Wharton v. Chunn

• Decision Date: 02 January 1909
• Citation: 115 S.W. 887
• Parties: WHARTON v. CHUNN.
• Court: Texas Court of Appeals

115 S.W. 887

WHARTON v. CHUNN.

Court of Civil Appeals of Texas.

January 2, 1909.

Rehearing Denied January 30, 1909.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Action by R. D. Chunn against J. W. Wharton. From a judgment for plaintiff, defendant appeals. Affirmed.

Chandler & Keith, for appellant. Lee Riddle and Theodore Mack, for appellee.

SPEER, J.

A very substantial portion of the statement of facts contained in the record on this appeal is in the form of questions and answers, and therefore in violation of the statute requiring such statement to be in narrative form. We sustain appellee's motion to strike the same from the record. See People v. Evans (Tex. Civ. App.) 111 S. W. 756.

Without a statement of facts there is but one assignment of error which can be considered, and that arises on an exception to a paragraph in appellee's petition. The action was one by appellee against appellant for damages for slander and libel. The exception is, in effect, that appellee seeks a recovery for words alleged to be slanderous, which were uttered to the appellee in the presence of others upon an occasion when the appellee had sought from appellant a retraction of a prior slander; the contention being that the words spoken under such circumstances —that is, at the appellee's instance and request—were privileged, and therefore not actionable. But we rule against this contention for two reasons: First, the rule of privilege, under such circumstances, does not inure to the benefit of one who is himself the author of such slander; and, second, such language would, in any event, be actionable if spoken in malice, as appellee in this case alleges it was. See 25 Cyc. 392; Newell on Defamation, Slander & Libel, p. 515; Nott v. Stoddard, 38 Vt. 25, 88 Am. Dec. 633; Laughlin v. Schnitzer (Tex. Civ. App.) 106 S. W. 908.

Finding no error, we order that the judgment of the district court be affirmed.