*1 damages tensen’s election to resort a common-law action for insisting by policy. that Christensen Hartford’s was.covered being place complain He cannot he at left where chose him- holding policy expressly self Aiid in are his contract. so we right passing would be had he what Christensen’s elected policy. to stand on the reversed, judgments judg-
It follows that the below are compensation ment in the petitioner, suit rendered in favor of Indemnity Company. Hartford Accident and Petitioner Chris- damages tensen’s common-law action for is remanded to the trial court.
Opinion February 15, delivered 1950.
Rehearing April 12, overruled 1950. Fitzjarrald Publishing
J. O. v. Panhandle Incorporated. Company,
No. A-2423. Decided February 22, 1950. Rehearing overruled April (228 499.) W., 2d Series, *3 Hamilton, Memphis, Hamilton & Deaver and Sam J. all of petitioner. for holding Appeals conditionally
The Court of Civil erred in public as fair comment on conduct of a the official officer, published by the false statement the defendant in its April 29, 1948, issue of the Amarillo Times because said against plaintiff statement was false and was as an individual Eng. Co., a public and not as officer. Bell Pub. Co. v. Garrett 197; Texas, 89, Kerr, 170 2d v. 74 S. W. Cotulla 1058; Light Lewy, 11 S. W. 574.W. San Antonio Pub. Co. v. 113 S. Bragg, Memphis, Sanders, Scott, W. J. Saunders & Smith respondent. Scott, Amarillo, and Albert E. T. Smith and all of holding Appeals The Court of did not err in that comment, statement in a fair and reasonable and was private and not a that the article referred to a officer 125; Ferguson, Ex- citizen. Houston Press Co. S. W. press Printing 354, 358; Copeland, Moore v. Texas Co. v. Davis, 27 2d 153. Sharp opinion
Mr. of the Court. Justice delivered the against suit, by Fitzjarrald Pan- This is libel filed J. 0. damages Inc., Publishing Company, actuhl handle to recover damages exemplary in the sum $25,000.00 in the sum of and $10,000.00. petitioner entitled to was found that exemplary dam- damages $14,333.00. actual No in the sum of
ages petitioner. Judgment were awarded was entered the trial court in Fitzjarrald favor of $14,333.00, for the sum of and re- spondent perfected appeal an to the Court of Civil at Amarillo. That and judgment court, court reversed the of the trial judgment rendered respondent. in favor of 223 S. 2d 635. alleged Petitioner that at the time of the by respondent articles newspaper, Times, its The Amarillo concerning petitioner, county attorney he County; of Hall that said complained articles libelous, pub- were and were lished with injure him, intent purpose for the sub- jecting public hatred, him to contempt, ridicule, and fur- ther, purpose for the impeaching honesty, integrity, his reputation, private both public official; as citizen and aas that published said by respondent false, defamatory, statements were malicious, willfully libelous, damaging him, and therefore and were maliciously express with to- malice petitioner, wards purpose inferring for the innuendo petitioner wholly County county unfit to serve Hall attorney. alleged Petitioner further just no there was respondent cause for vicious, to make such statements false about him. Respondent answered, substance, publications petitioner complains about which privileged, were or at least conditionally privileged, they were fair and reason- report able comment about matter of interest and
concern, and published by respondent that such statements were malice, general information, without tioner peti- at a time when *4 serving county attorney running as and was for re- election, publications and that such do not create a cause of action plained Respondent alleged for libel. also the matters com- true, respondent,
