Herald News Co. v. Wilkinson

• Decision Date: 16 February 1922
• Docket Number: (No. 1279.)
• Citation: 239 S.W. 294
• Court: Texas Court of Appeals
• Parties: HERALD NEWS CO. v. WILKINSON.<SMALL><SUP>*</SUP></SMALL>

239 S.W. 294

HERALD NEWS CO. v. WILKINSON.^*

(No. 1279.)

Court of Civil Appeals of Texas. El Paso.

February 16, 1922.

Rehearing Denied March 30, 1922.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by Maria Wilkinson against the Herald News Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Jackson, Isaacs & Fryer, of El Paso, for appellant.

Neill & Armstrong, of El Paso, for appellee.

WALTHALL, J.

Appellee, Maria Wilkinson, a feme sole, brought this action against appellant, Herald News Company, a Texas corporation, to recover compensatory damages by reason of the publication in its newspaper, the El Paso Herald, of certain statements of and concerning her and alleged to be defamatory and libelous, and stating the articles published.

Appellant answered by general demurrer, special exceptions, general denial, special denial that the publication of said articles meant to say and was understood to mean that appellee was a German spy, and by special plea alleged that the published articles were privileged; by special pleas alleged that the articles were true, and in the alternative, in mitigation of damages, appellant alleged its good faith in the publication of the articles.

The case was tried with a jury and submitted upon the general issue. The jury returned a verdict in favor of appellee and assessed the damages at $8,500, for which amount judgment was rendered.

Appellee is a citizen of the United States and resides at Nogales, Ariz. The publication of the statements or articles complained of are lengthy, covering about 21 pages of the record. Separate portions of the articles were published by appellant in the El Paso Herald on the 16th, 18th, and 19th days of November, 1919, the total circulation of the paper at that time being about 25,000 copies, of which the circulation of the Herald in Arizona was about 3,700, and of that number there was a circulation of about 290 copies in Nogales, Ariz., and Sonora, Mexico, just across the line.

The published articles upon which the suit was based, abbreviated, contained, substantially, the following:

"American Agent Cures Gen. Calles and Falls in with Female German Spies Smuggling Goods to Mexico.

"Dr. Paul Bernardo Altendorf, Late `Agent Al' in the Military Intelligence Department of the U. S. Army. Twelfth Installment." (Omitting the statement of the treatment of General Calles the article proceeds:) "While all this was going on I was living at Hotel Cohen. On returning to the hotel one day, Marks, the proprietor introduced me to two handsomely dressed women, remarking that I was a `good doctor,' who was also a `good German.' On the strength of this recommendation, the elder of the two, Maria Haas, promptly asked me to see her two year old boy who was ill. * * * In with the smugglers. Her (Maria Haas's) companion, Maria Wilkinson, * * * she said was the widow of an American miner who helped her smuggle goods across the border for German firms. She was going to make a pretense of offering the goods in Hermosillo, displaying them in the hotel sample rooms to deceive any chance American agents who might be about, then she would pack them up and deliver them to the German consignees at Guaymas and elsewhere down the line. * * * She (appellee) told me all about how she was taking the goods to Culiacan to be delivered, but like the Haas woman, she would make a pretense of offering them for sale at Hotel Rosales there. * * *

"Helps Pack Smuggled Goods.

"Her six trunks contained 74 dresses, 18 silk skirts, 60 dozen pair of silk stockings, 37 silk waists, 45 cotton waists, 100 gross of rubber nipples (Germany was very short of rubber then, and this part of the consignment was intended to be forwarded via Spain and submarine to the Fatherland) [the publication enumerating many other articles of goods]. * * *

"Locates Smuggled Goods.

"After reaching Guamas I saw the goods, or a part of them at least, that I had packed a few evenings before, displayed in the windows of Melchoir, successors and of Gaston Schwab, the latter a good German Masquerader as a Swiss firm. * * * She (Maria Haas) related with glee how she had posed as a `society' woman opening a luxurious mansion in San Francisco with the fascinating Wilkinson as a lure, and gave lavish entertainments, all paid for with funds furnished by Von Bernstorff, making a point of inviting army and naval officers to these functions, and with the aid of numerous German agents, pumping them for information calculated to further the progress of Kultur. * * * (Here the article goes into detail as to the movements of Maria Haas and appellee, and how he got acquainted with prominent German people through them, which, for brevity, we omit. Proceeding the article stated:) In the next issue Dr. Altendorf will tell of further relations with the women spies. * * * She (appellee) said she was to return to the border in six weeks with Maria Haas for another consignment of goods for blacklisted German firms which would be smuggled, or passed through the custom house if there was no other way. * * * (We here omit a lengthy statement of a Yaqui attack on the train and other matters not important to this investigation.)"

