Sinclair v. Dalien, 73 Tex. 73

Sinclair v. Dalien

73 Tex. 73 | Tex. | 1889

Collard, Judge.—

The opinion rendered at the present term in the-case of Julius Runge v. Joseph Franklin et al. holds that a bill inequity-filed in a court of competent jurisdiction or other judicial proceeding in the civil courts is absolutely privileged from libel suit. But there is another question involved in this case. Here the original petition declared on defamatory allegations in a bill in chancery, and exceptions being sustained because the mode of publication was privileged, plaintiff amended, declaring upon the same written allegations set up in the original petition published the same day, the 2d day of February, 1886, but does not. allege that the publication was by filing the bill. The allegation of puhr*75lication is simply that defendants “ did publish,” without stating how the publication was made, to whom, or that it was made to any one. The lower court decided that under the circumstances, and looking tó the mode of publication as set out in the original petition, it was necessary in the amendment to allege a publication other than by filing the bill in-court. The question is, was the court’s ruling correct? It has been said that it is sufficient merely to allege that the libel was published, without stating the manner of publication, though there is very little authority upon the subject, especially in America. Towns, on Slander and Libel, secs. 324, 93-5, 108; Burton v. Burton, 3 Greene (Iowa), 316; contra, Odgers on Slander and Libel, p. *472. It is usual to allege the manner-of publication, and it seems to us it would be more consonant with our rules of pleading to allege it so as to conform to the statute requiring a full and clear statement of the cause of action, and to inform the opposing party of what was expected to be proved. There are so many methods of publication of a libel, by reading it to persons, by posting, by scattering it in public places, by letters, by newspapers and pamphlets, etc., that good pleading under our system would require the plaintiff to inform the defendant by averment what kind of publication would be relied upon. A special demurrer to the amendment on this ground, would have reached the defect in the amended petition; a general demurrer would not. .

The court had correctly ruled that allegations in a bill in equity were-privileged, and after this plaintiff set up identically the same allegations,, alleging their publication on the same day as the filing of the bill, but merely alleged that the libelous matter was published by defendants or-that they did publish the same. The term “did publish" includes all-kinds of publication, as well that which the court had previously adjudged protected as others, and for that reason the court decided that the amendment ought to allege a publication other than that which had been excluded by the order of the court on the ground of privilege.

The original petition was entirely out of the case. The amendment stood as an independent pleading, and its sufficiency must be tested by its own allegations without reference to the original petition, which had correctly passed out of the case. Buies for District Courts, 12, 13, 14.

There being no special exception to the amended petition on the ground that it failed to set up the mode of publication, it must be held to be good as against the general demurrer.

The cause ought to be reversed and remanded for trial.

Reversed and remanded.

Adopted February 19, 1889.