Times Pub. Co. v. Ray

• Decision Date: 25 November 1927
• Docket Number: (No. 366.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 1 S.W.2d 471
• Parties: TIMES PUB. CO. v. RAY.
• Court: Texas Court of Appeals

1 S.W.2d 471

TIMES PUB. CO. v. RAY.

(No. 366.)^*

Court of Civil Appeals of Texas. Eastland.

November 25, 1927.

Rehearing Denied January 6, 1928.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Action for libel by E. E. Ray against the Times Publishing Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Conner & McRae, of Eastland, for appellant.

Hawkins, Hawkins & David, of Breckenridge, for appellee.

HICKMAN, J.

Appellee recovered judgment against appellant in the court below for $4,000 actual damages on account of the publication by appellant in the Eastland Daily Telegram on May 28, 1926, of the following item, alleged by appellee to be libelous per se:

"Former Eastland Dealer Arrested under Sales Act.

"E. E. Ray, former owner of the Eastland Music Shop and now conducting a business at Breckenridge, was arrested and placed in jail last night on charges of false swearing and perjury. He is held in lieu of $1,000.00 bond which has not been made. It is alleged that when Ray sold his business in Eastland he appeared before Judge Sam Day and swore that he had paid off all creditors and that the business was free from incumbrance. Later it developed that several were unpaid and arrest on this occasion was staved off when Ray paid off and it was after this that Ray took the oath before Judge Day that the place was clear.

"Since then, however, Judge Ray stated, other bills have come in and the arrest of Ray was ordered under the Bulk Sales law."

The italics are ours, and are used to denote those portions of the published article which were not declared upon in appellee's petition; stars being inserted in the petition to indicate that omissions were being made.

The facts disclosed by the record are that the first affidavit made by appellee regarding his creditors was before the county judge of Eastland county and the second was before Sam Day, justice of the peace at Eastland. A complaint was lodged against him after the first affidavit was made; the offense charged being labeled "swindling." Another complaint was filed with Mr. Day after the making of the second affidavit; the offense described therein being false swearing. After this second complaint was filed either Mr. Day or some member of the sheriff's force at Eastland called the sheriff's office at Breckenridge by long-distance telephone and requested that appellee be taken into custody. A deputy sheriff at Breckenridge at once called at appellee's place of business, but, not finding him there, left instructions for him to call the sheriff's office upon his return. Shortly thereafter appellee returned, called the sheriff's office, and then went there in person, where he was taken into custody by the deputy. He was not placed in jail, but, at his request, was taken to the office of his attorneys in Breckenridge and left with said attorneys under their agreement to be responsible for him. In a short time a bond was prepared, which was approved by the sheriff at Breckenridge, and appellee, in company with one of his attorneys, drove to Eastland, presented the bond to the justice of the peace, Sam Day, and was released. The complaint did not charge perjury, and appellee was not placed in jail.

Omitting the formal parts and parts unnecessary to consider, the charge of the court was as follows:

"You are instructed that the statements in the article published in the Eastland Telegram of May 28, 1926, of the effect that the plaintiff was held in jail in lieu of $1,000 bond and that he had been charged with perjury, are libelous as a matter of law; and the law further presumes that the plaintiff sustained nominal damages, but leaves it to your consideration what amount, if any, shall be given as compensation for injury actually sustained thereby.

"Now, bearing in mind the above, you will answer the following question, and have same signed by your foreman, which answer will constitute your verdict in this case: What sum of money, if paid now in cash, would adequately compensate the plaintiff for injuries done him by the publication of said libelous matter?

"In answering the foregoing question, you are instructed that you may take into consideration any pecuniary loss or loss of business, if any, that plaintiff has suffered as a direct and proximate result of the publication of said libelous matter, and also any mental anguish, humiliation, or injury to his reputation which he suffered, if any, as a direct and proximate result of the publication of such libelous matter."