of were or that after a careful con- inquiry County, scientious in Hall them true believed to be at publication, the time of their and that were not the articles maliciously published, any pub- nor were of the statements wrongful intent, lished with malice or or with intention injure petitioner. alleged whatever It was the further Raymond contents of a letter that Ballew 2500 sent to some County 19, 1948, making substantially in April voters Hall on respondent publica- the same statements that had in made its tions, publications approxi- and which went into the homes of mately County. pleaded 100 in subscribers It was further Hall given pub- complained the statements of had wide been licity County generally, writing orally, in Hall in and both published Amarillo before such statements been in The .had Times. grew political of the out in Hall facts case of race The Ballew, long-time During Raymond
County. year the County, in Hall had been times convicted resident of several Law, violating county Liquor county for the the court of that totalling $8,000.00. paid He had he more than which fines incumbent, against County the for Sheriff of Hall announced Earl vigorous conducting Raymond cam- Hill. Ballew was attacking sheriff, paign and manner for the office of the alleged apprehended, in the law had been which violators County had conducted. the manner in which the Hall Court been the approximately circular letters to Ballew mailed out county, apparently in he criticized voters of that which letters sheriff, county attorney Hall county judge, and of running County, re-election. all of whom were Times, copy A this Amarillo of letter was sent to The upon Memphis, receipt reporters of the were sent to letter two county County, upon letter and seat Hall check political county. reporters the Ballew, interviewed situation in that The including Hill, citizens, some Sheriff and several other Negroes. They petitioner, tried he declined to interview but charges letter made therein. discuss with them Ballew or the thought management subject The Amarillo Times public, story matter furnished a to the news interest along published question, a result with the three articles in upon some articles others. his claim three Petitioner based 29, 1948, published April 1948, April respectively on August 9, Only published April portion of the article on 29, 1948, jury. Ballew was submitted to the This article entirety opinion letter are set out their in the of the Court they (223 635), space of Civil and to save repeated will trial submitted not be here. The court to the charge article paragraph portions 3 of certain its April 29, as follows: appearing in The further “You are instructed the article 29th, 1948, ‘Memphis April Amarillo Times headlined dated which, Kangaroo Court,’ portion Clique Political Accused upon wit, section of where ‘But hill the southeast town eight negroes negroes news- interviewed live—at least story living County Attor- terror Hall men told a ney offi- They declared sheriff’s law enforcement officers. *5 nightly the county attorney pay visits cers and the almost They Fitzjarrald close said that" fired several shots hill. to once negro paragraph just out in of a to scare him.’ is set the feet is, original petition as a plaintiff’s 8 of amended the second law, Fitzjarrald, that plaintiff matter of libel the J. O. part defendant, Publishing
malice pany, of the Panhandle Com- imputed law, as matter of defendant to the unless defendant, Publishing Company Panhandle establishes greater weight hearing your of the evidence introduced in charges appearing material in such to the article plaintiff, Fitzjarrald, substantially true, is, J. are 0. are true in substance.
“Bearing foregoing instructions, please in mind the answer following questions:
“QUESTION 1. NO. greater weight your “From the of the evidence introduced in hearing, you charges appearing do find that material in the newspaper relating paragraph charge article mentioned in 3 of this plaintiff, Fitzjarrald, substantially
to the J. 0. are true? Answer or Yes No.
“Answer No.”
“QUESTION NO. 2. damage you find, any, “How much actual do should be plaintiff, Fitzjarrald, by pub- awarded to the J. reason of April lication of the article 1948? Answer in dollars cents. $14,333.00.”
