Freeman v. Schwenker, 8005.
| Decision Date | 02 July 1934 |
| Docket Number | No. 8005.,8005. |
| Citation | 73 S.W.2d 609 |
| Parties | FREEMAN v. SCHWENKER. |
| Court | Texas Court of Appeals |
Appeal from District Court, McCulloch County; E. J. Miller, Judge.
Action by Norman K. Freeman against H. F. Schwenker for libel. From a judgment for plaintiff for only nominal damages, he appeals.
Reversed and remanded.
Baker & Baker, of Coleman, for appellant.
Adkins & Adkins, of Brady, for appellees.
Suit was by appellant against appellee, sole owner and publisher of the Brady Standard, a newspaper published in Brady, Tex., for actual and exemplary damages, for libel. The libel alleged was in the publication of an article, copied from the San Antonio Light, reporting the proceedings in the federal court in a case wherein the Commercial National Bank of Brady had sued the United States Fidelity & Guaranty Company for $90,000 on the fidelity bonds executed by said company as surety for the officers and employees of said bank. Eight officers and employees were named, including appellant, as having misappropriated approximately $120,000 of the funds of said bank, and the statement made that all of them had theretofore been indicted by the grand jury in connection with such shortage. The appellant had not, however, been so indicted. The article in question was published on February 20, 1931. Shortly thereafter, upon discovery of such mistake, appellee published in the same paper a correction of said article as to appellant.
Appellant was a bookkeeper in said bank and in its employ from February 3, 1930, to August 13, 1930. The shortage was discovered in July, 1930, and the audit showed that in April and May appellant had withdrawn from said bank by checks drawn by him, but not charged to his account, sums aggregating $280, with which shortage he was charged and which he had never made good. On August 13, 1930, all of the officers and employees of said bank were discharged, including appellant. While not shown by proof, it may be inferred that the other seven named in the newspaper article were indicted. One of them testified in the instant case and admitted that he had been convicted. While the proof does not clearly show that appellant knowingly participated in the methods resorted to by the guilty parties to cover up and conceal the shortage, the evidence was such that the jury could readily have found that he had.
It was admitted at the outset of the case that appellant had not been indicted. At the close of the evidence the court submitted to the jury the following issue only: "What amount do you find from a preponderance of the evidence would compensate the plaintiff for the actual damages if any, sustained by him by reason of the publication of the article admitted to have been published by the Defendant in the Brady Standard on or about February 20th, 1931?" To which the jury answered "None."
Appellant objected to this issue for failure to instruct the jury that he was entitled to recover actual damages, and requested an instruction to the jury to return a verdict for such actual damages as they found he had sustained as the result of the publication of said article. The objection was overruled and the requested charge refused. That this was error is the first contention made by appellant.
After the return of said verdict, the trial court, evidently having concluded that appellant's contention here made was correct, notwithstanding said verdict, and on his own motion, entered judgment for appellant for $1 as nominal damages, and taxed against each party the costs incurred by him. His action in doing so constitutes the second ground for reversal here presented by appellant.
It is now settled law that it is libelous per se to publish a false statement that a person has been indicted for a criminal offense, and one so falsely charged is entitled to recover, as a matter of law, the actual damages suffered as a result of such libelous publication. George Knapp & Co. v. Campbell, 14 Tex. Civ. App. 199, 36 S. W. 765; Wortham-Carter Co. v. Littlepage (Tex. Civ. App.) 223 S. W. 1043; Express Publishing Co v. Isensee (Tex. Civ. App.) 286 S. W. 926; 36 C. J. 1197; 27 Tex. Jur. 596. It having been admitted by appellee that appellant...
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...Insurance Co. (Tex.Civ.App.) 96 S.W.2d 793; Hines v. Parks (Tex.Com.App.) 96 S.W.2d 970; Brown v. Rentfro, 57 Tex. 327; Freeman v. Schwenker (Tex.Civ.App.) 73 S.W.2d 609; North v. Atlas Brick Co. (Tex.Com. App.) 13 S.W.2d 59; article 2211, Civil Statutes (as amended by Acts 1931, c. 77, § 1......
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