Koehler v. Dubose

• Citation: 200 S.W. 238
• Decision Date: 02 January 1918
• Docket Number: (No. 5937.)
• Parties: KOEHLER v. DUBOSE et al.
• Court: Court of Appeals of Texas

200 S.W. 238

KOEHLER v. DUBOSE et al.

(No. 5937.)

Court of Civil Appeals of Texas. San Antonio.

January 2, 1918.

On Motion for Rehearing, January 23, 1918.

Appeal from District Court, Medina County; R. H. Burney, Judge.

Action by Walter Koehler against W. L Dubose and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Davis & Long and Ward & Bickett, all of San Antonio, and V. H. Blocker, of Hondo, for appellant. Hertzberg & Kercheville and C. C. Harris, all of San Antonio, Mack Kercheville, of Devine, De Montel & Fly, of Hondo, and John T. Briscoe and R. L. Marshall, both of Devine, for appellees.

FLY, C. J.

This is a suit for damages instituted by appellant against W. L. Dubose and 66 others. It was alleged that the damages arose from the publication and circulation of two written instruments. A general demurrer and special exception were sustained to the petition.

The first instrument was signed by appellees, and the other was not signed. The signed document is as follows:

"To the Hon. H. B. Terrell, State Comptroller, Austin, Texas:

"We, the undersigned, citizens, taxpayers and heads of families, including business men, doctors, ministers, lawyers, and school-teachers, residents of Devine, Medina county, Texas, want to file their remonstration against the granting of a new license to one Walter Koehler, who operates a county line saloon on Bexar and Atascosa county lines, just inside of Bexar county.

"We submit that the place is within eleven miles of our town, and that there is no police protection at or near the place where the saloon is operated; that minors frequent the place from over a great section of this county and seem to experience no difficulty in finding some one who will buy the liquor for them.

"We are having trouble in our school on account of the temptation to boys that are in school, among whom are young men who are sent here from distance to our school.

"We further aver the fact to be that there are fights and brawls, constantly happening in and near the saloon, the same being on highway over which hundreds of people have to pass en route to San Antonio, and occasionally there are murders committed by drunken men; that only recently a boy from this town was cut and slashed by drunken Mexicans there, from which wounds he is not expected to live; that lives of women and children who must of necessity pass there are in danger.

"Wherefore we remonstrate against a new license being issued at the expiration of the present one.

"Dated at Devine this the 16th day of October, A. D. 1916.

"Respectfully submitted."

Signed by W. L. Dubose and 66 other defendants.

The unsigned instrument is as follows:

"To the Honorable H. B. Terrell, State Comptroller, Austin, Texas:

"We, the undersigned citizens, taxpayers and heads of families, including business men, doctors, ministers, lawyers and school-teachers, residents of Lytle, Atascosa county, Texas, take leave to file this our remonstration against the granting of a new license to one Walter Koehler who operates a county line saloon on the Bexar and Atascosa county lines just inside the Bexar county line on the Laredo-San Antonio road.

"We submit that the place is within a mile and a half of our little town, and the place has no police protection whatever; that our minor boys have no trouble in finding some one who will buy liquor for them and that the place is operated to ruin and debauch the young men of this section, while they are yet of tender age and unable to withstand the temptation to drink on account of their minority.

"We pride ourselves in maintaining an extra good school, but we aver the fact to be that the saloon in a large measure counteracts our efforts in the direction of education and undoes the work of our school.

"We lay no special blame upon the man who operates the place, for we believe he tries to run the same according to law, but owing to the fact that there are no officers present to assist him, it is common practice for certain unscrupulous persons to buy for and deliver to minors all the liquor they want and that owing to the inherent hell in the commodity sold young men whom proud mothers had hoped to proffer their state and nation as good citizens, are in a fortnight converted into drunken wretches and laid at their feet.

"Wherefore we remonstrate against a new license being issued at the expiration of the present one.

"Witness our hands at Lytle, Texas, this the 16th day of October, A. D. 1916."

The two instruments were copied into the petition, and libel was declared upon them. If the instruments, or either of them, contain libelous matter, the general demurrer should not have been sustained, for the petition contains every allegation necessary to establish the cause of action, employing some pertinent innuendoes stated as arising from the publications of the papers.

In 1901 the Twenty-Seventh Legislature passed the first civil libel law ever enacted in Texas; prior to that time the common law being the only guide in libel cases, except in so far as certain publications had been penalized by the Legislature, such as the imputation of a want of chastity to a female. Hatcher v. Range, 98 Tex. 85, 81 S. W. 289; Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167. It has been held, and we think properly so, that the law of 1901 was enacted to comprehend and embrace the entire subject of libel in civil causes, without reference to rules or precedents in this or other states. Not only does the statute cover all actionable cases of libel in this state, but it has given rights to those who are the subjects of libel, not accorded to them under the common law. The law, as enacted in 1901 (Acts 27th Leg. c. 26), is as follows, omitting the emergency clause:

"Section 1. A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity or virtue or reputation of any one, or to publish the natural defects of any one, and thereby expose such person to public hatred, ridicule or financial injury.

"Sec. 2. In any action for libel the defendant may give in evidence, if specially pleaded, in mitigation of exemplary or punitive damages, the circumstances and intentions under which the libelous publication was made, and any public apology, correction or retraction made and published by him of the libel complained of. The truth of the statement or statements in such publication shall be a defense to such action.

"Sec. 3. The publication of the following matters by any newspaper or periodical, as defined in section 1, shall be deemed privileged, and shall not be made the basis of any action for libel without proof of actual malice.

"1. A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, when in the judgment of the court the ends of justice demand that the same should not be published, and the court so orders; or any other official proceedings authorized by law in the administration of the law.

"2. A fair, true and impartial account of all executive and legislative proceedings that are made a matter of record, including reports of legislative committees, and of any debate in the Legislature and in its committees.

"3. A fair, true and impartial account of public meetings, organized and conducted for public purposes only.

"4. A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information.

"Sec. 4. Nothing in this act shall be construed to amend or repeal any penal law on the subject of libel, nor to take away any existing defense to a civil action for libel, nor shall this act affect any suits now pending, or that may hereafter be brought upon a cause of action arising prior to the taking effect of this act."

In section 4 of that law, it is distinctly and clearly provided that certain existing matters and things shall not be affected by the act, each matter being specified. The first is penal laws as to libel, the second, defenses to civil actions for libel, and the third, as to cases arising before the law was enacted. If the provision is clear as to penal statutes, it is equally clear as to defenses in civil cases. No one has ever questioned the fact that the law did not affect penal laws, and there can be no doubt that defenses existing theretofore in civil actions for libel are no more affected than are the penal laws of Texas. It would seem that no other reasonable construction could be placed upon the statute of 1901, and while setting aside all other definitions of libel, the Legislature retained the common-law defenses as well for all citizens as for the publishers of newspapers or periodicals. We cannot imagine that the right of pleading and proving that an alleged libel is a privileged matter has been taken away from all citizens except newspaper and periodical publishers, and no authority has been produced which holds that such is the case. Such an authority would be directly in the face of the statute. It is clear that no such holding was made either in Walker v. Light Pub. Co., 30 Tex. Civ. App. 165, 70 S. W. 555, or in Guisti v. Galveston Tribune, 105 Tex. 497, 150 S. W. 874, 152 S. W. 167. In each of those cases the courts were considering the question from the standpoint of the plaintiff, and not from that of the defendant. They were defining the rights of plaintiffs under the law and not the defenses guaranteed by the law. In the Walker Case the court was passing upon the propriety of the action of the trial court in sustaining a general demurrer to the petition, and it was held that the statute gave the only definition...