“Answer
Question No. 3 reads: newspaper April 29th, 1948, “Was article of headlined ‘Memphis Kangaroo Clique pub- Political Accused of Court’ Publishing lished and circulated defendant Panhandle Com- pany plaintiff Fitzjarrald? ‘actual malice’ with toward the J. 0. Answer Yes No.” jury answered, To this ex- “No.” Therefore no
emplary damages petitioner. were awarded Respondent filed a motion for an and also instructed verdict judgment veredicto, motion for non obstante and both mo- Respondent presented many excep- tions were overruled. also charge, including expla- tions to questions, the trial court’s nations, and definitions. Respondent judgment attacked the trial court on ground libelous, any part that neither the article nor thereof was
contending every part the article and of it at least conditionally privileged; and, further, condition sole upon of whether the article was whether it based *6 by respondent with actual malice was and circulated petitioner. jury The the article towards published found that had been by respondent
and with actual malice to- circulated petitioner. Respondent in Court of wards contended Civil finding in Appeals rendering court erred that in view of such the trial respondent. judgment of The Court Civil every part it referred the acts held that the article and of conditionally officials, petitioner and it of and other holding qualifiedly privileged, and or in view of this existed, finding of actual malice it reversed no judgment of trial court. and rendered the alleged only The libelous trial court limited its to the copied para appearing newspaper in statements in the article graph charge; 3 of its did not submit since the trial court article, jury questions portions to the to other by petitioner portions request and no was made to submit other article, any published by respondent, or other articles language this Court is limited to consideration of the con charge. paragraph tained in 3 of the court’s question presented language printed The here is whether the justifies recovery a judgment without actual malice petitioner against respondent. in favor libel Legislature of this State announced rule to what 5430, constitutes libel the enactment in 1901 of Article Statutes, 1948, Vernon’s Texas Civil which reads: “A expressed printing writing, libel is a defamation or or signs pictures, drawings tending or to blacken the memory dead, tending reputation injure or of one alive, thereby expose who is hatred, contempt him to ridicule, injury, impeach honesty, or or financial or to in- tegrity, reputation one, any publish or or virtue toor any thereby expose natural person defects of one and such hatred, ridicule, injury.” financial or privileged may The law has defined certain matters that published by any newspaper being without in an liable action 5432, Statutes, 1948, for libel. Article Vernon’s Texas 1901, originally Leg., chap. 26, 30, p. enacted 27th Acts 25, Leg., chap. p. 34, was amended in again Acts 36th and was Leg., chap. p. amended in Acts 40th 121. This part article now reads as follows: following by any newspaper
“The matters periodical and shall not be made shall be deemed the basis of action for libel. s|i :¡í
i-t t\t # *7 “4. A and fair of the official reasonable comment or criticism public public acts of concern officials and of other matters of general published for information.” Statutes, 5433, 1948, Article Vernon’s Texas reads: “Nothing repeal to or title shall construed amend this be any penal libel, away any subject nor to take now law the any existing or at to action for time heretofore defense a civil libel, otherwise, all such defenses either at common law or but hereby expressly preserved.” are 5430, 5431, 5433, 5432,
Articles and Vernon’s Texas Civil 1948, regard Statutes, ing clearly policy declare the of this State right protects a The law citizen libel. reputation good publica to defend his name from libelous tions, right guarded. zealously Bell and this is Pub. Co. v. Gar Engineering 197; Co., 51, rett 2d Belo & 141 Texas 170 S. W. 777; Looney, 160, Express v. Pub. Co. Co. 246 S. W. Keeran, App., v. law does Tex. Com. 284 S. 913. The W. give right publish newspapers statements the unrestricted to false, construing and in this about officers that are untrue general publication a that, a rule law concerning courts have held “As per se, public officer, must a in order to be libelous as, subject true, removal if would him to be of such a character 1058, 89, 15 Kerr, 11 W. from v. 74 S. office.” Cotulla Texas Webster, 819; App., 260 Rep. Tex. Com. S. W. Am. St. v. Nunn 157; Jur., 606, p. 27 sec. 12. Tex. office, person’ public and while is a candidate When issue, places office, thereby his character in
he holds an he such His office concerned. qualifications in so far his for the are as public are matters of office character and fitness hold the concern, subjects for discussion fair proper and are general in comment, may published for which reasonable comment fair “a reasonable and The authorizes formation. law during person his his acts and conduct of or criticism” of the tenure, during candidacy his official for office or privileged criticism is office, or and such comment fitness for the Copeland, Printing 64 good Express v. Co. if made in faith. App., 218 Wilkins, 354; Express Tex. Civ. Pub. v. Texas Co. App., dis- Leatherwood, writ 614; Tex. Civ. v. S. W. Snider 95 Huntress, missed, Light 1107; v. Tex. 49 S. W. 2d Pub. Co. Civ. Davis, App., 1168; App., 199 Moore v. Tex. 16 S. Civ. W. W. 153; 380, App., Cooksey 2d McGuire, affirmed Tex. 2d v. Com. Printing 480; App., Houston Tex. 146 S. 2d Civ. 312, approved by Hunter, App., 105 Tex. S. W. 2d Co. Civ. 1043; Supreme 27 Tex. Court 129 Texas 106 S. W. S., Jur., 45; p. 219, 134b. p. sec. J. The rule sec. C. State, statement of fact
also in this “that false established officer, concerning in a discussion even made public concern, privileged fair comment.” matter Engineering Co., 141 Texas Bell Pub. Co. v. Garrett S. W.
