Houston Chronicle Pub. Co. v. Quinn

• Decision Date: 10 February 1916
• Docket Number: (No. 66.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 184 S.W. 669
• Parties: HOUSTON CHRONICLE PUB. CO. v. QUINN.
• Court: Texas Court of Appeals

Page 669

184 S.W. 669

HOUSTON CHRONICLE PUB. CO. v. QUINN.

(No. 66.)^*

Court of Civil Appeals of Texas. Beaumont.

February 10, 1916.

Rehearing Denied March 16, 1916.

Appeal from District Court, Liberty County; J. Llewellyn, Judge.

Action by B. E. Quinn against the Houston Chronicle Publishing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Hunt, Myer & Teagle, of Houston, and E. B. Pickett, Jr., of Liberty, for appellant. Hightower, Orgain & Butler, of Beaumont, and Stevens & Stevens, of Liberty, for appellee.

BROOKE, J.

This is an action brought for libel by B. E. Quinn against Houston Chronicle Publishing Company. Plaintiff resided in Beaumont, Tex.; defendant is a corporation, domiciled in Harris county, Tex.; and the action was instituted in the district court of Liberty county, Tex. The cause was tried before a jury on the 11th day of June, 1915, and verdict was returned for the plaintiff in the sum of $4,000 actual and $1,000 exemplary damages. Defendant filed its amended motion for new trial on the 16th day of June, 1915, and same was overruled on the 17th day of June, 1915. Exception was duly taken, and 60 days allowed within which to file bills of exception and statement of facts. Appeal bond was filed on the 3d day of July, 1915, and appellant now presents its cause in this court.

At the outset this agreement was made:

"It is admitted by the parties to the cause that the letter of Dudley and David O'Fiel, set out in the plaintiff's original petition herein, was in fact published by the defendant in its paper, the Houston Chronicle, and circulated, as claimed by the plaintiff in his petition. It is further admitted that the statements and matters of fact set out and contained in said letter, as published by the defendant, in so far as the same are complained of by the plaintiff in this case, were and are false and untrue, save and except the fact that plaintiff did kill the said John J. O'Fiel. It is furthermore admitted that the killing of said John J. O'Fiel by the plaintiff, B. E. Quinn, was done in perfect self-defense."

The libelous article complained of reads as follows:

"An Explanation.

"To the Editor of the Chronicle:

"In your issue of August 13, 1914, or immediately subsequent to said date, in publishing the account of the tragedy at Beaumont, Texas, by which my father, John J. O'Fiel, lost his life at the hands of P. A. Quinn, it seemed from the wording of the article that my father was made the aggressor in the affair. The article, while in many particulars correct, was, in recital of action, wholly incorrect, and the affair did not happen as the article stated.

"On the occasion of the tragedy, John J. O'Fiel was walking on the east side of a street which runs almost due north and south, going south alongside of a building in which his office was located, evidently with the intention of going to the office, the entrance to which building was made from this street Pearl, which runs north and south. As he passed along the street and on the sidewalk, and arrived parallel with the entrance, this party, Quinn, who was concealed behind a door, or some fitting in the entrance of the office building, fired from the direction of my father's O'Fiel's side, the bullet going into the side of the left arm near the shoulder, straight across and entering the heart, inflicting a fatal wound. While Quinn fired other shots afterwards from the vantage point of the store, no others took effect, all going wild. After he was fired upon, which was at close range, my father wheeled and fired three shots at Quinn, all of which took effect, during and after which this party, Quinn, turned and fled into a store. They had had a previous difficulty the same day, in which Quinn assumed the aggressive, and knowing him to go continually armed, my father secured the only present available means of defense, a light caliber pistol, for his own protection, and did not use it, until after he had been fired upon, as above stated.

"Because the article as previously published did not state the true facts relating to and concerning the affair, for which, however, we can hardly attach any blame to you, and, as published, did my father and his memory a grave injustice, we ask that you publish this letter, that he may be properly exculpated from any blame or censure in the eyes of the public, and that any reproach or discredit offered his memory in the minds of relatives and friends be removed.

                             [Signed] David O'Fiel
                                      "Dudley O'Fiel."
                

