Runge v. Franklin

• Citation: 10 S.W. 721
• Parties: RUNGE <I>v.</I> FRANKLIN <I>et al.</I>
• Decision Date: 05 February 1889
• Court: Texas Supreme Court

10 S.W. 721

RUNGEv.

FRANKLIN et al.

Supreme Court of Texas.

February 5, 1889.

Commissioners' decision. Appeal from district court, Galveston county.

Action for libel by Julius Runge against Joseph Franklin, Henry Seeligson, Charles Dalien, Royal T. Wheeler, J. H. Hurt, E. D. Hamner, H. W. Rhodes, and M. W. Shaw. The original petition was filed March 18, 1886. It was amended January 26, 1887. The alleged libelous matter is contained in a petition filed in the district court of Galveston county, February 2, 1886, by defendants against the Island City Ice Company. Plaintiff was not made a party to the suit, but it is alleged that he was a director. From an order sustaining a demurrer to the petition plaintiff appeals.

McLemore & Campbell and George E. Mann, for appellant. Waul & Walker, for appellees.

COLLARD, J.

This is a suit for libel brought by Julius Runge, the appellant, against Joseph Franklin and others. It is predicated upon alleged defamatory matter contained in a petition filed by appellees in the district court of Galveston county against the Island City Ice Company, a corporation in the city of Galveston, having the usual officers; appellant being one of the directors, and the appellees being owners of much less than one-half the stock. The bill declared to be libelous attacks the management of the company, alleging that it has been fraudulently conducted by the president with the assent and approval of the directors. It asks for injunction to prevent sale or other disposition of the property, and the appointment of a receiver to wind up the affairs of the company. Only a part of the allegations of the bill are selected and declared on as libelous. Plaintiff alleges that the bill was false and malicious, and that the suit was brought by defendants, when they were fully advised that there was no cause of action against plaintiff, or right of petition, as a libelous cover and device under which to attack and injure the good name and fame of plaintiff as a man and a director, and to injure him by depreciating his stocks in several corporations of which he is a director. He further alleged that after he had filed his affidavit in court, specifically denying each and all the allegations of the bill, "defendants, on February 11, 1886, caused the same to be published in the Galveston News, a newspaper having an extensive circulation in the city of Galveston, and throughout the state of Texas, repeating through the columns of the News the said libelous matter; in a certain part thereof was and is contained in tenor as follows, hereby annexed, marked `Exhibit A,' and made a part of this petition." It is further alleged that after defendants had vented their spleen "by publishing their said libelous allegations in said petition and said newspaper, and under pretext of a suit accomplished their wicked and malicious purpose of injuring plaintiff in character, business, and property, they then dismissed their pretended suit, paying the costs of court," before the demurrers to the same were acted on, which demurrers were alleged to show that in truth and in fact the bill set up no cause of action or basis of relief against the Island City Ice Company. The plaintiff was not made a defendant in the bill asking the appointment of a receiver. The Exhibit A, filed as containing the matter published in the News, is not a copy of the petition or its allegations in form, but is a somewhat condensed report of the same, and substantially restates the alleged libelous allegations of the bill extracted and copied in plaintiff's petition herein, as well as other allegations not extracted nor declared on by plaintiff. Defendants filed a general demurrer to the petition, and special exceptions, among which was one that the publication complained of was privileged; being by petition to a court of competent jurisdiction for injunction, and to appoint a receiver for the Island City Ice Company. The court sustained the exceptions, and, plaintiffs declining to amend, the cause was dismissed. The case comes here by appeal from this judgment of dismissal, with various assignments of error calling in question the correctness of the court's ruling.

The first and most important question raised by the assignments of error is, were the allegations set out and declared on as libelous, privileged, contained, as they were, in a petition or bill for injunction, and for the appointment of a receiver, and so far privileged that an action for libel cannot be maintained upon them, notwithstanding they are false and malicious, and were made under color and pretense of a suit without right? The object of the bill was to prevent a sale or other disposition of the property of the ice company at a sacrifice, to appoint a receiver, and have the business wound up. It does not appear to us that the allegations declared on as libelous were irrelevant, or impertinent or foreign to the end in view. It gives a history of alleged unlawful acts of the officers, assented to by the directory, plaintiff in the suit being one of the directors, in order to show that there was a concerted scheme among them to reduce the value of the stock, and enable them to buy it in, and control the company's affairs, and finally sell out its property to pay a doubtful debt for their own benefit, and thus effectually destroy all the interests of the small shareholders. It does not go outside of pertinent matters to make charges against the persons alleged to be leagued together to accomplish such design. It denominates the acts complained of as "a fraud," "a wrong," and "an injury," sufficient to invoke the equity powers of the court, and to authorize the relief sought. The bill was filed in a court of competent jurisdiction.

The demurrer and exceptions to plaintiff's suit admit that all the allegations declared on in the bill were maliciously false. There are two classes of privileged publications, — absolutely privileged, and conditionally privileged. It is the occasion on which any publication is made that gives it privilege. Proceedings in courts of justice, legislative proceedings, and petitions and memorials to legislatures, are said to be absolutely privileged. Townsh. Sland. & Lib. § 209, and note 2; Id. §§ 217, 221; Starkie, Sland. § 669, top p. 676. Where the privilege is conditional only, it is a prima facie defense to the action, but such defense may be overcome and rebutted by proof of actual malice and the falsity of the charge. The cases of Holt v. Parsons, 23 Tex. 9, and Behee v. Railroad, (decided at the Tyler term, 1888,) are cases of conditional privilege only. See 9 S. W. Rep. 449, and Bradstreet Co. v. Gill, Id. 753.

When the privilege is absolute, it is a complete defense, and cannot be rebutted or overcome by evidence that the publication was false and malicious.

In Hartsock v. Reddick, 6 Blackf. 255, where there had been accusation made by affidavit before a magistrate charging plaintiff with obtaining goods under false pretenses, the court declared the law to be that the person making such an affidavit was not subject to suit of libel therefor. The court said: "It makes no difference whether the charge be true or false, or whether it be sufficient to effect its object. If it be made in the due course of a legal or judicial proceeding, it is privileged, and cannot be the foundation of an action for defamation."

In Strauss v. Meyer, 48 Ill. 386, the libelous charges were made in a bill in chancery for injunction to prevent the execution of a trust, in which it was all ged that the trustee's "general character for honesty was bad," and that he was an unfit and improper person to execute the trust.

The court upheld the doctrine in Hartsock v. Reddick, and said: "Numerous other authorities might be cited, if this were a doubtful question, but reason, as well as authority, fully sustain the rule. If it were not so, in almost every vigorously contested case one of the parties would render himself liable to an action for libel." See Cook v. Hill, 3 Sandf. 341.

Garr v. Selden, 4 N. Y. 93, is to the same effect. The scandalous matter was contained in an affidavit filed in a judicial investigation. In reference to it the court say: "If the matter of the affidavit were pertinent or material to the motion, the law will not allow its truth or innocence to be drawn in question in an action for libel. It would not in that case be necessary to deny malice, as the law does not permit a party to allege in this form of action that the publication was false and malicious." Other authorities might be cited bearing more or less directly upon the point, in support of the rule that proceedings in courts are absolutely privileged, but we deem it unnecessary to discuss them. The authorities are by no means uniform in support of the rule,...