2d 197. specifically provides
Article 5432 now by any newspaper periodical certain matters “shall be deemed made not be the basis action libel.” shall maga- clearly designed permit newspapers Act was publish zines obtain and information on matters and *8 regarding recognizes public candidates for office. The law also enlightened citizenry necessary that an is to maintain an honest government, and efficient office are entitled to and those for candidates for who vote the facts such
have to candidates’ petitioner character and fitness to hold office. In this case County Attorney County, Hall a of and was candidate for fight undisputed political re-election. It is progress that a bitter was in county, by in convincingly that as is shown Ballew’s running sheriff, letter. While Ballew was for of the office his county attorney letter shows that the candidate for the office of target a was also will not for his statements. In letter “I his he said: county attorney carry gun pull allow a to a around and Negroes just it a county attorney I to scare them. will not let office, try Unquestionably run the sheriff’s nor will I to run his.” county attorney these statements about the other officers widely County, copy were in Hall circulated and a of this letter political was sent to The Times. That situation Amarillo a of interesting publisher newspaper this kind would be the public quite reporters and to the obvious. Two were sent to County investigate, Hall Hill and Sheriff several other citizens, including Negroes, report- some were interviewed. The petitioner undertook ers to interview with him and discuss they gathered information political had about the situation in county, charges that but he in declined to comment on the made by they the letter circulated Ballew or on the facts that had gathered from others. opinion appears The Court of in said: “It its us, article, after a careful entire of that consideration of the
portion by upon appellee declared and submitted same article, together jury, with the remainder of the gave concerning same, appellant the source evidence that of its contained information the source of the statements article; through reporters, in it interviewed the its that parties article, not in that men- mentioned and some were impartial gave tioned, main, quoting a fair and them report said; reporters appellant’s tried to of what each appellee the matters to comment on interview but he declined interested, ap- say he not which statement further pellant than to appellant appears quoted It in the article. further gave campaign report political and did a fair sides both implication not or otherwise vouch the truthfulness appears article of the statements made. It further good every part it written in faith and of was finding ample support that no there evidence to part appellant.” actual malice existed on the provides comment law and fair reasonable criticism officer or candidate acts and conduct of apply privileged; does where office is but this rule good af newspaper goes beyond privilege faith passing publishes In law and an article with malice. forded libelous, upon language be con complained it must of as light circumstances under sidered in the of all the facts and Hunter, Printing Tex. Civ. which was App., 1043; Co. v. it used. Houston 652, 312, 2d 2d 106 S. W. 105 S. affirmed 129 Texas W. 252; Leverett, App., Tex. 52 S. Moore v. Com. W. 609; Hayden, v. Gal 97 Texas Guisti Cranfill Tribune, veston 150 S. W. *9 respondent published the article shows The that vidence published item, jury as a and the that was with news found it officer, and petitioner out as an malice. The article refers to presumption good Respondent publish the of faith obtained. ing give description trying a of the article was to its readers political County. reporters the Hall had found in situation its petitioner damages publication In for order for to recover the of a to privileged, statement that the was him was burden prove finding respondent actuated obtain was repeately publishing held malice in has the article. This Court of lan malice from the character the cannot inferred guage prove used, it. privileged, to other evidence without 157; Express Webster, App., Nunn W. v. Tex. 260 S. Com. 810; Lancaster, App., Pub. Simmons v. 285 S. W. Co. Tex. Com. 612; Dickson, International et al. App., v. Tex. 213 S. W. Com.
