Hornby v. Hunter

• Decision Date: 03 December 1964
• Docket Number: No. 81,81
• Citation: 385 S.W.2d 473
• Parties: Harry P. HORNBY, Jr., Individually and d/b/a The Uvalde Leader-News, Appellant, v. Curtis P. HUNTER, Appellee.
• Court: Texas Court of Appeals

Page 473

385 S.W.2d 473

Harry P. HORNBY, Jr., Individually and d/b/a The Uvalde Leader-News, Appellant, v.Curtis P. HUNTER, Appellee.

No. 81.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 3, 1964.

Rehearing Denied Dec. 31, 1964.

John A. Mobley, of Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellant.

William Brode Mobley, Jr., Corpus Christi, for appellee.

NYE, Justice.

This is a libel suit on appeal from an order overruling a plea of privilege.The appelleeCurtis H. Hunter instituted this suit against Harry P. Hornby, Jr., the appellant, individually and d/b/a The Uvalde Leader-News, for damages, alleging that he had been libelled by the publication of an article in the Uvalde Leader-News, a newspaper published bi-weekly by the appellant.Hunter is a resident of Nueces County, Texas, and the appellant is a resident of Uvalde County, Texas, at which place he publishes the Uvalde Leader-News.The suit was filed in Nueces County, Texas.

The news story which forms the basis of Hunter's suit was, according to the appellant, a report made to the newspaper by a deputy sheriff of Uvalde County.The article printed on the front page of the paper reads as follows:

'STOLEN CAR FOUND IN SABINAL

'Clarence Large, Deputy Sheriff of Uvalde County, reported that a stolen 1959 Cadillac was discovered on the Jack Griffin ranch, five miles northeast of Sabinal, Saturday, October 5.

'The car was stolen in Corpus Christi according to Laege.The lawman reported that he and Texas Ranger Levi Duncan were checking the area when they discovered the automobile.They radioed to their headquarters in Uvalde to see if the car had been stolen and received an answer from the Hondo Sheriff who was monitering the call.It appeared that the car had been stolen and that a warrant for C. H. 'Curly' Hunter of Corpus Christi had been issued in connection with the theft.

'Hunter and another man, Al Smith, had previously leased the pasture where the car was found.The seven room house on the lease was well stocked, according to Deputy Large, with food, ammunition, a radio and TV set.'

Hunter filed a controverting affidavit contending that he is entitled to maintain his suit in Nueces County against the appellant by virtue of the provisions of Exception No. 29 of Article 1995, Vernon's Ann.Tex.St.This imposes upon Hunter the burden of proving that a cause of action for libel in fact accrued in his favor.Perry v. Donaho, Tex.Civ.App., 358 S.W.2d 253(1962);Express Publishing Company v. Gonzalez, Tex.Civ.App., 326 S.w,.2d 544 (1959, wr.dism.);Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732(Com.App.1942, Opinion adopted by Sup.Ct.);A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619(1939).We hold that appellee Hunter has met this burden.

The trial court filed findings of fact and conclusions of law as follows: That Hunter is a resident of Nueces County, Texas, and was a resident of said County on October 13, 1963, the date the article appeared; that the appellant is a resident of Uvalde County, Texas, and is doing business as and is the owner of the Uvalde Leader-News which is a locally owned, independent newspaper in said County; that the newspaper has a circulation of around 3900 copies which extends into South Texas and into Nueces County; that the appellant published the article set forth above; that C. H. 'Curly' Hunter was identified as being the person, and the only person, to whom said article was referring; that the 1959 Cadillac automobile referred to in said article had been in the custody, control and possession of Hunter and his wife for about a year preceding the publication; that Hunter did not steal the automobile referred to in the article and that no complaint had been filed and no warrant issued for the arrest of C. H. 'Curly' Hunter for the theft of a 1959 Cadillac automobile in Corpus Christi, Texas.The court concluded that the article alleging and imputing the theft of the 1959 Cadillac automobile by Hunter is not true and that the article is defamatory and libelous per se.

The appellant raised six points upon which the appeal is based.The appellant complains that the trial court erred in concluding that the article in question was defamatory and libelous per se for the reason that there is no evidence to support the same, and that Hunter failed to prove that he suffered any damage by reason of such publication.The appellant admits that there was no indictment pending in Nueces County against C. H. 'Curly' Hunter for the theft of a Cadillac automobile.Appellant argues that the article does not state that Hunter stole said automobile but only relates to the fact that a warrant had been issued against Hunter of Nueces County.Appellant proved that there was pending an indictment against 'Curly' Hunter for receiving and concealing stolen property but it was developed in the testimony that the complaint did not involve an automobile.In view of our holding herein, the indictment concerning another criminal offense remote and unconnected with the publication before this Court would not be a defense to the libel published even though the offenses are of a similar character.Art. 5431, V.A.T.S.;Herald News Co. v. Wilkinson, 239 S.W 294(Tex.Civ.App.1922, Dism. w.o.j.);36 Tex.Jur.2d 340, Sec. 54.

The article begins with the headline which states 'Stolen Car Found in Sabinal.'The article goes on to say that: 'It appeared that the car had been stolen and that a warrant for C. H. 'Curly' Hunter of Corpus Christi had been issued in connection with the theft.'It is not necessary that the publication of a charge of violating a criminal statute be made in a technical minner the same as might be required of an indictment.It is sufficient on reading the article that an ordinary person would draw a reasonable conclusion that the complaining party was charged with a violation of some criminal law.Easley v. Express Publishing Co., 299 S.W.2d 782(Tex.Civ.App.1957, ref. n. r. e.);36 Tex.Jur.2d 292, Sec. 8.The trial court took judicial knowledge that the venue statute concerning felony theft of an automobile in this case would be filed in Nueces County.The Assistant District Attorney for Nueces County testified that after checking his records concerning the theft of a 1959 Cadillac automobile that there was no complaint or warrant issued against C. H. 'Curly' Hunter for the theft of a 1959 Cadillac automobile.

We hold that the subject article does impute to Hunter the commission of a crime for which punishment by imprisonment in jail or the penitentiary may be imposed and is, therefore, libelous per se.Belo v. Fuller, 84 Tex. 450, 19 S.W. 616(1892);Pridemore v. San Angelo Standard, Inc., 146 S.W.2d 1048(Tex.Civ.App.1941, wr. dism., jud. cor.);Warren v. Hill, 77 S.W.2d 322;36 Tex.Jur.2d 288, Sec. 7.It is not necessary to prove actual damages where the words used are libelous per se.The law presumes actual damages.Bell Pub. Co. v. Garrett Engineering Co., 141 Tex. 51, 170 S.W.2d 197(Tex.Com.App.1943);Maass v. Sefcik, 138 S.W.2d 897(Tex.Civ.App.1940);Macfadden's Publications v. Turner, 95 S.W.2d 1027(Tex.Civ.App.1936);Davila v. Caller-Times Publishing Co., 311 S.W.2d 945(Tex.Civ.App.1958);36 Tex.Jur.2d 392, Sec. 93.Appellant, even though he may have been innocent and made a mistake in the publication, is nevertheless liable for actual damages.Wortham-Carter Pub. Co. v. Littlepage, 233 S.W. 1043...