Holt v. Parsons

• Decision Date: 01 January 1859
• Citation: 23 Tex. 9
• Parties: JOHN S. HOLT, SEN., AND OTHERS v. BENJAMIN S. PARSONS.
• Court: Texas Supreme Court

23 Tex. 9

JOHN S. HOLT, SEN., AND OTHERS

v.BENJAMIN S. PARSONS.¹

Supreme Court of Texas.

1859.

A resolution adopted by a board of trustees, asserting in effect, that B. S. P., their former treasurer, had, as such, collected the funds due to the church, of which they were trustees, resigned the office of treasurer, retained all the funds collected as aforesaid, and applied them to his own use and account; and, though remonstrated with, on account of his acts and doings, had wholly disregarded the efforts of the board, to bring about an amicable adjustment of their affairs; wherefore the board censured his conduct, and pronounced him a defaulter to the church in the sum of one hundred and twenty-four dollars and twenty-five cents; is calculated to bring him into disrepute with his neighbors; and, if made and published maliciously, will unquestionably constitute a libel.

A malicious intent on the part of the defendant, who makes or publishes the writing complained of, is a necessary ingredient, to support an action for libel, and is one of the facts to be found by the jury; yet, where the writing is defamatory and found to be false, that is evidence of the malicious intent.

In order to weaken or counteract a prima facie case of malice, thus established, evidence is admissible to show that it was a privileged communication; but to rebut and entirely remove the inference of malicious intent (where the writing is both defamatory and false) upon the ground of a privileged communication, it must appear: 1st. That the party had a right, or was under some obligation to give the information, which was believed to be true. 2d. The mode and style of communication must not contain intrinsic evidence of malicious intent, over and above what is reasonably necessary and proper in conveying the information. 3d. It must be free from attendant and concomitant extrinsic circumstances, showing a malicious intent.

Where the evidence showed none of the grounds above specified for rebutting the inference of a malicious intent, held, that it was not error to refuse to give charges asked for by the defendants, presenting the defense of having made and published the writing in question as a privileged communication without malice, and requiring proof by the plaintiff of express malice on the part of the defendants.

The fact, that the defendants, who adopted the resolution, were members of a board of trustees for the church, did not afford such an occasion, nor give them such authority (they having the management only of the secular affairs of the church, the plaintiff being no longer a member nor treasurer of the board, and they having no cognizance over any matters pertaining to church discipline), as to make privileged the censure, or defamatory statement contained in the resolution; and a demurrer to the answer of the defendants, as a plea of privilege, excepted to, because of such want of authority, was properly sustained as to privilege, and proof, therefore, not required to be made by the plaintiff, of express malice on the part of the defendants.

ERROR from Galveston. Tried below before the Hon. Nelson H. Munger.

This suit was brought on the 22d day of October, 1853, by the defendant in error against John S. Holt, Sen., D. D. Atchison, E. P. Hunt, plaintiffs in error, and John Robertson, for an alleged libel, claiming $5,000 damages.

The petition alleged that, on and prior to the 16th day of July, 1852, the plaintiff was, and had been a member, and the treasurer of the Galveston Presbyterian Church, and on that day, his resignation, as treasurer, was accepted by the board of trustees of the church, of which board the defendants were members. It further charged, that on the 26th day of October, 1852, the defendants “falsely, wickedly and maliciously, did compose and publish, and cause and procure to be published, of and concerning your petitioner, and concerning his conduct as treasurer aforesaid, a false, scandalous, malicious and defamatory libel, containing the false, scandalous, malicious, and defamatory, matter following:” [Here followed the writing set forth in the opinion as the foundation of the action.]

By an amendment to his petition, the plaintiff alleged that the board of trustees was not required, by the regulations of the church, to be composed of the members thereof; that their power and duty was confined to the secular affairs of the church, and that the board had no authotity to try, censure or reprimand a member of the church for misconduct, such power being vested in the session of the church, composed of its elders and pastor.

