St. Louis S. W. Ry. Co. of Texas v. McArthur

• Decision Date: 14 January 1903
• Citation: 72 S.W. 76
• Parties: ST. LOUIS S. W. RY. CO. OF TEXAS v. McARTHUR.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

72 S.W. 76

ST. LOUIS S. W. RY. CO. OF TEXAS v. McARTHUR.^*

Court of Civil Appeals of Texas.

January 14, 1903.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by N. J. McArthur against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

E. B. Perkins and Clark & Bolinger, for appellant. Eugene Williams, for appellee.

KEY, J.

This is a libel suit, resulting in a verdict and judgment for the plaintiff for $500 actual and $1,250 exemplary damages, and the defendant railway company has appealed.

The alleged libel reads as follows: "Cotton Belt Route. St. Louis Southwestern Railway Company. Office of General Passenger and Ticket Agent. St. Louis, April 21st, 1897. Daily Times, Waco, Texas: I understand from newspaper clippings that a Mr. H. T. Staiti and Mr. N. J. McArthur are traveling around through Arkansas & Texas, representing themselves as being connected with the Cotton Belt Route as special advertising agents, claiming that the Cotton Belt Route proposes to issue a folder descriptive of the territory, and that they are soliciting advertisements and writeups for this folder in the name of the Cotton Belt Route. This is to advise that the gentlemen referred to have no connection whatever with this company. This company does not propose to issue any such folder as intimated by them, and disclaim any responsibility whatever for any of their acts in such matter. Please notify the public accordingly. E. W. Le Baume, G. P. & T. A." This document was published by the defendant in the Times Herald at Waco, and in several other newspapers in the state.

The first assignment of error reads as follows: "Verdict of the jury is contrary to the evidence, and is not supported by the evidence, in this: That the undisputed testimony, including the statements and admissions of the plaintiff himself, showed that the publication complained of was true in every respect, in substance and in fact, and the same constituted no libel, and the jury should have found a verdict for the defendant on this issue." We overrule this assignment, because the plaintiff's testimony warranted a finding to the effect that he had a valid contract with the defendant, by which the latter obligated itself to place within folders issued by it certain printed matter, to be prepared by the plaintiff, descriptive of towns in the territory along and tributary to the defendant's railroad, and to circulate said printed matter with said folders. This being the case, the undisputed testimony does not show that the publication complained of was true in every respect, as stated in the assignment of error. On the contrary, giving credence to the testimony of the plaintiff, as the jury doubtless did, the statement that the plaintiff had no connection whatever with the defendant company was untrue and misleading and the statement that it did not propose to issue any such folder was also misleading; and the publication, considered as a whole, was calculated to produce in the minds of its readers a belief that the plaintiff was attempting to cheat, swindle, and defraud the public.

The second assignment of error complains of the verdict upon the ground that the publication was privileged, the contention being that it was made for the protection of the defendant's interests, and that there was no evidence of express malice. The court did not submit to the jury the question of privileged communication, and the only instruction requested on that subject declared, as a matter of law, that the communication was privileged, and that the plaintiff could not recover unless the jury found that the publication was made with express malice. The publication was not absolutely privileged, and, whether or not it fell within the class denominated "qualifiedly or conditionally privileged," among other considerations, depended upon whether it was made either upon express malice or in bad faith. If made in bad faith, though not upon express malice, it was not a privileged communication; and, as the instruction requested on that subject omitted the question of bad faith, it was properly...