Renfro Drug Co. v. Lawson, 2018.

• Decision Date: 27 September 1940
• Docket Number: No. 2018.,2018.
• Citation: 144 S.W.2d 417
• Parties: RENFRO DRUG CO. v. LAWSON.
• Court: Texas Court of Appeals

144 S.W.2d 417

RENFRO DRUG CO. v. LAWSON.

No. 2018.

Court of Civil Appeals of Texas. Eastland.

September 27, 1940.

Rehearing Denied October 25, 1940.

Appeal from District Court, Stephens County; B. H. Atchison, Judge.

Action by A. R. Lawson, a resident of Stephens County, against Renfro Drug Company, resident in Travis County, to recover damages for the alleged publication and circulation of a libel against plaintiff's deceased daughter. From judgment for plaintiff overruling defendant's plea of privilege, defendant appeals.

Judgment reversed and cause transferred to a district court of Travis County.

Lyndsay D. Hawkins, of Breckenridge, and Cofer & Cofer, of Austin, for appellant.

Floyd Jones, of Breckenridge, and J. A. Kibler, of Waco, for appellee.

Harry I. Freedman and Spafford & Spafford, all of Dallas, and McKay & Avery and Thomas B. Greenwood, all of Austin, amici curiæ.

FUNDERBURK, Justice.

A. R. Lawson, a resident of Stephens County, sued Renfro Drug Company, a corporation, having its residence in Travis County, Texas, to recover damages for the alleged publication and circulation by means of sale and offering for sale, at a news stand in its drug store, copies of a magazine containing pictures and an article constituting a libel of Louise Lawson, a deceased daughter of plaintiff. The defendant duly filed plea of privilege, which was controverted on the ground that the suit was one for libel and that the plaintiff was a resident of Stephens County, the county in which the suit was filed, at the time of the accrual of the cause of action. R.S.1925, Art. 1995, exception 29. The issue of privileged venue being tried, the court overruled the plea of privilege, to which action the defendant excepted and has appealed. The parties will be referred to as plaintiff and defendant, the same as in the trial court.

It seems to be agreed that under authority of Blanton v. Garrett, 133 Tex. 399, 129 S.W.2d 623; A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, and Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, the plaintiff had the burden, among other things, of establishing the existence of the alleged cause of action. The defendant, in effect, contends that no such cause of action was shown by the evidence because under the law no such cause of action could exist. We take it to be now settled by the decisions in this State that in a libel suit proof that the plaintiff was a resident of a particular county at the time of the accrual of the cause of action, within the meaning of said exception 29, includes proof of the existence of the cause of action.

The first question for decision is whether a father may have a cause of action to recover damages for the publication or circulation of a libel which, as a defamation or injury to reputation, refers alone to a deceased daughter.

In 1901, at a time when causes of action to recover damages for libel in civil actions had long been recognized by law in this state, and criminal libel had long been defined and prohibited by the Penal Code, the Legislature enacted a statute, the purpose of which, as shown by its caption, was "to define civil libel, to declare certain newspaper reports to be privileged communications; to allow certain matters to be pleaded and proved in mitigation of exemplary damages in civil libel cases, and to declare an emergency." General Laws, Regular Session, 27th Legislature, c. 26, p. 30. The emergency declared was the recited fact that "there is now no law in this State defining libel and privileged publications." Id., § 5. A special provision of the Act read thus: "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." Id., § 4. The definition so prescribed was as follows: "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." Id., § 1. This definition supplemented in the 1911 revision of the civil statutes by the clause "or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury" (R.S.1911, Art. 5595), has remained unchanged down to the present time. R.S. 1925, Art. 5430.

While prior to said Act of 1901 there was no statutory definition of libel as applicable to civil actions, the common law was in effect by statutory adoption made January 20, 1840. Said adoption provision is now R.S.1925, Art. 1. Referable to such adoption of the common law was the recognition by the courts of this State of the existence of civil causes of action for libel. The adoption of the common law included, of course, the adoption of common law definitions of libel. When, therefore, the Legislature stated as the emergency for the immediate effectiveness of said Act that "there is now no law in this State defining libel," etc., it is reasonably to be inferred that it was meant there was then no statute law in this state defining libel, which was true, rather than that there was no definition of libel by any law in this state, which would have been untrue. There is thus naturally suggested the question: Did the Legislature, under such circumstances, merely, by adopting a statutory definition of libel, intend to create by such statute a character of cause of action not theretofore existing? If such was the intention, it not being expressed, must be inferred or implied from the terms of the statute.

It may be conceded that if the definition so prescribed by the statute had been materially different from the definition at common law the Act itself would have evidenced an intention to change the common law. But, it is contended by the defendant that the statutory definition was, in substance and effect, only a re-affirmation of a common law definition. We think the authorities relied upon sustain this contention. 18 American & English Encyclopedia, p. 968; 17 R.C.L. p. 262; Kent's Commentaries, vol. 2, p. 17; Cohen v. New York Times, 153 App.Div. 242, 138 N.Y.S. 206; Jacksonville Journal Co. v. Beymer, 42 Ill.App. 443; White v. Bourquin, 204 Ill.App. 83.

It is further contended, and we think fully supported by the authorities cited, that the common law, although the element of defamation of the dead was a part of the...