Moore v. Leverett, 12366.

• Decision Date: 25 October 1930
• Docket Number: No. 12366.,12366.
• Citation: 33 S.W.2d 838
• Parties: MOORE v. LEVERETT et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

33 S.W.2d 838

MOORE v. LEVERETT et al.^*

No. 12366.

Court of Civil Appeals of Texas. Fort Worth.

October 25, 1930.

Rehearing Denied November 21, 1930.

Appeal from District Court, Cooke County; B. W. Boyd, Judge.

Suit by W. S. Moore against W. W. Leverett and another. Judgment for defendant, and plaintiff appeals.

Affirmed.

McDonald & Anderson and B. Y. Cummings, all of Wichita Falls, and W. S. Moore, of Gainesville for appellant.

Adams & Jones and W. O. Davis, all of Gainesville, for appellees.

CONNER, C. J.

This suit was filed on the 6th day of July, 1927, by appellant, W. S. Moore, against W. W. Leverett and A. E. Hermann, charging the publication of a libel. Defendants were duly served, and presented both general and special exceptions to the petition. Leave, however, was granted to amend, and appellant filed his first amended original petition on the 19th day of September, 1929, which, omitting formal parts, reads as follows:

"That on or about the 16th day of July, 1926, the plaintiff W. S. Moore, was the duly qualified and acting judge of the 16th Judicial District of Texas, composed of Denton and Cooke Counties, Texas, and was also at said time a candidate before the Democratic primaries in said District held on the 24th day of July, 1926, for the Democratic nomination for the office of district judge of said district, and that his opponent in said primary election for said nomination was A. C. Owsley of Denton County, Texas; and he further alleges that on all the dates herein mentioned and alleged above and hereinafter alleged, the defendant Leverett and Herman were the owners, publishers, proprietors and editors of a certain newspaper of general circulation in the State of Texas, and particularly in said Cooke and Denton Counties, and published in the City of Gainesville in Cooke County, Texas, known as the Gainesville Signal.

"That heretofore, towit, on or about the 16th day of July, 1926, and prior to said primary election above mentioned, the defendants were the owners and publishers of said newspaper above mentioned, and that prior to said date the plaintiff had been held in esteem and reputed good name, character and reputation by the people of said judicial district and the people of Texas generally, and that he possessed such good name, character and reputation, but that on or about the said date of July 16, 1926, the defendants published in said newspaper under the heading `The District Judgeship,' an article signed and purporting to be signed by one W. O. Davis, a practicing lawyer at the Gainesville, Texas, bar, which said article so signed and published was maliciously offensive and of and concerning this plaintiff; that among other statements contained and published in said article, was the following language to-wit:

"`W. S. Moore seems to think that he ought to be elected by the people because the lawyers are opposed to him. The lawyers are Moore's nearest neighbors and know more about him than anyone else. When did a man have the impudence to claim that he was entitled to an office because his neighbors did not have a good opinion of him? We should mistrust the man who claims to have bad neighbors; the fault is generally with himself. It is no good recommendation to a lawyer that other members of the bar have a poor opinion of him. They are familiar with his methods; they have been consulted by the people who have had dealings with him.'

"That by said language above quoted, it was meant and was intended to mean that plaintiff had been guilty of dishonest and dishonorable conduct and of dishonest, dishonorable and corrupt practices as a lawyer and that he had engaged in criminal conduct toward his clients and their rights in his capacity as an attorney at law.

"Plaintiff further alleges that by said language above quoted it was meant and intended to mean that the plaintiff claimed that his neighbors were bad and that the plaintiffs neighbors had a poor opinion of the plaintiff, and that the plaintiff was impudently claiming that he was entitled to a public office, towit, that of District Judge of the 16th Judicial District, because and on account of the fact that all his neighbors, or his neighbors generally, had a poor or bad opinion of him.

