Flournoy v. Story, 12398.

• Decision Date: 13 December 1930
• Docket Number: No. 12398.,12398.
• Parties: FLOURNOY v. STORY.
• Court: Texas Court of Appeals

37 S.W.2d 272

FLOURNOY v. STORY.

No. 12398.

Court of Civil Appeals of Texas. Fort Worth.

December 13, 1930.

Appeal from District Court, Wichita County; W. W. Cook, Judge.

Action by A. M. Flournoy against J. L. Story. Judgment for defendant, and plaintiff appeals.

Reversed and rendered.

Taylor, Muse & Taylor, of Wichita Falls, for appellant.

Fischer & Fischer, of Wichita Falls, for appellee.

CONNER, C. J.

Appellant, A. M. Flournoy, instituted this suit against J. L. Story to recover actual and exemplary damages in a large amount for libel based upon a letter written by Story which was attached to the plaintiff's petition.

The trial resulted in a judgment that plaintiff, A. M. Flournoy, take nothing by reason of his suit, and that defendant, J. L. Story, be discharged with his costs. From the judgment so entered, plaintiff has duly prosecuted an appeal to this court.

The case was tried before a jury upon special issues, which, together with the answers thereto, are as follows:

"1. Do you find from a preponderance of the evidence that the statements made by the defendant of, about or concerning the plaintiff were true?

"Answer: No.

"2. If you have answered issue No. `1' `yes,' you need not answer any subsequent issues, but if you have answered the same `no,' then answer:

"Find from a preponderance of the evidence what amount, if any, if paid now, would reasonably compensate the plaintiff for the actual damages suffered by him, if any?

"Answer: None.

"3. In answering the above issue, you may take into consideration the occupation, age and standing of plaintiff and all of the surrounding circumstances, as well as any loss of credit, if any, positive or mental anguish, if any, arising therefrom or caused thereby, if you find that he suffered any pecuniary loss, together with any loss of reputation or standing among the people who know him and you may consider all of these matters in fixing the amount of damages, if any.

"3. Do you find by a preponderance of evidence that defendant Story was prompted by ill-will, hatred or malice towards the plaintiff at the time he made the statement concerning the plaintiff, if you have found the statements so made by the defendant Story to be untrue.

"Answer: Yes.

"In answering the above issue you are instructed that by the term `malice' as used in this charge, is meant wrongful acts done or words spoken intentionally, towards, about or concerning a person without just cause or excuse, the person uttering same being at the time actuated by feeling of hatred or ill-will.

"4. If you have answered issue No. 3 `no,' then you need not answer this issue, but if you have answered `yes,' then answer:

"Find by a preponderance of evidence what sum of money would reasonably punish the defendant for having made such wrongful and malicious statements, if you find that he made any concerning the plaintiff.

"Answer: $600.00.

"The damages referred to in special issue No. 4 is known as `exemplary damages,' and as used in this charge is meant that punishment to which a person is subjected for the wilfull, wanton or reckless disregard of a persons' rights, which may be prompted by malice, ill-will or hatred. And if you find that at the time defendant made the statements that he believe the same to be true, then you will not find exemplary damages against the defendant as referred to in issue No. 4."

On the return of the verdict the plaintiff by written motion requested the court to enter judgment in his favor for $600, based on the verdict of the jury. This motion being overruled, the plaintiff further requested the court by motion that a mistrial be declared and the cause set down for trial at some future day. This was also overruled, and the court entered judgment as stated in the beginning of this opinion.

There is no brief in behalf of appellee, and the principal contention of appellant is that the court erred in overruling the motion to enter judgment in his favor. From the court's instructions it is evident that he assumed that appellee in fact wrote and circulated the letter alleged to be libelous, and that in fact the letter was libelous per se, and appellant makes no complaint of the court having so assumed.

Article 5430, Rev. Civ. Statutes, defines libel as follows: "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 to public hatred, ridicule, or financial injury."

The letter upon which the plaintiff predicated his suit and which, as stated, was attached to his petition, is quite voluminous, but we think it sufficient that, among other things, it in effect...