"Maria (appellee), Mrs. Cohen, the landlady, and I breakfasted together. Maria (appellee) announced that she was going to Nogales, January 3, on another smuggling excursion. * * * She had been requested to bring in as many revolvers as she could since she could sell them at a good price to the Mexicans. I tried to persuade her not to go, * * * for I knew she was clever at the smuggling game, * * * but Maria's motto was, `business before matrimony.'"

The evidence discloses some features of the publications we will restate somewhat in detail under the propositions to which they refer.

The first, second, and third propositions are directed to the refusal of the court to grant, on motion, a postponement or continuance of the case; but, having concluded that the case should be reversed and remanded on other grounds, we do not discuss the propositions in detail, but overrule the assignments because without merit.

The publication of the matters found in the record are not privileged, under our statutes, as insisted by appellant under its fourth proposition.

The fifth proposition complains of the action of the court in sustaining an exception to the portion of appellant's answer in which it is alleged that appellee was consorting and confederating with persons other than those named in the published articles, the truth of which consorting and confederating was alleged by appellant as a defense. Appellant pleaded as defensive matter:

"That the plaintiff was at or about said time consorting and confederating with other persons whose names defendant does not know, who were engaged in the business of exporting goods from the United States for delivery to the enemies of the United States with whom residents of the United States were forbidden by law to trade."

Appellee excepted to the above portion of the answer on the ground that same was too vague; the persons with whom appellee was consorting and confederating with were not named; the articles exported are not stated; the enemies of the United States are not named. We think there was no error in sustaining the exception. Also, it is not a defense to libel that the plaintiff has been guilty of offenses other than those imputed to her, even though the offense was of a similar character. Sun Printing & Pub. Ass'n v. Schenck, 98 Fed. 925, 40 C. C. A. 163. The plea must justify the charge alleged. Dowie v. Priddle, 216 Ill. 553, 75 N. E. 243, 3 Ann. Cas. 526; Downs v. Hawley, 112 Mass. 237.

Appellee pleaded as libelous that appellant published of and concerning her that Altendorf purchased and presented to her a wrist watch and a bottle of perfume with the view of obtaining information from her, and that she accepted same with every indication of appreciation; she believing at the time that he was a German agent and German sympathizer. By the innuendo immediately following the above-published statement, appellee alleged that by the statement it was meant that appellee was a German agent and spy and that she had information having to do with German activities, affairs, and intentions hostile to the United States.

Appellant pleaded in defense that said Dr. Altendorf did purchase a wrist watch and bottle of perfume and present same to appellee, and that through same he endeavored to obtain from her information concerning German activities; that appellee received and accepted said presents, and associated with said Altendorf, and at the same time she so received said presents and associated with said Altendorf she believed him to be a German agent and German sympathizer. The court sustained an exception to that portion of the answer on the ground that same constituted no defense, and could not be considered in justification or mitigation of the compensatory damages sued for and was otherwise immaterial and irrelevant. The ruling of the court is made the basis of the sixth proposition.

Appellant's contention is that the fact pleaded, if true, would have been a strong circumstance tending to show that appellee was consorting and co-operating with German enemies of the United States. Appellee suggests that the tendered and stricken answer does not present a defense to the action for compensatory damages, and so falls short of a justification. While the published articles were not privileged, nor were they qualifiedly privileged, yet the truth of the facts stated, we think, would be defensive to at least a portion of the defamatory matter charged.

It has been held by a number of our courts, in this state, including the Supreme Court, that the truth of the facts published is a sufficient defense to an action for libel. Patten v. Belo & Co., 79 Tex. 41, 14 S. W. 1037; Cotulla v. Kerr, 74 Tex. 90, 11 S. W. 1058, 15...