Trexler v. El Paso Times, Inc.

Decision Date19 March 1969
Docket NumberNo. 6007,6007
Citation439 S.W.2d 883
PartiesRichard C. TREXLER, Appellant, v. EL PASO TIMES, INC., a corporation, Appellee. . El Paso
CourtTexas Court of Appeals

J. B. Ochoa, Jr., El Paso, Warren Burnett, Richard J. Clarkson, Odessa, for appellant.

Scott, Hulse, Marshall & Feuille, George W. Finger, Richard Munzinger, El Paso, for appellee.


FRASER, Chief Justice.

This is a suit for libel filed by Richard C. Trexler, a former member of the faculty of the University of Texas at El Paso, against an El Paso newspaper known as the El Paso Times. The said newspaper has a section in its publication called, 'Speaking the Public Mind', which are letters to the editor column, or what is more commonly known as open letters written to and published by the newspaper. This particular suit is based on a letter written by one Cris Louke, while plaintiff was a faculty member of said University, pertaining to plaintiff-appellant's actions and public statements, and intimating that said plaintiff was guilty of the crime of treason. On the trial of the case the jury found that the letter did convey to the ordinary reader that the plaintiff was guilty of the crime of treason. The jury further found that the publication was libelous but had not been actuated by actual malice, nor had the plaintiff suffered damages of any sort. In effect, the jury found the article libelous, but did not award plaintiff any damages.

Appellant's first point complains of the court having allowed the following question to be asked and answered during the cross examination of the witness Dr. Vincent Ravel, M.D. Such question and answer are as follows:

'Q Are you familiar with the position taken by the Texas Civil Liberties Union in asking the University of Texas regents to rescind new rules which would penalize faculty or students for demonstrating or using, selling or possessing drugs such as L.S.D. or marijuana?

'A No, I'm not.'

Appellant maintains that the question was artfully designed to suggest that Dr. Ravel and Dr. Richard C. Trexler (both being members of said organization) believe that the students of the University of Texas should have complete freedom to use LSD or marijuana, without ever saying so. Appellee calls our attention to the fact that the article itself was not introduced into evidence, and the only evidence of the witness was the above-quoted inquiry, and that appellant's objections were made outside the presence of the jury. Appellee also asserts that at no time did appellant object to the article on any ground of materiality or relevancy, nor did appellant specify the manner in which the question would be 'prejudicial' to plaintiff. Our opinion is that while the question itself if probably improper and constituted error in being asked, we do feel the error was not sufficient or inflammatory enough to be reasonably calculated to cause the rendition of an improper judgment. As will be noted, the question was answered shortly and abruptly, 'No, I'm not.' We think this matter is covered in the case of Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (S.Ct.1958). The court there stated as follows:

'* * * There must be some logical connection, either directly or by inference, between the fact offered and the fact to be proved, to make the former circumstance relevant to the latter. 17 Tex.Jur., Sec. 105, p. 337.

'This brings us to a consideration of the question of whether the improper evidence probably influenced the verdict unfavorably to petitioner. This question is to be determined as matter of our judgment in the light of the record as a whole. Pittman, in order to discharge his burden of establishing the inadmissible evidence was prejudicial, was not required to prove or demonstrate that but for the erroneous action of the trial court in admitting the testimony, a different judgment would necessarily have resulted. See Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, 192; Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115.

It was only necessary that he establish that the evidence was reasonably calculated to and probably did cause the rendition of an improper judgment. See American General Ins. Co. v. Jones, 152 Tex. 99, 255 S.W.2d 502; Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931, 944; Rules 434 and 503, Texas Rules of Civil Procedure.'

For the reasons above set forth, appellant's Point 1 is overruled.

Appellant's Point 2 alleges that the trial court erred in submitting Issue or Question No. 2, which asked if defendant was activated by actual malice in publishing Cris Louke's letter.

Question or Issue No. 2 is as follows:

'From a preponderance of the evidence, do you find that the publication by the El Paso Times of the Cris Louke's letter (Plaintiff's Exhibit 1) was actuated by actual malice? Answer 'Yes' or 'No'.

'In connection with this question I instruct you as follows: 'Actual malice', as that term is used in this question, means done with a desire or intent to injure a person through a deliberate falsehood or with actual knowledge of its probable falsity.

'We answer No'

We think appellant's objection to the submission of this issue is proper, as, in our opinion, it places a greater burden on the plaintiff than is required by the law. This we feel to be true because it includes a definition of 'actual malice' which we think is not a correct definition under the facts and circumstances of this lawsuit, as the definition requires the jury to determine whether the act done, to-wit, the publication of the Louke letter, was done with a desire or intent to injure a person through a deliberate falsehood or with actual knowledge of its probable falsity. Viewing the record as a whole, the wording of the issue and the jury's answer to us clearly indicate that they felt that while the letter was libelous, nevertheless defendant was not entitled to any damages; and as has been said in cases in the United States Supreme Court, the jury 'probably thought' it had to explore...

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1 cases
  • El Paso Times, Inc. v. Trexler
    • United States
    • Texas Supreme Court
    • November 12, 1969
    ...court's charge to the jury was incorrect and therefore, the trial court's judgment was reversed and the cause remanded for a new trial. 439 S.W.2d 883. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial Plaintiff was a professor at The University of T......

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