Taber v. Aransas Harbor Terminal Ry.

• Decision Date: 25 February 1920
• Docket Number: (No. 6349.)
• Citation: 219 S.W. 860
• Parties: TABER v. ARANSAS HARBOR TERMINAL RY. et al.
• Court: Texas Court of Appeals

219 S.W. 860

TABER v. ARANSAS HARBOR TERMINAL RY. et al.

(No. 6349.)

Court of Civil Appeals of Texas. San Antonio.

February 25, 1920.

Rehearing Denied March 24, 1920.

Error from District Court, Nueces County; W. B. Hopkins, Judge.

Action by C. C. Taber against the Aransas Harbor Terminal Railway and another. Instructed verdict for defendant Railway, and plaintiff brings error. Reversed and remanded.

T. O. Woldert, of Houston, and J. D. Todd, of Corpus Christi, for plaintiff in error.

Denman, Franklin & McGown, of San Antonio, for defendants in error.

FLY, C. J.

This is an action for damages accruing by reason of a libel published by J. C. Moore, instituted by plaintiff in error, who will be designated as plaintiff, against defendants in error, the Aransas Pass Terminal Railway and J. C. Moore, its vice president, herein called defendants. The petition alleged that plaintiff was selling merchandise in the town of Port Aransas, Tex., in 1913; that plaintiff, at the solicitation of citizens of said town, addressed a communication to the Railroad Commission of Texas calling attention to the fact that the railway company had discriminated against the town of Port Aransas and its citizens; that plaintiff was not actuated by malice or ill will towards any one, but merely desired to protect the interests of himself and his fellow citizens. It was further alleged that the railway company, through its vice president, J. C. Moore, wrote a letter to the Railroad Commission denying the charge of discrimination, and containing the following matter, alleged to be libelous:

"Provided the complaint emanated from one C. C. Taber, I would add that it seems a pity that the commission's valuable time should be taken up by the consideration of complaints from such a source as in this instance. Mr. Taber is a merchant of Port Aransas, selling dry goods and notions, and some time prior and up to the time the Port Aransas paper suspended publication about three weeks ago advertised his stock for sale to close out, due, as I understand it, to lack of trade owing to his being a trouble maker of the worst kind and to such an extent that the better element of Port Aransas citizens are out with him."

The court, after hearing the evidence, instructed the jury to return a verdict for the defendant Aransas Harbor Terminal Railway.

The statutes of Texas give a full and complete definition of libel, and no other definitions can be considered in arriving at a conclusion as to whether a publication constitutes libel. The definition is:

"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." Rev. Stats. art. 5595; Koehler v. Dubose, 200 S. W. 238.

Undoubtedly on its face the language quoted was, under the statute, libelous. It was, as alleged by innuendo, a charge of unreliability, that his representations were not worthy of serious consideration, that he was a disturber in the community, and that the better element of the community would not associate with him. It clearly had the tendency to expose plaintiff to contempt or ridicule and financially injure him and would impeach his integrity and reputation. It was libelous per se. Cranfill v. Hayden, 97 Tex. 544, 80 S. W. 609. It was not claimed that the charges made by Moore were true. The only justification for the charges presented was that the letter in which the charges appeared was privileged, because addressed to the Railroad Commission of Texas, in answer to charges preferred by plaintiff against the railway company.

Privileged communications are not defined in the statutes of Texas, except as to publications by newspapers or periodicals, but the statute provides that nothing therein contained shall "take away any now or at any time heretofore existing defense to a civil action for libel, either at common law or otherwise, but all such defenses are hereby expressly preserved." That language was added by an amendment of April 9, 1917 (Acts 1917, c. 206, § 1), of article 5598, Vernon's Tex. Civ. and Crim. Stats. 1918 Supp. Koehler v. Dubose, herein cited. It follows that resort must be had to authorities other than the statute to ascertain whether or not a communication addressed to the Railroad Commission under the facts of this case is a privileged communication.

Privileged communications are divided into two classes, absolute and qualified, and the great underlying principle upon which each class rests is public policy, although peculiarly so in the case of absolute privilege. In the latter case it is deemed best to allow absolute freedom and protection to any and all utterances or publications, even though false and malicious for the sake of the public good, and is justified on the ground that in civilized society individual personal rights must be surrendered for the public good. This class of privileged communications under free institutions must be greatly restricted. Qualified privilege exists in a much larger number of cases and comprehends all bona fide communications upon any subject-matter in which the author of the communication has an interest, or a duty to perform to another having a corresponding duty,...