97 Edmundson, 181; App., 222 & R. Co. v. Tex. G. N. Com. S. W. Wheat, 212, Enterprise App., v. Tex. Co. Civ. 290 S. W. writ dismissed; Leverett, App., 52 2d Moore v. Tex. W. Com. 252; Gill, 117, 753, 2 L. R. Bradstreet v. 72 Texas 9 S. W. Co. Co., 405; 768; Ry. Rep. Behee Pac. 71 A. 13 Am. St. v. Missouri 424, 449; Wilkins, Express Texas 9 S. Tex. Civ. W. Pub. Co. App., 218 S. W. portion
The trial court the the held that article submit charge jury per in paragraph ted to 3 of its was libelous se. disagreed holding, with Court such language attorney county held that used referred to officials, conditionally quali and fiedly privileged. or other and under law was publication not or Whether generally If the of law for court to determine. language ambiguous, used facts and circum where the surrounding undisputed, publication are for the stances it is privilegled. Pub. court to decide or not it Southern whether 1014; Foster, App., Print Co. v. Tex. 53 S. 2d Houston Com. W. Hunter, ing App., 312, 2d affirmed Co. v. Tex. Civ. 105 S. W. Wilkins, 652, 1043; Express 106 Pub. Co. v. S. W. Jur., 52, App., 614; p. 686, Tex. 218 Tex. sec. Civ. S. W. 27 ordinarily cited in is a and cases question footnotes. The issue of malice Lights, Tex. for the to determine. Dickson v. Co., 834; Ry. 71 App., v. Missouri Pacific 170 S. Behee Civ. 449; Jur., cases p. sec. 9 27 Tex. Texas in footnotes. cited had the harsh
Article was enacted soften rule damages subjected newspapers ters, publishing mat certain for being newspapers, liable for and authorized without libel, fair publish “A comment or action for reasonable public of other mat criticism the official acts of officials general To information.” concern ters case entire undisputed facts this under the hold portion paragraph 3 of court’s of the article contained charge place Article per se a construction on would libelous therein, language and would justified used very purpose was enacted. which law thwart newspapers to privilege of The liberal rule public of- acts of the official reasonable fair comment true apply an article not to the ficials does not office. subject to removal from official which would paragraph of the court’s Among contained in the statements *10 Fitzjarrald fired following: “They once charge said that is the ” If negro ‘just to scare him.’ of a feet several shots close to the just true, quoted respondent right statement was had the publish true, se, to per it. If it it was libelous because ground it awas for the removal of the official from office. Article judge 5970 of the statute authorizes district to remove a county attorney from office for misconduct. official Article 5973 part “By misconduct,’ reads as follows: ‘official used herein county officers, with reference any to is meant unlawful be- office, havior in relation to the duties of his wilful in char- its acter, any officer intrusted in manner with the adminis- * * justice, laws; tration of execution of the If the foregoing true, petitioner subject prosecu- statement was provisions 474, 480, tion under 480a, of Articles and Ver- Code, non’s Texas Penal holding The trial court inwas error in all state paragraph charge
ments contained in 3 of the were libelous per se, privileged. because some of the statements were Court of holding erred in that all of the state privileged. ments However, were this case must be reversed Respondent charge other excepted reasons. to the court’s questions basically following (1) reasons: Because paragraph statements, 3 contains several all of which held were Question per se; the trial (2) court to be libelous because multifarious, No. 1 jury and submits to the that all the ma charges true, terial deprived respond in the article were and it right ent jury pass upon of the to have the each statement only contained therein and to answer whether all or some of the Ques false; (3) statements therein were true or because jury damages tion 3No. authorized the find the amount of publication April 29, 1948, for the entire article of does not jury portions limit the consideration of the to those privileged. of the article not pleadings
If the evidence a case raise issue as to published whether an ledged privi- article contains statements that are per se, proper questions statements that are libelous relating to such jury. statements should be submitted All privileged jury statements that are should submitted to the they malice, for them to determine whether were with per and all statements libelous se should be submitted to the they for them to whether true or Each determine are false. separately. Respondent statement should be submitted had the right jury pass upon separately, to have each statement damages recoverable, were the instruction of should the court damages resulting have limited the recoverable from the to those publication pub- found have statements been lished with malice and the of those statements *11 per false. Bell Pub. Co. v. Garrett En- se found to be libelous gineering Co., 197; 2d Times Pub. 170 S. Co. App., App., affirmed Tex. Com. Ray, Tex. Civ. 165. 12 S. 2dW. of judgment court and Court
The of trial court for reversed, trial this is remanded are cause proceedings. further