The defendants filed a demurrer, and assigned as special causes: 1. That the act complained of was that of a body corporate, viz., the “Board of Trustees of the Galveston Presbyterian Church,” and the defendants were not individually responsible for the same. 2. That the acts complained of were official acts, as members of said board of trustees, for which defendants were not personally responsible.

They also filed separate answers, alleging, in substance, that for a long time previous to the 16th day of July, 1852, the plaintiff and the defendants, Holt, Atchison and Robertson, were members of the Galveston Presbyterian Church; that said parties and defendant Hunt, and James Sorley, were trustees appointed by said society to hold its property and transact its business; that the plaintiff was the secretary and treasurer of the board of trustees, and, as such, accountable to the said trustees for all moneys passing into his hands, and was in duty bound to render to them an account thereof, with the proper vouchers for all expenditures authorized by the said trustees, whenever required. That all of said parties, so being members of the society aforesaid, as trustees of its property, and for business purposes, were liable and bound to regard and obey the laws, rules and usages of the said church; that on the ____ day of July, 1852, the plaintiff, disagreeing with the other members of the board, in acting upon some of the business affairs of the church, resigned as trustee, and as secretary and treasurer of the board, which resignation was accepted. That it being necessary, as the trustees considered, to settle the account of the plaintiff, it was referred to a committee composed of the defendants, Robertson, Hunt and Atchison; which committee, at a meeting of the trustees, on the 19th day of July, 1852, submitted a report thereon, stating that the plaintiff had misapplied funds belonging to said church, collected for the rent of pews, which, by the custom and usage of that and other Presbyterian churches, were appropriated and set apart to pay the salary of the clergyman of said church, by his collecting the same, and passing said funds to the credit of the church, in his own unadjusted accounts, although such usage and custom was well known to the plaintiff, and binding upon him. That the defendant Holt, was appointed to call on the plaintiff, and request him to pay over the money collected for the pew rents during the preceding year; that in compliance with the appointment, Holt did call on him, and requested payment, which he refused and neglected to make. That at a meeting of the trustees on the 22d day of July, 1852, the defendant Hunt, and Sorley, were appointed a committee “to audit the account of the plaintiff, rendered by him against the church, and, if practicable, to effect a settlement with him.” That on the 13th day of August, 1852, this committee reported, showing a balance to the church, of moneys misapplied, amounting to $124.25; which report was approved by the trustees on the 6th day of October, 1852, and, as defendants in their answer averred, “contains an explanation or statement of the account of the plaintiff, and with the record thereof, and the other proceedings in the matter founded thereon they bring into court, showing the facts aforesaid.” That the defendant Holt, at the request of the trustees, and actuated by kindness to the plaintiff, requested him to make an explanation to the trustees, for the purpose of settling the differences between them, but the plaintiff refused to make any. That the trustees having, in vain, called on him to explain his account, produce vouchers, or pay the balance due, and exhausted all means to induce the plaintiff amicably to adjust the dispute, did, on the 25th day of October, 1852, in executing the trust reposed in them by the said church, in good faith, believing the same to be just and true, as they were bound and had a right to do, and without malice or design to injure the plaintiff, and from a sense of duty, adopt the preamble and resolutions complained of as libelous. And that the matters therein contained were not libelous, but true and just, or by them believed to be so; and that the same were never promulgated or communicated, except to members of the church who had an interest therein, and a right to know the same.

The answer also denied all the facts alleged by the plaintiff, which were not admitted in the foregoing answer.

To the answers of the defendants the plaintiff excepted: That they were not good, as pleas of privilege; because it did not appear that the words complained of were uttered on a justifiable occasion; because it did not appear that said board had power to censure or reprimand the plaintiff, nor to brand or publish him as a defaulter;--their legitimate authority being to order suit against him for the amount claimed, or to accuse him before the session of the church. Also, that said answers were bad, as pleas of justification, because, it was not shown wherein the charges against the plaintiff were untrue.

The court overruled the demurrer of the defendants to the petition; sustained the plaintiff's demurrer, to the answers, as setting up a privileged communication, and overruled it as to the remaining exception.

On the trial, the defendants asked the court to charge the jury:...