Mitchell v. Grand Lodge Free & Accepted Masons.

• Decision Date: 05 June 1909
• Parties: MITCHELL et al. v. GRAND LODGE FREE & ACCEPTED MASONS OF TEXAS.
• Court: Texas Court of Appeals

121 S.W. 178

MITCHELL et al. v. GRAND LODGE FREE & ACCEPTED MASONS OF TEXAS.

Court of Civil Appeals of Texas.

June 5, 1909.

Rehearing Denied June 26, 1909.

Appeal from District Court, Tarrant County; Mike E. Smith, Judge.

Suit by the Grand Lodge Free & Accepted Masons of Texas against C L. Mitchell and others. From an order granting a temporary injunction, defendants appeal. Reversed.

Jas. D. Crenshaw, for appellants. Smith & Latimore, for appellee.

DUNKLIN, J.

This suit was instituted by the Grand Lodge Free and Accepted Masons of Texas for colored people against C. L. Mitchell and a number of others. Upon application of plaintiff a writ of temporary injunction was issued restraining the defendant from publishing or distributing certain circulars concerning plaintiff and its officers, and from the order of the judge of the trial court granting said writ defendants have appealed.

Plaintiff alleged that it has been duly chartered under the laws of Texas; that the circulars which defendants had published and would continue to publish, if not restrained from so doing, falsely denounced plaintiff as a spurious lodge, and its officers as liars and imposters. In its petition plaintiff further alleged that its object and purpose was to upbuild the negro race, that it is doing much to promote its social and religious development, and that the publications complained of have already caused a loss of membership to the fraternity and have greatly injured it financially.

Defendants filed numerous exceptions to plaintiff's petition, all of which were overruled. They also filed an answer to the merits of the petition, admitting the publication of the circulars and alleging that the charges made in those circulars were true.

By one of the exceptions to the petition the contention was made that an injunction will not lie to restrain the publication of a libel. In our research we have been unable to find any case decided by the higher courts of Texas in which this question has been discussed, but the correctness of appellant's contention is sustained by the great weight of the decisions of other courts, and we are convinced that this exception to the application for the writ should have been sustained.

"A libel occupies much the same relative position as a crime, in considering the remedy of injunction. Equity will not restrain by injunction the threatened publication of a libel, as such, however great the injury to property may appear to be. This is the universal rule in the United States, and was formerly the rule in England. The present rule in England contra rests on statute." 6 Pom. Eq. Remedies, § 629.

"Upon the question of preventive relief in equity against the publication of libelous statements affecting the character or business of plaintiff, the authorities, both English and American, indicate a noticeable want of uniformity, and are, indeed, wholly irreconcilable. The earlier English doctrine, and that which seems most in accord with the principles governing the jurisdiction of equity by way of injunction, was that, the preventive jurisdiction being limited to the protection of property rights which are remediless by the usual course of procedure at law, courts of equity would not restrain the publication of libels or works of a libelous nature, even though such publications were calculated to injure the credit, business or character of the person aggrieved, and that he would be left to pursue his remedy at law." 2 High on Inj. § 1015.

"The courts will, in some cases, interpose by injunction to prevent the perpetration of a wrong, but as a general rule the publication of an alleged libel will not be stayed by injunction." Townshend on Slander & Libel (4th Ed.) § 417a.

"A court of equity has no jurisdiction to restrain a mere libel or slander. Nor does the fact that the false statement may injure plaintiff in his business or as to his property constitute a sufficient ground for an injunction, in the absence of...