Gibler v. Houston Post Co.

• Decision Date: 23 January 1958
• Docket Number: No. 13175,13175
• Citation: 310 S.W.2d 377
• Parties: Frank GIBLER, Appellant, v. The HOUSTON POST COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 377

310 S.W.2d 377

Frank GIBLER, Appellant, v. The HOUSTON POST COMPANY et al., Appellees.

No. 13175.

Court of Civil Appeals of Texas, Houston.

Jan. 23, 1958.

Rehearing Denied Feb. 20, 1958.

Ernest S. Fellbaum, Houston, for appellant.

Jack Binion and Lyon L. Brinsmade, Houston, and Butler, Binion, Rice & Cook, Houston, of counsel, for appellees.

WERLEIN, Justice.

This suit was filed by appellant, Frank Gibler, against The Houston Post Company and Owen P. Flaherty, appellees, alleging that on or about August 23, 1955, appellee, The Houston Post Company, acting by and through its agent and employee, the appellee, Owen P. Flaherty, using the facilities of its television station, KPRC-TV, at about 10:30 p. m. on said date, then reading from a prepared written script, did publish and cause to be published words of and concerning the appellant which were wholly and completely untrue and false and which defamed and libeled appellant; said words being substantially as follows:

'Mayor Hofheinz has completed his investigation into the so-called international incident at the Houston airport and has found that there was in fact no international incident at all. It was just the fabrication of a bystander, who gave out an erroneous report. And so, after investigation by authorities and the State Department and the Civil Aeronautics Board and the City of Houston, it develops that there was no international incident and no racial discrimination. It was just a case of a person with a loose tongue, given to fabrication, circulating an erroneous report.'

Appellant alleged further that throughout his adult life he had pursued the business and profession of newspaper work, reporting, publicity and public relations, and enjoyed a reputation for ability and integrity in his work and for accuracy and reliability in his reporting of news, and that he had factually and truthfully reported an incident which occurred at the International Airport at Houston which he personally observed, wherein the Ambassador from India to the United States, upon visiting the Horizon House Restaurant at the Airport, was asked by an employee of the restaurant to move from the public section of said restaurant to a private dining room used by members of the Negro race because said employee mistook said person for a member of that race.

Appellant further alleged that the statements of and concerning him, and accusing him of fabricating or lying, in connection with his report of the incident, were intended to, and did, apply to plaintiff and no other person, and his family, friends, acquaintances and employers, as well as the average viewer and listener, were led to believe and did actually believe that the malicious and libelous publication in question referred to appellant. He further alleged that upon occasion of the publication of such libelous statements concerning him, there was widespread publicity in the newspapers and radio and television stations in the City of Houston, Harris County, Texas, expressly identifying and naming appellant as the person referred to as making the report mentioned in the libelous and defamatory statements sued upon. In such connection the appellant further pleaded that The Houston Post Company, on the same date, in its newspaper, The Houston Post, named the plaintiff as the person who had made such report, being the report referred to in said libelous words.

Appellant then pleaded that he was now and had been for many years in the field of public relations, a profession in which factual and truthful statements of facts and events are an integral part, and that the alleged dafamatory words and publication irreparably injured him in his business and profession, and that his reputation and character had been injured and he had been exposed to public hatred, contempt and ridicule and his honesty, integrity and reputations were impeached, and that he had been caused to suffer mental anguish, embarrassment, shame and distress. He further pleaded that the statements complained of were malicious and made in utter disregard of his rights and in a degree of carelessness amounting to gross negligence, for which he was entitled to recover exemplary damages.

