2 S.W.2d 833 | Tex. Comm'n App. | 1928
The defendant in error, Fred H. Lancaster, recovered judgment in the district court against the plaintiff in error, Express Publishing Company, for the sum of $7,500 actual damages and $7,500 exemplary damages resulting from an alleged libelous article published in the San Antonio Express on December 23, 1917. That judgment was affirmed by the Court of Civil Appeals. The case having been brought up on writ of error, Section B of the Commission of Appeals, in an opinion written by Presiding Judge Powell, recommended that the judgments of the trial court and the Court of Civil Appeals be affirmed. 285 S. W. 810. On consideration of a motion for rehearing, Judge Powell and his associates concluded that the part of the trial court’s judgment which awards recovery of exemplary damages should be reversed, but that part which awarded actual damages should be permitted to stand, and all previous orders were set aside by the Supreme ■Court.
It is our opinion that the evidence contained in the record does not raise the issue of actual malice on the part of the plaintiff in error in making the publication complained of. Therefore the award of exemplary damages by the trial court is erroneous. But, since the case appears to have been fully developed in this respect, a remand of the case should not be made, unless other errors be found.
The published - article in question bore the following headlines, to wit:
“Two Local Officers Must Go, by Verdict of Committee era Vice. Action to be Recommended to Mayor in Extensive Report to be Filed During the Present Week. Drastic Arraignment of Peace Officers Expected. After Month of Diligent Investigation, Committee Finds that Charges of Corruption Made by Army Officer are True. Threat of Martial Law if Conditions are Not Remedied. The Chief of Police and Police Judge of San Antonio Must Go.”
The committee referred to in the above publication was composed of several citizens of San Antonio, who had been appointed by the chamber of commerce to investigate and report on conditions respecting the existence of brothels and gambling houses in San Antonio. The defendant in error, Lancaster, was the chief of police of that city at the time, and was free from corruption in office. The com
The headlines in question clearly, we think, impute to Lancaster corruption in the administration of the office of chief of police. Cotulla v. Kerr, 74 Tex. 94, 11 S. W. 1058, 15 Am. St. Rep. 819. Such an imputation is without the domain of reasonable and fair comment or criticism of his official acts, and therefore not privileged under the statute. Belo v. Looney, 112 Tex. 178, 246 S. W. 777. The accusation of corruption being libelous, untrue, and unprivileged, the plaintiff in error became liable to Lancaster in damages, as compensation for the wrong done him, irrespective of the innocent motives of the plaintiff in error in publishing the accusation.
We have given due consideration to all other matters of which complaint is made by the plaintiff in error, and we find no reversible error in them.
We therefore recommend that the judgments of the district court and Court of Civil Appeals be so reformed as to allow Lancaster his actual damages in the sum of $7,500, with interest thereon at the rate of 6 per cent, per annum from May 30, 1924, the date of the district court judgment; that, as so reformed, the judgments of the district court and Court of Civil Appeals be affirmed. We further recommend that the defendant in error pay all costs in the Supreme Court and Court of Civil Appeals, and that the plaintiff in error pay all costs of court in the district court.
OURETON, C. J. Judgments of the district court and Court of Civil Appeals reformed so as to award defendant in error $7,500 actual damages, with 6 per cent, per annum interest from May 30, 1924. Costs taxed as recommended by the Commission of Appeals.
