and cited cases; and Ferguson v. Houston Press Co., Tex.Civ. App., 1 S.W.2d 387.

If that be true, then a jury, by all the authorities, was entitled to pass upon the truth or falsity of all the suggestive recitations either of the articles contained.

There can be no doubt that the two articles were in pari materia and constituted continuous publications of the same thing — at least in part — because Mr. Pierce, who was shown to have written the second article on August 9th, admitted that: "It was based in part upon the previous story, and what I got at the hall that night."

Further discussion is deemed unnecessary, since the conclusions stated determine the merits of the appeal; the material evidence upon whether or not it was actionable libel is held to...