Fitzjarrald v. Panhandle Pub. Co.

• Decision Date: 22 February 1950
• Docket Number: No. A-2423,A-2423
• Parties: FITZJARRALD v. PANHANDLE PUB. CO., Inc.
• Court: Texas Supreme Court

Page 499

228 S.W.2d 499

149 Tex. 87

FITZJARRALD v. PANHANDLE PUB. CO., Inc.

No. A-2423.

Supreme Court of Texas.

Feb. 22, 1950.

Rehearing Denied April 19, 1950.

Hamilton & Deaver, Memphis, Sam J. Hamilton, Memphis, for petitioner.

W. J. Bragg, Memphis, Sanders, Scott, Saunders & Smith, Amarillo, Albert Smith, Amarillo, for respondent.

SHARP, Justice.

This is a libel suit, filed by J. O. Fitzjarrald against Panhandle Publishing Company, Inc., to recover actual damages in the sum of $25,000 and exemplary damages in the sum of $10,000. The jury found that petitioner was entitled to actual damages in the sum of $14,333. No exemplary damages were awarded petitioner. Judgment was entered by the trial court in favor of Fitzjarrald for the sum of $14,333, and respondent perfected an appeal to the Court of Civil Appeals at Amarillo. That court reversed the judgment of the trial court, and rendered judgment in favor of respondent. 233 S.W.2d 635.

Petitioner alleged that at the time of the publication of the articles by respondent in its newspaper, The Amarillo Times, concerning petitioner, he was county attorney of Hall County; that said articles complained of were libelous, and were published with intent to injure him, and for the purpose of subjecting him to public hatred, contempt, and ridicule, and, further, for the purpose of impeaching his honesty, integrity, and reputation, both as a private citizen and as a public official; that said statements published by respondent were false, defamatory, malicious, libelous, and therefore damaging to him, and were willfully and maliciously published with express malice towards petitioner, and for the purpose of inferring by innuendo that petitioner was wholly unfit to serve Hall County as county attorney. Petitioner further alleged that there was no just cause for respondent to make such vicious, false statements about him.

Respondent answered, in substance, that the publications about which petitioner complains were privileged, or at least conditionally privileged, in that they were a fair and reasonable report and comment about a matter of public interest and concern, and that such statements were published by respondent without malice, for general information, at a time when petitioner was serving as county attorney and was running for re-election, and that such publications do not create a cause of action for libel. Respondent also alleged that the matters complained of were true, or that respondent, after a careful conscientious inquiry in Hall County, believed them to be true at the time of their publication, and that the articles were not maliciously published, nor were any of the statements published with malice or wrongful intent, or with any intention whatever to injure petitioner. It was further alleged that the contents of a letter that Raymond Ballew sent to some 2500 voters in Hall County on April 19, 1948, making substantially the same statements that respondent had made in its publications, and which publications went into the homes of approximately 100 subscribers in Hall County. It was further pleaded that the statements complained of had been given wide publicity in Hall County generally, both in writing and orally, before such statements had been published in The Amarillo Times.

The facts of the case grew out of a political race in Hall County. During the year 1947 Raymond Ballew, a long-time resident of Hall County, had been several times convicted in the county court of that county for violating the Liquor Law, for which he paid fines totalling more than $8,000. He had announced for Sheriff of Hall County against the incumbent, Earl Hill. Raymond Ballew was conducting a vigorous campaign for the office of sheriff, and was attacking the manner in which the alleged law violators had been apprehended, and the manner in which the Hall County Court had been conducted. Ballew mailed out approximately 2800 circular letters to the voters of that county, in which letters he apparently criticized the sheriff, the county judge, and the county attorney of Hall County, all of whom were running for re-election.