Opinion February delivered joined by Smedley Justices Garwood, Mr. Justice concurring. Hart, concurring opinion, majority I result am While of the important reluctant of certain statements law to subscribe to therein, likely difficulty in future cases. which seem to cause principally The statement I refer reads: “The liberal to which privilege newspapers to a rule of reasonable to the apply not public fair acts of does comment of official officials subject publication to the true which would an article not public this a I fear that to removal from office.” official (a) statement matters: the character confuses two distinct' se, is, charge publication per or action- as libelous proof plaintiff able without actual malice of the de- damage plaintiff; (b) proof special fendant or to the play privilege, a into the matter of which is defense comes only publication is otherwise when it is determined that charges publication fact an officer with actionable. The that the (a) type pertinent is indeed but an offense of the indicated public (b). pertinent at all Publications made about not private differently publications than about officials are treated vigorous and untrue condemna- in that even a rather individuals per se un- tion of a as an official is libelous official may charges for which he be re- less it him with an offense private office, of a whereas the same condemnation moved from parallel might per point a has well be libelous se. The individual general slander, unchastity a in the law of in which accusation of per if se if victim woman but otherwise is actionable is privilege question not one is man. This is of the the victim speaker, written or the words the writer or but whether though privilege. no spoken law even there be actionable are comment”, any privilege, that mat- privilege “fair defamatory actionable of ter, words are presupposes that to make plaintiff to do more and without need themselves concerning they him. prove were than to case arrogant be, example, “an Thus, official said an despicable office”, character should not hold allowed to privilege probably of “fair comment” does arise, because no sufficient cause for removal from office is charged, though regarding person similar who might neither an official nor a candidate for office well justify recovery upon proof concerning mere it was made plaintiff, accordingly plead and the defendant would have to prove privilege judgment. hand, his or suffer On the other *12 theoretically cases are possible, publica- at least in which the charges something in justify tion effect that would removal of being office, yet, the officer—victim from his in the nature of comment, might a privileged be In as “fair comment”. such a defendant, properly presented case the if he matter of his the privilege, plaintiff would be liable unless the demonstrates privilege in through turn that the was abused actual malice privilege or otherwise. But the defendant cannot establish this comment, distinguished unless the “fair comment” is indeed as Engineering from a statement of fact. Bell Pub. v. Garrett Co. Co., also in 110 197. See Annotation case, present A. L. R. 412. is That critical issue in the the clearly presented point very in the the of error which writ granted a being was the “same words false statement against argu- plaintiff” fact much oral also discussed on the petitioner jar ment. The statement Fitz raid was to have said pistol negro a “just fired a the him” a at feet of scare statement of fact a rather than comment therefore not comment”, as “fair under authorities mentioned. the holding I consider the Bell Pub. Co. case as that a statement merely publisher of facts does become “comment” of the coming publishes third-party because the latter it from point source. But whether the fact thus ground petitioner or not nothing as a officer has removal of actually
to do with whether the statement was state- question ment fact or comment or with further comment, any, whether if was “fair”. proposition opinion The other me that disturbs is the “* * * statement, broad cannot inferred from that malice used, language privileged, if other evi- character of the without prove place point dence to In made is it.” the first thus decision, there was unrelated to our has found since Secondly, may malice, finding questioned. it no is not such proposition form be doubted sound the broad the court’s cases, may not be “fair there stated. Aside from comment” conditionally privileged be- situations in which occasion is plain- yond ex-employer as an of an doubt —such answer enquiry plaintiff prospective tiff to an from em- about defamatory ployer the false and statement itself which —but legitimate purposes proportion unrelated to the is so out of malice- or amount an as to indicate communication term used in lieu privilege” often “abuse of broader —a one, and while court’s an intricate malice? The language supporting in some of the de- proposition does find good cited, no reason to commit ourselves there seems cisions require. does not so it when our actual decision February 22, Opinion 1950. delivered rehearing April overruled 1950. Motion for Departments Austin Fire and Police City of Austin. March
No. A-2472. Decided *13 Rehearing overruled April 26, (228 845.) W., Series,