By its first assignment of error, the appellant challenges the action of the lower court in permitting the appellee, Quinn, to testify, over the objection made by appellant, that the appellee was shot through the lung and shoulder, and then and there permitting him to describe his injuries, and his confinement in the hospital. The testimony complained of is as follows:

Counsel for appellee asked the following question:

"In this suit, Mr. Quinn, you complain of an article or letter that was published in the Houston Chronicle, I believe on the 23d of August, 1914, purporting to have been written by David and Dudley O'Fiel to the Houston Chronicle, relative to the contention of the O'Fiels as to the killing of John J. O'Fiel, their father, by yourself. It has been admitted that the article as published and as alleged and complained of by you, that the same is false and untrue, as alleged by you, save and except the killing of O'Fiel. When was this article first called to your attention? Answer: Several days after it was published, and before I got out of bed. I am not positive whether I was still in the hospital or at the sheriff's residence. I was either in the hospital or at the sheriff's residence. I was in the hospital on account of having been shot by John J. O'Fiel. I was shot through the right lung and across the shoulder, hit in about three places. I think one bullet made two holes."

The defendant excepted, and the exception was overruled by the court. Later appellant introduced in evidence the article which was published on August 30, 1914, relative to the tragedy, in which John J. O'Fiel met his death, containing, among other things, portions of the testimony of the plaintiff relative to the tragedy, which testimony, among other things, showed that plaintiff was wounded by said John J. O'Fiel, and that plaintiff's condition was weakened, and that he suffered from the wounds he received, and that, owing to such weakened condition and suffering on plaintiff's part, he was not able to appear at the preliminary hearing or examining trial where he was charged with the killing of said O'Fiel. A part of this testimony so introduced by the appellant, is as follows:

"An interesting phase of the hearing involved the earlier proceedings in justice court. Owing to the weakened condition of the defendant, suffering from wounds received in the encounter, no testimony was offered at the preliminary hearing."

In the case of Gammel-Statesman Pub. Co. v. Monfort, 81 S. W. page 1032, on this question the court says:

"But, however, it appears from the record that the testimony here objected to was also brought out by the appellant on the cross-examination of the witness Jones. Such being the case, the appellant should not be heard to urge objections to its admissibility."

In T. & N. O. Ry. Co. v. McCoy, 54 Tex. Civ. App. 283, 117 S. W. 448, the court says:

"The court did not err in refusing to strike out the evidence. In this case it may be noted that, after appellant had objected to all the testimony of the witness Hanks, he was again cross-examined by appellant, and all of the evidence objected to again brought out, and it is in no position to object to the evidence."

See, also, on this proposition, Eastham v. Hunter, 98 Tex. 565, 86 S. W. 323; M., K. & T. Ry. Co. of Texas v. Pettit, 54 Tex. Civ. App. 358, 117 S. W. 895; I. & G. N. Ry. Co. v. Brice, 126 S. W. 615; Kincheloe Irrigation Co. v. Hahn Bros. & Co., 132 S. W. 81; Sullivan v. Fant, 51 Tex. Civ. App. 6, 110 S. W. 522.

If therefore it was error on the part of the trial court to permit this testimony, the appellant, having voluntarily introduced evidence of the same character, cannot complain of such error. The first assignment is therefore overruled.

By the second assignment, appellant complains that the court erred in permitting the witnesses B. E. Quinn, Mike Welker, and Dr. A. A. Bailey, to testify that plaintiff had a good reputation, and they had never heard it questioned, defendant having objected to all such testimony, because plaintiff's reputation had not been attacked, and that the same is irrelevant and immaterial to any issue in the case.

Plaintiff alleged, in substance, in his petition, that prior to the publication and circulation of the libelous article complained of, he had always enjoyed and sustained, among the people in general throughout East Texas, and wherever known, the reputation of a peaceable and law-abiding and worthy citizen, and that at all times prior to said date he bore the reputation of an upright and honest man, and was at all times prior to said publication held in high esteem by his friends, etc.

The appellant, in answer to this allegation, says:

"Answering allegation in paragraph 8 of said petition, wherein plaintiff pleads his general reputation and his standing in general among the people of East Texas, this defendant says it has not sufficient information upon which to base a belief."

In the case of Houston Chronicle Publishing Company v. Tiernan, 171 S. W. 544, the court says:

"Plaintiff was permitted to testify, over the objection of the defendant, that many years ago he had held several offices in Galveston, and that: `Up to the time of the publication complained of, my wife and I were reputed of good name and character and reputation. We were of good reputation as lawyers and persons.' Appellant, by its first assignment of...