"Plaintiff further alleges that there was used and published in said article above mentioned the following additional language at said time by the defendants in said newspaper, said article being signed by the said W. O. Davis:

"`I note that R. R. Bell, our former county attorney and now a resident of Oklahoma City, has rushed into print advocating the election of W. S. Moore. The people remember how R. R. Bell prospered as county attorney. W. S. Moore learned under him.

"`Nothing more need be said.'

"That by the use of the last above quoted language it was meant and was intended to mean and charge that the said R. R. Bell, who was at one time county attorney of Cooke County, Texas, and while acting as such, had been guilty of dishonorable, dishonest and corrupt conduct as such county attorney and that by such practices he had prospered illegally in a financial way, and that by use of said language it was meant and intended to mean that the plaintiff W. S. Moore had learned corrupt, dishonorable and dishonest practices as a lawyer from and under the said R. R. Bell, and that the plaintiff had been guilty of dishonesty and of improper conduct in his practice as a lawyer.

"The plaintiff further alleges that the defendants did publish all the above quoted language in said newspaper as above said or and concerning the plaintiff W. S. Moore and that all of the same was false and defamatory and untrue."

It was further alleged that the defendants were acquainted with the plaintiff's good name, character, and reputation, but that "conspiring and maliciously intending to injure the plaintiff and deprive him of his good name, reputation and with the intent to injure his character among the people of said 16th judicial district and of the State of Texas generally who knew him and had confidence in his honesty and integrity, * * * and for the purpose of causing plaintiff injury and damage among those people in said district and the State of Texas generally who did not know the plaintiff did as aforesaid on or about the 16th day of July, 1926, publish and cause to be published and circulated throughout said district and the State of Texas and generally said false, untrue, defamatory and libelous article and statements as aforesaid."

It was further charged, in substance, that on account of and by means of the publication of said false and defamatory words and language, plaintiff had been injured and damaged in his good name and reputation, and that many people throughout the said judicial district and the state of Texas generally, unfamiliar with the facts, were led to believe, as was intended, that the plaintiff had been guilty of dishonest and corrupt practices and of defrauding his clients as a lawyer, and of defrauding other persons, and was generally guilty of improper and fraudulent conduct; that as a result he had been caused to suffer loss and damage in his profession as a lawyer, and had caused him the humiliation of defeat of the office of district judge of said judicial district and of the emoluments of said office; that the language and words quoted were not only false, but that they were willfully and maliciously and knowingly published by the defendants with intent to injure him and deprive him of his good name and reputation and lose the esteem of his friends, neighbors, and acquaintances and the public generally; that the defendants, without investigating the truth of the statements therein, well knew at said time that W. O. Davis was a bitter personal and political enemy of plaintiff, and had been so for many years; that the defendant W. W. Leverett was also a bitter personal enemy of the plaintiff.

It was further alleged that said newspaper had a large circulation in Cooke and Denton counties, and was also circulated and read in many other counties of Texas, as was intended they should be; that defendants well knew when they published said language concerning plaintiff and R. R. Bell that said Bell had ceased to be county attorney of Cooke county long before the plaintiff ever formed his acquaintance; that plaintiff at no time was connected with Bell when he was county attorney, but later they became law partners.

The prayer was that plaintiff might recover by reason of the premises $20,000 actual damages and $15,000 exemplary damages.

The trial court sustained appellee's general and special demurrers to the petition, and, appellant having declined to further amend, judgment was entered dismissing the suit, and from this judgment an appeal has been duly prosecuted.

Much has been written in the text-books and decisions of other jurisdictions in the effort to maintain the proper equilibrium between the right of free speech and of a free press on the one hand, and due protection of the individual from defamatory words and printing that tends to injure one's reputation and damage him on the other hand. In the disposition of this case, however, we shall content ourselves with references, for the most part, to our own statutory and judicial treatment of the subject.

Article 5430, Rev. Civ. Statutes of 1925, thus defines "libel":

"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."

Article 5432 provides that the publication of certain matters shall be deemed privileged, and shall not be made the...