To appellant's petition appellees filed their first amended original answer, denying appellant's allegations, and averring that the appellees did not at any time mention, specify, name or refer to appellant in any way or manner. They then alleged that Mayor Hofheinz, the Mayor of the City of Houston, had conducted an official investigation in regard to the incident in question, and that later in the day of August 23, 1955, the Mayor, through his office, issued a statement and conclusions regarding his investigation, and that based upon said statement and conclusions issued by the Mayor of the City, appellee Pat Flaherty did broadcast over the Station in question the following:

'Mayor Roy Hofheinz has completed his investigation of the so-called international incident involving the Indian Ambassador to the United States * * * and the Mayor has found that it was no international incident at the Houston International Airport yesterday afternoon * * * it was the fabrication of a bystander, who gave out an erroneous report * * *. In other words, the case involving the Indian Ambassador to the United States, and his secretary, was just as the Ambassador reported today from Mexico City * * *. They were treated with the fullest courtesy and esteem by Mrs. Mary Alley * * *. They were directed to the special dining room, reserved for distinguished visitors at the airport * * *. And they were completely satisfied with the treatment, service and food.

'Mrs. Alley also issued a statement, through the Mayor's office, saying, she felt the Ambassador and his secretary were distinguished visitors * * * And that she acted accordingly * * * She made a special point to serve them properly.

'Mr. & Mrs. Percy Strauss of Houston, visited with the Ambassador and his secretary, in the private dining room.

'So, after apologies from the American State Department * * * Mayor Hofheinz * * * And, an investigation by the Civil Aeronautics Department, it develops that there was no international incident * * * No racial discrimination * * * It was just a case of a person with a loose tongue, given to fabrication * * * And circulating an erroneous report.'

Appellees then alleged that the broadcast was based upon the report as given by Mayor Hofheinz at his office, and that the same was a matter of public concern, made in the utmost good faith, and that such broadcast could not be construed by innuendo or otherwise as pertaining to appellant. They further pleaded that such broadcast was privileged, at least conditionally so, under Article 5432, Sec. 4, Vernon's Annotated Civil Statutes. They also pleaded that said broadcast constituted a reasonable and fair comment or criticism of matters of public concern which were published lished and broadcast for general information, and that they had used due care in investigating and commenting upon the Mayor's investigation, and that said broadcast was made without malice and was a factual and truthful statement of the Mayor's report.

They further alleged that the Houston Post did on the morning of August 23, 1955, preceding the broadcast that night, carry a news story with regard to the incident in the Horizon House Restaurant, in which the names of Gibler and other persons were mentioned.

Neither the petition nor answer in the case was sworn to, nor was any affidavit filed by appellees denying the allegations of appellant's petition. The depositions of both appellant and appellee Flaherty were taken and are before this Court. Appellees filed an unsworn motion for summary judgment, in which they alleged that the pleadings, depositions and testimony on file showed that there was no genuine issue as to any material facts and that they were entitled to a judgment as a matter of law, under the provisions of Rule 166-A, Texas Rules of Civil Procedure. The motion for summary judgment was granted, and the trial court decreed that the appellant take nothing by his suit.

Appellant duly perfected his appeal and the case is now before this Court for review.

The sole question before this Court is whether upon the pleadings in the case and the depositions and exhibits on file, the trial court erred in finding as a matter of law that there was an absence of any genuine issue as to the material facts of appellant's alleged cause of action for libel.

Appellees have submitted two separate grounds in support of the trial court's judgment, their first counter-point being that the trial court properly rendered such summary judgment because neither the news broadcast of Flaherty nor the news story in the Houston Post, named or referred to appellant Gibler as the person circulating the erroneous report, and there was no evidence to justify a conclusion that he was.

It is true that no name was mentioned in the news broadcast in question. It is also true, contrary to appellant's pleading, that the item in the Houston Post on the morning of August 23, 1955, did not state that appellant was the party who reported the incident to the paper. Several persons were spoken of in such news article. It stated that 'Witnesses (plural) to the incident said that the Ambassador was not receiving the VIP treatment but was served privately because a restaurant employee thought he and his secretary were Negroses.' It also stated that 'Air port employees said that the small private dining room is sometimes used for visiting celebrities who desire privacy but that it is also used to accommondate Negroes on the infrequent occasions that they ask for service in the airport restaurant.' It further stated that Jim Gibson, Station Manager for Pan American World Airways, was present but refused to comment for publication; that Frank J. Russell, proprietor of the restaurant, could not be...