Express Printing Co. v. Copeland

• Decision Date: 16 June 1885
• Docket Number: Case No. 5140.
• Citation: 64 Tex. 354
• Parties: EXPRESS PRINTING CO. v. JOHN H. COPELAND.
• Court: Texas Supreme Court

64 Tex. 354

EXPRESS PRINTING CO.

v.JOHN H. COPELAND.

Case No. 5140.

Supreme Court of Texas.

Jun. 16, 1885.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

On February 23, 1883, appellee brought this suit against appellant to recover damages for a libel; alleging that on the 7th day of January, 1883, he then being a candidate for the office of mayor of the city of San Antonio, which election was fixed for and did take place on the 8th day of January, appellant published in its newspaper, the “San Antonio Express,” a false, wicked and malicious libel, with the intent and for the purpose of injuring him. The purported libel is as follows:

“As Mr. Copeland is a candidate for mayor, and as that officer has the general management of our finances, it is a legitimate question for the people to ask how he has managed affairs of others heretofore placed in his hands. We know very little of such transactions, though the records show one case that may give some valuable hints to the voters. We will state the facts, allowing the reader to make his own comments: In 1881, T. P. Aplin died, and Mr. Copeland was appointed administrator of his little estate, the total valuation of which was $2,579.90. The administration was closed November 23, and the report shows a total expense of administering on the estate of $2,579.90, to have been $882.28, and the administrator was allowed to retain the balance of the estate, $1,777.62, subject to the order and instructions of the heirs. What such retention cost the heirs we do not know, but from the charges of administration, it was doubtless a pretty heavy sum. The heirs, no doubt, were afraid to give any instructions through fear that the balance of the estate would not pay the fees accruing for the money left in the administrator's hands.”

Prayer for judgment in the sum of $25,000.

Appellant answered by general and special exceptions, general denial, also specially denied the meaning attributed to the statement, as given in the petition, and also that appellant published the statement believing it to be true; that the facts were furnished by others who assured the appellant of their truth, and that the same was published in good faith, without any malice or ill-will against appellee, and under the honest belief that it was matter that it was proper to be made known in view of appellee's candidacy for the office of mayor.

A trial was had December 24, 1883, which resulted in a verdict and judgment against appellant for $2,500, and from which this appeal was taken and perfected.

Simpson & James and Shook & Dittmar, for appellant, cited: Ormsby v. Douglass, 37 N. Y., 482, 483;Lewis & Herrick v. Chapman, 16 N. Y., 372; Thompson v. Dashwood, L. R., 11 Q. B. Div., 43; Am. Law Register, January, 1884, pp. 20, 25, and see cases there cited, particularly Clark v. Roe, 4 Ir. C. L., 1; Wait's Actions and Defenses, vol. 4, pp. 282, 288, 306; Munster v. Lamb, recent English decision, reported in Am. Law Reg. of January, 1884, p. 12; art. 1262, R. S.; Klink v. Kolby, 46 N. Y., 427; Wilson v. Robinson, 7 Q. B., Ad. & Ell. (N. S.), 68 (7 Am. Rep., 369); Sayles & Bassett, Tex. Pl. and Pr., § 647; Gabel v. Weisensee, 49 Tex., 142;Van Wyck v. Aspinwall, 17 N. Y., 193; 2 Greenl. Ev., § 421.

J. H. McLeary and A. W. Dillard, for appellee, cited: Cooley on Cons. Lim., sec. 504; Starkie on Slander, p. 140; Cooley on Torts, 204 et seq.; Townshend on Slander and Libel, secs. 176, 177; 4 Black. Com., p. 150; R. S., ch. I, title XVI; Tex. Crim. Code, arts. 616, 622, 628, 629, 630, 642, 643 and 786; Ross v. Fitch, 58 Tex., 151;Smith v. State, 4 Tex., 297;Yarborough v. Tate, 14 Tex., 486;Linney v. Maton, 13 Tex., 453;Holt v. Parsons, 23 Tex., 18, 19 and 20;Hunt v. State, 7 Tex. Ct. App., 212;Thrasher v. State, 3 Tex. Ct. App., 281;Houston County v. Dwyer, 59 Tex., 114, and cases cited; Mercer v. Hall, 2 Tex., 285 to 288; 2 Addison on Torts, secs. 928 and 1089, pp. 307 and 311.

WATTS, J. COM. APP.

Elsewhere the rule seems well established that in this class of cases, where the defendant justifies by alleging the truth of the libelous matter, and fails to establish the truth of the plea, this may be considered as a circumstance tending to show malice. But our statute gives the defendant the right to plead, in his answer, as many several matters, whether of law or fact, as he may deem necessary to his defense, and which are pertinent to the cause; provided that he shall file them all at the same time and in the due order of pleading.

In Fowler v. Davenport, 21 Tex., 633, in construing that provision of the statute, Justice Roberts remarked that: “The general and absolute right, here given, to plead ‘several matters' is unlimited, if they are pertinent to the cause, filed all at the same time, and in the due order of pleading. There is no qualification or abridgment of this right in matters that are inconsistent. Such a qualification would destroy the right.” The conclusion reached in that case was that one plea could not be used as evidence or as an admission, for the purpose of destroying another inconsistent plea contained in the same answer.

It would seem, therefore, that in this character of suit, where the defendant has asserted several inconsistent pleas in the same answer, and among them one justifying, by asserting the truth of the supposed libelous matter, to permit that plea to be taken as a circumstance tending to establish malice, on the ground that the plea was not sustained by the evidence, where probable cause and the non-existence of malice has been asserted in the answer, and is pertinent to the cause, would, in the language of Justice Roberts, “destroy the right.”

Here the court instructed the jury that appellant had pleaded “the truth of the publication in justification, and if the truth of the publication had not been established by the evidence, then to consider the fact of its having been pleaded as a circumstance tending to show malice, and to aggravate the injury done to plaintiff.”

There exist two fatal objections to this instruction: first, there is no plea contained in the answer, asserting the truth of the publication as a defense. Townshend on Slander, etc., § 357...