A copy of this letter was sent to The Amarillo Times, and upon receipt of the letter two reporters were sent to Memphis, the county seat of Hall County, to check upon the letter and the political situation in that county. The reporters interviewed Ballew, Sheriff Hill, and several other citizens, including some Negroes. They tried to interview petitioner, but he declined to discuss with them the Ballew letter or the charges made therein. The management of The Amarillo Times thought the subject matter furnished a news story of interest to the public, and as a result published the three articles in question, along with some others. Petitioner based his claim upon the three articles published respectively on April 28, 1948, April 29, 1948, and August 9, 1948. Only a portion of the article published on April 29, 1948, was submitted to the jury. This article and the Ballew letter are set out in their entirety in the opinion of the Court of Civil Appeals, 223 S.W.2d 635, and to save space they will not be repeated here. The trial court submitted to the jury in paragraph 3 of its charge certain portions of the article published on April 29, 1948, as follows:

'You are further instructed that the article appearing in the Amarillo Times dated April 29th, 1948, headlined 'Memphis Political Clique Accused of Kangaroo Court,' a portion of which, to wit, 'But upon the hill the southeast section of town where the negroes live-at least eight negroes interviewed by newsmen told a story of living in terror of the Hall County Attorney and law enforcement officers. They declared sheriff's officers and the county attorney pay almost nightly visits to the hill. They said that Fitzjarrald once fired several shots close to the feet of a negro just to scare him.' is set out in paragraph 8 of the plaintiff's second amended original petition is, as a matter of law, a libel of the plaintiff J. O. Fitzjarrald, and that malice on the part of the defendant, Panhandle Publishing Company, is imputed as a matter of law, to the defendant unless the defendant, Panhandle Publishing Company establishes by the greater weight of the evidence introduced in your hearing that the material charges appearing in such article relating to the plaintiff, J. O. Fitzjarrald, are substantially true, that is, are true in substance.

'Bearing in mind the foregoing instructions, please answer the following questions:

'Question No. 1. From the greater weight of the evidence introduced in your hearing, do you find that the material charges appearing in the newspaper article mentioned in paragraph 3 of this charge relating to the plaintiff, J. O. Fitzjarrald, are substantially true? Answer Yes or No.

'Answer No.

'Question No. 2. How much actual damage do you find, if any, should be awarded to the plaintiff, J. O. Fitzjarrald, by reason of the publication of the article of April 29, 1948? Answer in dollars and cents.

'Answer $14,333.00.'

Question No. 3 reads: 'Was the newspaper article of April 29th, 1948, headlined Memphis Political Clique Accused of Kangaroo Court's published and circulated by defendant Panhandle Publishing Company with 'actual malice' toward the plaintiff J. O. Fitzjarrald? Answer Yes or No.'

To this question the jury answered, 'No.' Therefore no exemplary damages were awarded petitioner.

Respondent filed a motion for an instructed verdict and also a motion for judgment non obstante veredicto, and both motions were overruled. Respondent also presented many exceptions to the trial court's charge, including the questions, explanations, and definitions.

Respondent attacked the judgment of the trial court on the ground that neither the article nor any part thereof was libelous, contending that the article and every part of it was at least conditionally privileged; and, further, that the sole condition of whether the article was privileged is based upon whether it was published and circulated by respondent with actual malice towards petitioner. The jury found that the article had not been published and circulated by respondent with actual malice towards petitioner. Respondent contended in the Court of Civil Appeals that in view of such finding the trial court erred in not rendering judgment for respondent. The Court of Civil Appeals held that the article and every part of it referred to the acts of petitioner and other officials, and that it was conditionally or qualifiedly privileged, and that in view of this holding and the finding of the jury that no actual malice existed, it reversed and rendered the judgment of the trial court.

The trial court limited its question only to the alleged libelous statements appearing in the newspaper article copied in paragraph 3 of its charge; and since the trial court did not submit to the jury questions relating to other portions of the article, and no request was made by petitioner to submit other portions of the article, or any other articles published by respondent, this Court is limited to a consideration of the language contained in paragraph 3 of the court's charge.

The question presented here is whether the language printed without actual malice justified the recovery of a judgment for libel in favor of petitioner and against respondent.

The Legislature of this State announced the rule as to what constitutes libel by the enactment in 1901 of Article 5430, of Vernon's Texas Civil Statutes, 1948, which reads: 'A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person...