"After formal allegations, the plaintiff alleged in substance that he and one Erna Hillmer had been sued as co-defendants in the District Court of Karnes County, Texas, by one J. H. Asher; in which suit the said Asher charged and alleged that the said Hillmer had induced him by fraud to convey certain valuable lands situated in Karnes County, Texas, to her and further charged and alleged in said suit that this plaintiff (one of the defendants in the suit filed by the said Asher) was a party to the fraud practiced on him by the said Hillmer and had entered into a conspiracy with the said Hillmer to defraud him (Asher) out of his said property; that on the trial of said suit at Karnes County, an adverse judgment was rendered against the plaintiff herein; that on appeal of said cause to the Court of Civil Appeals for the 4th Supreme Judicial District of Texas, Hillmer v. Asher, 19 S.W.(2d) 89, the judgment of the trial court was affirmed, and in the opinion of the court so affirming said cause, it was held that the plaintiff (Wick) was guilty of fraud and conspiracy, or, at least
that he had a guilty knowledge of the fraud practiced by Erna Hillmer on the said Asher, and, therefore, was not an innocent purchaser of the real estate which had been conveyed to him by the said Hillmer; and in such opinion, the Court of Civil Appeals, among other things, said:
"`The old man was an easy mark, and in the course of a year probably $40,000.00 or $50,000.00 of lands and personalty had passed from the labor hardened hands of Asher into the deft hands of the San Antonio widow of more than one marital experience. The owner of the property was as helpless as a babe in the hands of the experienced widow, and he became her willing slave, ready to part with all he had to obtain her hand if not her heart. The facts connect Wicks with the scheme in a way that has not been and probably cannot be explained'; that thereafter, upon motion for rehearing filed by plaintiff in the Court of Civil Appeals, the said Court of Civil Appeals set aside its previous opinion and held that the evidence in said cause of Asher v. Hillmer, et al., was insufficient to sustain the finding that Wick had conspired with Erna Hillmer or that he was not an innocent purchaser of the land which he bought from Mrs. Hillmer, and reversed the judgment of the trial court and remanded the cause for a new trial; that thereafter, the plaintiff (Wick) applied to the Supreme Court of Texas for a writ of error to review the judgment of the Court of Civil Appeals, and that on November 27th, 1929, such application was granted; that on the 28th day of November, 1929, the defendant in this suit (Express Publishing Company) published in its daily newspaper, The San Antonio Express, the following purported report of said proceedings:
"`Supreme Court to Review Case of Karnes County Farmer Seeking to Recover Property from Widow (Express Austin Bureau)
"`Austin, Tex., Nov. 27. The Supreme Court Wednesday decided to hear the arguments and write an opinion in a case where an old farmer, more than 61 years of age, seeks recovery of land and money valued at thousands of dollars, from a twice widowed woman of 41 years of age whom he alleges promised to marry him. There are two cases, Erna Hillmer et al. vs. J. H. Asher and H. T. Wick vs. J. H. Asher, from Karnes County. The record asserts that Mrs. Hillmer has two living divorced husbands.
"`"The old man was an easy mark," reads the opinion of Chief Justice Fly of the San Antonio Supreme Court, in affirming judgment to recover to the old man his land and money, "and in the course of a year probably $40,000.00 or $50,000.00 of lands and personalty had passed from the labor hardened hands of Asher into the deft hands of the San Antonio widow of more than one marital experience. The owner of the property was as helpless as a babe in the hands of the experienced widow and he became her willing slave, ready to part with all he had to obtain her hand if not her heart. The facts connect Wicks with the scheme in a way that has not been and probably cannot be explained."
"`It was alleged by Asher that upon promises to marry him he had deeded four tracts of valuable farming land aggregating 850 acres, had given her $3,000. in cash and then $4,000 in cash and that his automobile valued at about $1,500 had also been given to the woman. Subsequently, she conveyed two tracts to Wick, one for 166 acres and the other for 395 acres. It was alleged that Wick was a conspirator with Erna and Asher sought the recovery of all and obtained a favorable judgment below which was affirmed by the San Antonio Appellate Court. It was alleged and sustained in Judge Fly's opinion that Wick conspired with Erna and therefore was not an innocent purchaser of the two tracts of land, hence Asher is entitled to recover.
"`It is stated in the opinion that Asher's life's earnings were heaped upon the widow in expectation of marrying her and that he never received any benefits in return for it; that he was an inexperienced, doting old farmer. He met the widow when the latter was nursing his sister according to the opinion.
"`Writ of error was granted because of errors by the courts below in their ruling as to the liability between Wick and Mrs. Hillmer.'
"The petition of this plaintiff then further alleged that said publication was libelous in that it contained false and untrue statements of and concerning plaintiff, and then at length set forth the particular respects in which the same was alleged to be false; and said petition further alleged that said publication was libelous, untrue and false in that it did not constitute a fair, true and impartial account of the proceedings which it purported to report; and then set out in detail the particulars wherein the same was not true, fair and impartial. The said petition
further alleged that the statement contained in said article, as...