The first question to determine is whether the statement that appellee was charged with perjury is libelous per se. In determining whether this particular statement carved out of the article is libelous as a matter of law, the article as a whole must be considered, giving to all of the words contained therein that significance which would be given them by those who read the statement. In arriving at the sense in which defamatory language is used, it is necessary to consider the entire publication. A party will not be permitted to carve out isolated words or phrases and have them considered without reference to their settings. 17 R. C. L. § 54, pp. 313, 314; 36 C. J. § 22b, pp. 1157, 1158; Fawsett v. Clark, 48 Md. 494, 30 Am. Rep. 481; Bathrick v. Detroit Tribune Co., 50 Mich. 629, 16 N. W. 172, 45 Am. Rep. 63; Yakavicze v. Valentukevicious, 84 Conn. 350, 80 A. 94, Ann. Cas. 1912C, 1264; 36 C. J. § 15b, p. 1150; Smith v. Mo. Fidelity & Casualty Co., 190 Mo. App. 447, 177 S. W. 737; Israel v. Israel, 109 Mo. App. 376, 84 S. W. 456.

In the case of Bathrick v. Detroit Tribune Co., supra, the article distinctly charged the plaintiff with three criminal offenses; namely, seduction, adultery, and criminal abortion. In the opinion by Justice Cooley it was held that the three charges of criminal conduct were substantially one, charging in effect one piece of criminal conduct and not unconnected charges.

In the case of Yakavicze v. Valentukevicious, supra, this language is used:

"To say of one, `You murdered my brother; he never intended to shoot you when he drew his pistol on you,' is not a charge of murder, since the meaning of the charge is controlled by the occurrences which preceded and occasioned the killing."

In the case of Israel v. Israel, supra, this language is used:

"Actionable words may be uttered concerning a party with such explanatory statements, or in connection with such facts, as make it clear the words were neither used nor taken by listeners in their actionable sense; in which case they lose their actionable quality, and a party suing on them cannot recover."

Many authorities supporting the statement are cited in the opinion.

In the case of Smith v. Mo. Fidelity & Casualty Co., supra, this language is used:

"In a case where one person accused another of stealing corn, using words slanderous per se, but on every occasion of speaking the same stated to the hearers the fact that the corn was grown by plaintiff on leased land and sold by him in violation of his agreement to apply the same on the rent, `thus sending an antidote along with the poison, and showing a mistaken view of the law, rather than a malicious purpose, the plaintiff cannot recover.'"

Let us examine the entire article appearing in the Eastland Daily Telegram, in the light of the authorities, to determine whether the use of the word "perjury" in the article was libelous. The article states the nature of the charges made against appellee. It discloses that the basis of the entire complaint was an affidavit made in connection with the sale of a stock of merchandise under the Bulk Sales Law. The very language of the article excludes the idea that appellee had been charged by complaint with false swearing growing out of the transactions described therein, and in addition thereto had been charged with the offense of perjury growing out of other transactions not described. It is doubtful whether many persons who read the article knew the legal distinction between false swearing and perjury. To those persons, if any, to whom false swearing and perjury conveyed the same meaning, no harm resulted to appellee by the addition of the word "perjury," because it is the universally recognized rule in actions for libel that words are to be taken in the sense that they are understood by the reader. But, disregarding that consideration, it is undoubtedly true that any reader of the article who knew the distinction between false swearing and perjury knew, by reading the entire article, that the offense with which appellee was charged was false swearing and not perjury. The newspaper correctly described the charge, but did not correctly label it. To apply the figure of speech employed in one of the quotations above, the article itself furnished the antidote for the poison therein contained. We conclude that the statement in the article to the effect that appellee had been arrested on a charge of perjury, when construed in connection with the entire article and in the light of the facts, is not actionable at all.

The next question for determination is whether that portion of the article which states, in substance, that appellee was held in jail in lieu of a $1,000 bond was libelous as a matter of law.

Libel is defined in article 5430 of the Revised Statutes 1925. This article reads:

"A libel is a defamation expressed in printing or writing, * * * tending to injure the reputation of one who is alive, and thereby expose...