Houston Chronicle Pub. Co. v. Wegner

• Decision Date: 11 December 1915
• Docket Number: (No. 7004.)
• Citation: 182 S.W. 45
• Parties: HOUSTON CHRONICLE PUB. CO. v. WEGNER.
• Court: Texas Court of Appeals

182 S.W. 45

HOUSTON CHRONICLE PUB. CO. v. WEGNER.

(No. 7004.)

Court of Civil Appeals of Texas. Galveston.

December 11, 1915.

On Motion for Rehearing, January 22, 1916.

Appeal from District Court, Galveston County; Clay S. Briggs, Judge.

Action by Ernest Wegner, Sr., against the Houston Chronicle Publishing Company, continued after plaintiff's death by his widow and children. Judgment for plaintiffs, and defendant appeals. Affirmed.

Kittrell & Kittrell, of Houston, and E. F. Harris and Harris & Harris, all of Galveston, for appellant. James B. & Charles J. Stubbs and Marion J. Levy, all of Galveston, for appellees.

LANE, J.

For the purposes of this opinion the following statement of the case will be sufficient:

Shortly prior to the 5th day of December, 1912, there appeared in the Galveston Labor Herald, a paper published in the city of Galveston, the following:

"We will ask this question until it is answered:

"Who is Chief of Police?

"Delenda Est Money Lender.

"`And Jesus went into the temple of God and cast out all of them that sold and bought in the temple and overthrew the tables of the money changers (Loan Sharks, 1912) and the seats of them that sold doves. — Matthew xxi, 12. `And said unto them: It is written — My house shall be called the house of prayer, but ye have made it a den of thieves.'

"To Mayor-President Lewis Fisher and Commissioners V. E. Austin, I. H. Kempner, A. P. Norman and M. E. Shay of the City of Galveston — Greeting:

"In the issue of the Galveston Labor Herald of date November 9 we asked the question, `Whether there was such a position provided by the city charter as confidential clerk to the chief of police?' No reply to the contrary has been received, therefore the query will be answered by the Labor Herald itself."

On the 5th of December, 1912, on request of Commissioner Shay, the published communication as above set out was read by the city attorney to the board of commissioners, who then referred the same to the commissioner of fire and police of Galveston city for investigation and report. Thereafter, on the 6th day of December, 1912, the Houston Chronicle Publishing Company, a corporation which publishes the Houston Chronicle, a newspaper, in Houston, Tex., published in its said newspaper the following article:

"Galveston to Probe Police.

"Committee to Investigate Charge That Man Not Provided for is on Pay Roll — Prizes Awarded.

"Special to the Chronicle.

"Galveston, Texas, Dec. 6 — As a result of an article printed in the Galveston Labor Herald, the city commissioners appointed a committee, consisting of Mayor Lewis Fisher, Commissioner of Fire and Police A. P. Norman, and City Attorney Mart H. Royston, to probe the matter. The charge is that, contrary to law, the Chief of Police, E. Wegner, has E. Wegner, Jr., on the city pay roll as `confidential clerk.' It is said no provision is made for such employment."

After such publication by said Houston Chronicle Publishing Company, hereinafter called the Chronicle Company, Ernest C. Wegner, Sr., brought suit against said Chronicle Company for damages alleged to have been suffered by him as a result of said publication, which he alleged to be maliciously false and slanderous. After said suit was filed, and before the case was tried, plaintiff, Ernest C. Wegner, Sr., died, and thereafter his widow and children made themselves parties plaintiff and carried on the litigation. By amended petition of the new-made parties, filed after the death of Ernest C. Wegner, Sr., allegation is made that in repetition and aggravation of the alleged libel of December 6, 1912, said Chronicle Company, on the 8th day of December, 1912, published an additional libel in the following words:

"An illustration of Galveston commission methods has just been given. Mr. Blair, editor of the Labor Herald, wrote to the commission, charging that the chief of police was employing `a confidential clerk,' and asking if there were any charter provision for such position. The commissioners acted promptly. Instead of following the immortal Vanderbilt in his attitude to the public, they considered the question seriously and appointed a committee to make a thorough investigation of the matter. There is no provision in the charter for the employment of a `confidential clerk' by the chief of police, or by any other official of the city. From the moment of filing the charges until the final verdict is rendered the people will know all about the case. There will be no secrecy about it, for there never is about anything the commissioners do."

