181 S.W. 554 | Tex. App. | 1915
This is a libel suit, at the trial of which the plaintiff obtained a verdict and judgment against the defendant for $1,000, and the latter has appealed.
We sustain the eighteenth assignment of error, which complains of the action of the trial court in permitting the plaintiff, over the defendant's objection, to read in evidence to the jury a portion of a former answer filed by the defendant, wherein it was alleged that the statements in the publication alleged to state a libel were in fact true. The publication which constituted the libel was as follows:
"Confesses to Killing 25 Years Afterwards.
"At the time of the killing a grand jury considered the case but failed to indict Armstrong and since then no grand jury has given the matter attention. Armstrong said he was getting old and wished to clear his mind of the affair."
An answer which had been abandoned and was superseded by the amended answer upon which the case was tried contained these averments:
"This defendant alleges that it is true that plaintiff Theodore Armstrong did participate or take part in the killing of former sheriff John Olive; that he did subsequent to said killing and prior to the publication of said article by defendant, confess that he had taken part in said killing * * * and in this connection avers that, in substance, the article published by defendant was true."
Over appellant's objection, the trial court permitted appellee to read to the jury as evidence the two extracts above quoted from the defendant's former answer.
The plaintiff filed no plea alleging that the filing of the answer containing those averments constituted libel, and therefore, if for no other reason, was not entitled to introduce them in evidence as constituting any part of his cause of action; and, as he sued for actual damages only and did not sue to recover punitory damages, such written statements signed by the defendant were not admissible in evidence for any purpose. Express Printing Co. v. Copeland,
We also sustain the twenty-fifth assignment of error complaining of that paragraph of the court's charge which instructed the *556 jury that they might consider the fact that appellant had filed a plea alleging the truth of the libelous matter in assessing damages. As the plaintiff did not seek to recover punitory damages, the measure of damages was limited to reasonable and fair compensation for the actual injury which resulted, not from filing the plea referred to, but from the publication of the libelous article upon which the plaintiff based his cause of action; and, therefore, the error committed by the court in permitting appellee to introduce in evidence the pleading referred to was aggravated and rendered more harmful by the court's instructing the jury that they might consider the fact that the plea mentioned was filed and withdrawn in determining the amount of damages appellee was entitled to.
We think the trial court ruled correctly in holding that the publication constituted a libel per se, the plaintiff having alleged and proved that it was a well-known fact in Bell and other counties that Sheriff Olive was assassinated in the nighttime by one or more unknown persons. While it is true that the killing referred to occurred more than 20 years prior to the publication, it is also true that many persons are still living who are aware of the fact that it was generally understood that whoever assassinated Olive committed the offense of murder; and every person who read the publication complained of would necessarily understand it to mean that plaintiff Armstrong had confessed that he participated in the murder of Olive, and was guilty of that offense. In fact, we are strongly inclined to the view that any one reading the publication would construe it as charging that appellee had confessed to the commission of a crime.
All the other questions presented in appellant's brief have been considered and are decided against it. For the error pointed out, and for the reasons stated, the judgment is reversed, and the cause remanded.
Reversed and remanded.