MacFadden Publications v. Wilson

• Decision Date: 29 September 1938
• Docket Number: No. 3743.,3743.
• Citation: 121 S.W.2d 430
• Parties: MacFADDEN PUBLICATIONS, Inc., v. WILSON.
• Court: Texas Court of Appeals

121 S.W.2d 430

MacFADDEN PUBLICATIONS, Inc., v. WILSON.

No. 3743.

Court of Civil Appeals of Texas. El Paso.

September 29, 1938.

Rehearing Denied October 20, 1938.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by Betty Bailey Wilson against MacFadden Publications, Incorporated, for alleged libelous matter published in the defendant's magazine. From judgment for the plaintiff, defendant appeals.

Affirmed.

This is a suit to recover damages for alleged libelous matter appearing in Liberty a weekly magazine published by the appellant. The suit was originally instituted by Miss Betty Bailey, a minor, by her next friend. Subsequently she married Robert T. Wilson, known as "Bobby" Wilson, who joined her as party plaintiff in the subsequent prosecution of the suit. The article containing the alleged libelous matter reads as follows:

"The Big Game

"The Players: Philip Huston, James Gleason, June Travis, Bruce Cabot, Andy Devine, C. Henry Gordon, Guinn Williams, John Arledge, Frank M. Thomas, Barbara Pepper, Margaret Seddon. Story by Francis Wallace. Screen play by Erwin Shaw. Directed by George Nichols, Jr. Produced by RKO.

"One of the first of a host of autumn pigskin epics—and presenting a curiously hard-boiled slant upon the great American collegiate sport.

"Clark Jenkins and Cal Calhoun are rival stars on Atlantic's great team. They make no bones of the fact that they are paid, and well paid, to play good hard football. Moreover, their pals are gamblers who follow the game's vicissitudes as they follow the ponies. Then, when Atlantic faces Erie, its great rival, Jenkins is kidnaped by rival gamblers.

"In the background the makers of The Big Game offer you eight celebrated gridiron stars, ranging all the way to Bill Shakespeare, late a stalwart back of Notre Dame. Here you have intimate glimpses of fearless football figures pretty badly scared by camera and mike.

"Vital Statistics: Ambition of every pigskin star: To become a Clark Gable. Chances: Good. Ability: Usually good, thanks to lack of phoniness in football playing * * * Frank Alustiza of Stanford was easiest going of all the * * * gridders * * * William Shakespeare is of New York and not of Stratford-on-Avon and actually flunked his English while starring for Notre Dame. Will even misquotes the Bard in this. Known as the longest punter of last year's grid battles, Will booted the pigskin eighty yards in the Pitt game * * * Bobby Wilson was known as the romantic 1/4 back at S.M.U. because he was in love with the blonde hussy who led the band. * * * Jay Berwanger's become a sports writer in Chi * * * King Kong Klein is now playing pro football * * * Monk (Stanford) Moscrip's the handsomest dog of the lot. Made it a tough afternoon for Bobby Wilson in last year's S.M.U.—Stanford Rose Bowl Game, on account he was the best man in the S.M. U. backfield * * * Bones Hamilton is called by such terrifying nomenclature (nickname) because originally it was Ham Hamilton, then Hambone, then by natural progression Bones * * * Philip Huston played very un-All-American football for Blair Academy of New Jersey. Has made an eight months' windjammer trip around a good part of the world; has reported, Wall Street clerked, life-guarded, vodvilled, stocked. He's of Goshen, Virginia * * * Andy Devine has footballed for Santa Clara, Cal., Bronchos, as a lineman. Has played with or against more All-Americans than any other Hollywooder, having been in that many football pictures. Has tackled the Four Horsemen, Red Grange, and George Wilson. Is soft and fat now and got quite a beating in the riot scene, necessitating crutches, but winning his check for dear old RKO. Andy's married and has a kiddie 1/4 back * * * Bruce Cabot played a little New Mex Military Academy football; took his part in this seriously, refusing a double in the scrimmage scenes, going into training with Huston to perfect that lateral pass they pull * * * Screen play was by youngling Erwin Shaw, twenty-three-old author of the bitter antiwar play, Bury the Dead. Hollywood thought it a good joke that he was brought out and put on a football picture. What a sense of humor the big town has!" (Italics ours)

Plaintiff asserted that the use of the term "blonde hussy" as it appears in the article in that part thereof where it is said, "Bobby Wilson was known as the romantic 1/4 back at S.M.U. because he was in love with the blonde hussy who led the band", is libelous.

It was alleged Robt. E. Wilson (whom the plaintiff had married) was generally known and designated as "Bobby Wilson," a football player of the Southern Methodist University, and Betty Bailey was leader of the University Band, and at the time of the publication it was generally known she was engaged to marry the said Bobby Wilson. Further, it was generally known the country over that she, Betty Bailey, led the band, and that Bobby Wilson was a famous football player.

It was conceded by defendant that the lady referred to in the alleged libelous portion of the article was the plaintiff Betty Bailey Wilson, as she was the person who led the band and was engaged to Bobby Wilson at that time. The court's charge together with the issues submitted and the answers thereto returned by the jury read as follows:

"This case is submitted to you upon the following special issues which you will answer from a preponderance of the evidence, that is, the greater weight and degree of credible testimony before you, without regard to the effect your answers may have upon the judgment in this case.

"By the term `Libel' is meant a defamation expressed in printing or writing, tending to injure the reputation of one who is alive and thereby expose him to public hatred, contempt or ridicule, or, to impeach the honesty, integrity or virtue or reputation of anyone, and thereby expose such person to public hatred or ridicule.

"Special Issue No. 1.

"Do you find and believe from a preponderance of the evidence, considering the whole article introduced in evidence, that the use of the term `blonde hussy,' therein, would be understood by the ordinary reader thereof as words impeaching the virtue or reputation of the plaintiff, Betty Bailey Wilson?

"Answer `yes' or `no.'

"Answer: Yes.

"Special Issue No. 2.

"Do you find and believe from a preponderance of the evidence, considering the whole article introduced in evidence, that the use of the term `blonde hussy' therein, would be understood by the ordinary reader thereof, as words of contempt or ridicule of the plaintiff Betty Bailey Wilson?

"Answer `yes' or `no.'

"Answer: Yes.

"Special Issue No. 3.

"Do you find and believe from a preponderance of the evidence that the ordinary reader of the article in evidence, from the context of the words within the four corners of said article, would understand that the words, `blonde hussy,' therein, were used in their innocent sense and meaning, as alleged by the defendant?

"Answer `yes' or `no.'

"Answer: No.

"Special Issue No. 4.

"What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably compensate the plaintiff, Betty Bailey Wilson, for the injuries, if any, which she may have sustained to her reputation, and for the mental anguish and humiliation, if any, which she may have sustained, directly and proximately caused by the publication of the article in question published in Liberty Magazine of date the 28th day of November, 1936, which has been introduced in evidence?

"Answer in dollars and cents, if any.

"Answer: $2950.00.

"You are the sole judges of the facts provided; the credibility of the witnesses and of the weight and credit to be given to their testimony, but the law you will receive from the court, which is herein given you and be governed thereby.

"After argument of counsel, you will retire to the jury room, select your own foreman and writ your answers to the special issues in the space provided after each issue; your foreman will sign the form of verdict as shown below.

"You are further instructed that while you are deliberating upon your verdict, you will not mention, refer to, nor take into consideration, by mental reservation or otherwise, any matter, fact or...