Houston v. Interstate Circuit, 10968.

• Court: Court of Appeals of Texas
• Writing for the Court: Graves
• Citation: 132 S.W.2d 903
• Parties: HOUSTON v. INTERSTATE CIRCUIT, Inc., et al.
• Docket Number: No. 10968.,10968.
• Decision Date: 12 October 1939

132 S.W.2d 903 HOUSTON
v.
INTERSTATE CIRCUIT, Inc., et al. No. 10968. Court of Civil Appeals of Texas. Galveston. October 12, 1939. Rehearing Denied November 2, 1939.

Page 904

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Action by Andrew Jackson Houston against the Interstate Circuit, Inc., and others, to recover damages for alleged libel. From an order refusing plaintiff a temporary injunction, the plaintiff appeals.

Affirmed.

Joe H. Eagle and Fitzpatrick & Wells, all of Houston, for appellant.

Lester Settegast, of Houston, amicus curiæ.

Baker, Botts, Andrews & Wharton, Paul Port, and Tom Scurry, all of Houston, for appellees Interstate Circuit, Inc., and Republic Pictures Corporation of Texas.

W. P. Hamblen, of Houston, for appellee Horwitz-Texas Theatre Co.

GRAVES, Justice.

This appeal is from an order of the 80th District Court of Harris County, refusing appellant a temporary injunction against the appellees, Interstate Circuit, Inc., Horwitz-Texas Theatre Company, and Republic Pictures Corporation of Texas, enjoining them from thereafter—pending his suit for damages against them—showing or exhibiting the motion-picture styled "Man of Conquest".

Pursuant to antecedent rulings below as to service on certain other parties-defendant there, the appellant, before the receipt of any evidence on this hearing, voluntarily dismissed his action for such ad interim relief as against them, hence they are not before this court.

The trial court considered evidence from the appellant only (the appellees offering none) as a prelude to the entry of the challenged judgment, including an original print of the picture, "Man of Conquest", and, by agreement to that procedure from all parties, a viewing by the trial Judge of the picture itself, as reflected on the screen, inclusive of "the scenes shown, the words, and music thereto", which, in such entirety, was then introduced in evidence by the appellant, and made a part of this record without objection from the appellees.

The cause has been prosecuted to and advanced in this court, pursuant to R.S. Article 4662, and has been heard here in accordance with the requirements of that statute —that is, upon the transcript and statement of facts filed, including the petition for the writ and answers thereto, together with such affidavits and other evidence as the court below admitted.

This court also, by the courtesy of and agreement between the stated parties to this appeal, has, during its executive consideration thereof subsequent to submission, had the benefit of a private showing of the picture on the screen, in the same way as did the trial judge.

The main suit, to which the sought-for temporary injunction was ancillary, was one by appellant as the last surviving son of General Sam Houston, commander-in-chief of the armies of the Republic of Texas at the Battle of San Jacinto, and of his wife, Margaret Lea Houston, against the appellees and others for a million dollars damages, alleged to have resulted to him from their exhibiting the moving-picture termed "Man of Conquest", and therein holding out, as being a historical portrayal, numerous acts of theirs, as well as many incidents and happenings in the lives of his father and mother, who died in 1863 and 1867, respectively, that are all false in fact and tend to blacken their memories, hence are libelous under R.S. Article of Texas, 5430; his specifications being in his verbis as follows:

VI. The false portrayals upon which plaintiff's charge of libel is grounded are these:

"1. The estrangement between General Sam Houston and his first wife, Eliza Allen, is portrayed as due solely to that fact that she became so disgusted with his uncouth behavior at a public entertainment while governor of Tennessee and in the presence of his bride and other ladies, that she told him

Page 905

never to touch her again, threw her wedding ring on the floor and told him to go wallow in the stable mire, which attitude was allegedly due to the alleged fact that he engaged in a public wrestling match while governor of Tennessee, rolling on the ground with his shirt tail out, gnawed on a joint of bear meat, and broke down his wife's door after she had left the entertainment in disgust. He is portrayed as telling his bride, at this time, that she had not married a gentleman, but that she had married a fighter and a politician.

"2. The picture represents a recruit in the War of 1812 referring to plaintiff's father as `crazy Sam Houston', and shows a resultant fist-fight.

"3. When plaintiff's father resigned as Governor of Tennessee and went into self-imposed exile among the Cherokee Indians, he is portrayed on arrival in the Indian Country as loathsomely filthy and unkempt, and is shown, at the time, as slapping the face of the old Indian Chief who had been his friend and protector in boyhood.

"4. General Sam Houston is represented as a man of conquest who conspired to foment an unlawful uprising, and he is shown as refusing to marry plaintiff's mother, when she allegedly asked him to marry her, because of his...