Milner v. Red River Valley Pub. Co., 14519

• Decision Date: 25 April 1952
• Docket Number: No. 14519,14519
• Citation: 249 S.W.2d 227
• Parties: MILNER et al. v. RED RIVER VALLEY PUB. CO., Inc.
• Court: Texas Court of Appeals

Page 227

249 S.W.2d 227

MILNER et al. v. RED RIVER VALLEY PUB. CO., Inc.

No. 14519.

Court of Civil Appeals of Texas, Dallas.

April 25, 1952.

Rehearing Denied May 30, 1952.

Robert L. Doss, Denison, for appellants.

Gillespie & Gillespie, Sherman, for appellee.

CRAMER, Justice.

This is an action for damages based upon an alleged violation of appellants' right of privacy. Appellants are the wife, children, father and mother of Ben Milner, deceased. Appellee publishes the Sherman Daily Democrat, a newspaper of large general circulation in the City of Sherman and its trade territory, and in the afternoon edition of its paper dated July 1, 1949, published the following item, to wit:

'SHERMAN MAN IS KILLED IN WRECK AT GAINESVILLE.

'Ben Milner, 30, Sherman truck operator and World War II veteran, was killed at 5 a. m. Friday when his car overturned after failing to make a curve on Highway 82, immediately west of Gainesville city limits. E. T. Murphy, 37, Milner's brother-in-law, who was critically injured in the accident, was reported near death at Noon Friday in a Gainesville hospital. The accident took place on a detour which curves off the highway where an overpass is under construction. MILNER WAS ONE OF A GROUP OF GRAYSON COUNTY MEN WHO WERE INDICTED LAST YEAR IN COLLIN COUNTY GRAIN THEFT CASES. HE WAS THE SECOND OF THE GROUP TO DIE IN A TRAFFIC ACCIDENT. THE FIRST DEATH TOOK PLACE LAST FALL WHEN A TRUCK BURNED AFTER OVERTURNING ON AN EAST COAST HIGHWAY.

'Funeral services for Milner were pending Friday noon at the Dannel Funeral Home. He was the son of Mr. and Mrs. C. W. Milner of Gunter. He attended Gunter schools and was a member of the Gunter Baptist Church. Besides his parents, he is survived by his wife, the former Miss Mildred Popplewell of Sherman, a small son, a brother, C. W. Milner, Jr. of Sherman, and five sisters, Mrs. Juanita Smith of Sherman, Mrs. Wynell Purdom and Miss Betty Milner of Dallas and Misses Billie and Lucile Milner of Gunter. Milner's death was the second within 24 hours on Cooke County highways. Robert Frazer, 24, an oilfield worker, was killed near St. Jo., when four sections of oil pipe casing fell from a truck, striking his head.' (Capitalization ours.)

There is no contention that such article did not recite true facts; appellants' contention is that the capitalized paragraph, even though true, is an invasion of their right of privacy, and they seek a recovery of damages for their great 'embarrassment, humiliation and mortification' caused by such brutal, heartless, outrageous, wicked and vicious act for which there could be no possible justification or excuse, and that the publication thereof was a flagrant abuse of their rights and was a ruthless and shocking intrusion upon their right to mourn their beloved husband, father and son unmolested by such inexcusable and offensive publicity and reprehensive, outrageous, and contemptible assault upon their feelings; that in publishing and circulating such an odious attack upon them while they were in the depths of their great mourning and profound grief, and circulating the same, was an invasion of their right to be left alone during their dark period of extreme shock and sorrow over the untimely and tragic death of their husband, father and son and constituted an actionable invasion of thier right of privacy without justifiable cause. Appellants sought damages of $25,000 for actual, and $25,000 for exemplary, damages to the wife and children and the same amounts were also claimed by the father and mother. Defendant answered by exceptions, general denial, and general answer that the story which it ran in its paper on July 1st was a story of the usual type run by newspapers upon a death in an automobile accident, and the matter published therein with reference to Milner's indictment in connection with the Collin County grain theft cases was true and was published as a means of identifying the deceased by reference to his past record and history. That such means of identification is customary among the newspapers of Texas and the nation, and there is nothing in connection with said reference and history which in any way indicates any intention to injure the deceased or his family. That said publication and particularly the portion complained of by plaintiffs was a matter shown by the records of the 59th Judicial District Court in Collin County, Texas, and that as such, such item was expressly privileged for publication by the papers by the statutes of Texas; that said item was not a matter of private interest in which the plaintiffs or any other parties had any private rights, but in fact such item was a public matter either known to, or the knowledge of which was available to, the general public through said court records.

Appellee also pled...