Prayer was for actual general damages in the sum of $10,000, special damages in the sum of $10,000, and exemplary damages in the sum of $5,000.

The defendant answered by various special exceptions, and admitted the publication of the articles above set forth in the Houston Chronicle, especially denied various allegations of the plaintiffs, and pleaded absolute privilege and qualified privilege, in that the articles published constituted a report of the proceedings of a public body charged with public and official duty, with the proper performance of which duty the public was concerned, and that the publications were a fair, true, and impartial account of executive and legislative proceedings, which were matters of record, and that said articles constituted a true and impartial account of a public meeting organized and conducted for public purposes only, and that said articles were a fair comment upon a statement concerning official acts of public officials, published for general information; that the defendant publishes a newspaper, and rests upon the obligation to furnish its readers with a true account of all matters of public interest, and that it endeavored to report concerning E. C. Wegner, Sr., only that which was true and which it believed to be true, and defendant had no purpose in making the publication other than to set forth to its readers what it believed to be the truth; that defendant entertained no feeling of ill will against the plaintiff, and neither it nor any officer nor any employé of defendant had any purpose to do any injury to the said Ernest C. Wegner, Sr.

The case was tried before a jury, which was instructed by the court that they could not predicate any verdict of libel based upon the editorial of December 8, 1912, being the same set out in the amended petition filed by the substituted plaintiffs after the death of the original plaintiff, Ernest C. Wegner, Sr. The verdict of the jury was for appellees for $2,500 special and $10,000 general damages, and for no exemplary damages. Judgment was rendered in favor of appellees in accordance with said verdict, from which the Chronicle Company has appealed.

Appellant's assignments 1 to 5, inclusive, insist that the trial court erred in overruling appellant's special exceptions A. B. C. D. and E. to appellees' petition, wherein it is alleged that the article published by appellant is libelous, because: (1) It does not appear from said article that any charge is made by the defendant that any person is (or was) on the pay rolls of the city of Galveston; (2) it is not libelous per se, nor can such language be amplified or extended or construed into libel by plaintiffs by innuendo; (3) it is not libelous because it does not charge that any money was ever paid to the said E. Wegner, Jr., by the city of Galveston or from its funds, or that the city of Galveston ever sustained any loss, or that any of the funds of said city were diverted or applied to the payment of or for the use or benefit of said E. Wegner, Jr., or the said E. Wegner, Sr.; (4) it is not libelous because it alleges no fraud or secrecy on the part of the plaintiff, and does not allege nor convey the meaning that plaintiff was using the services of his son otherwise than for his (plaintiff's) convenience as his employé, and does not allege that the city of Galveston was in any wise defrauded or attempted to be defrauded; and (5) it is not libelous because it does not purport to be a charge made by the Chronicle Company against E. Wegner, Sr., but simply purports to be, and is, equivalent in law and in fact to a statement that such a charge had been made by another or other person, and that the Chronicle Company only so gave it, neither itself asserted it to be true, nor vouching for the truth thereof.

We will not undertake to consider these various assignments separately, as no good can be subserved in so doing, but will do so in a general way, as they practically present but one proposition; that is, that the alleged libelous article is, in fact, not libelous, and cannot be made so by innuendo averments.

The undisputed evidence shows that no such charge as was stated in said article had been made by any one except the Chronicle Company; that such charge, as published by the Chronicle Company, was untrue; and that appellant gave publication to the same recklessly, in a spirit of wanton indifference, and without reasonable, if any, effort whatever to ascertain the truth or falsity of the communication of its correspondent which contained the false charge before publishing same.

We think the indisputable substance of the alleged libelous article is that E. Wegner, chief of police of Galveston, had been charged with having, contrary to law, placed E. Wegner, Jr. (his son), on the pay rolls of the city of Galveston as his confidential clerk, intending that said E. Wegner, Jr., should draw pay from said city contrary to law. Such being the substance of such publication, it is, we think, unquestionably libelous per se, being admittedly untrue. To constitute such article libelous it was not necessary that it should charge that any money was ever paid to E. Wegner, Jr., by the city, or from its funds, or that it ever sustained any loss, or that any of its funds were diverted or applied to the payment of or for the use or benefit of the said E. Wegner, Jr., as suggested by appellant in its...