Opinion
No. 3490.
March 25, 1937. Rehearing Denied April 15, 1937.
Appeal from District Court, Harris County; Ewing Boyd, Judge.
Action by W. R. Morin, individually, and as a member of the firm of Morin Maes, a partnership composed of W. R. Morin and Thomas M. Maes, against the Houston Press Company and another, wherein the first amended petition named as plaintiffs W. R. Morin, individually, and Morin Maes, a partnership composed of W. R. Morin and Thomas M. Maes, and the second amended petition named as plaintiffs W. R. Morin and Thomas M. Maes, individually, and Morin Maes, a partnership composed of W. R. Morin and Thomas M. Maes. From a judgment for defendants, plaintiffs appeal.
Affirmed.
This is a suit by appellants against the Houston Press Company, publisher of the Houston Press, a daily newspaper of Houston and its editor, Marcellus E. Foster, to recover damages for alleged libelous matter appearing in the Houston Press in the year 1934.
The suit was filed October 5, 1934, by "W. R. Morin, individually, and as a member of the firm of Morin Maes, a partnership composed of W. R. Morin and Thomas M. Maes." The plaintiff alleged he sued "in his individual capacity and on behalf of the partnership of Morin Maes."
First amended petition was filed December 14, 1934, naming "W. R. Morin, individually, and Morin Maes, a partnership composed of W. R. Morin and Thomas M. Maes," as plaintiffs.
The second amended petition, upon which the case was tried, was filed April 30, 1935, and named "W. R. Morin and Thos. M. Maes, individually, and Morin Maes, a partnership composed of W. R. Morin and Thos. M. Maes," as plaintiffs.
The firm of Morin Maes is engaged in the general printing business in Houston. Morin, individually, owned the Houston Publication Company, publisher of the Public Safety Messenger. The firm of Morin Maes also published the Daily Court Review. Morin was a member of, and chairman of, the Civil Service Commission of the city of Houston since October, 1933, until subsequent to the trial. The police department of Houston has an organization known as the Policemen's Burial Fund Association, to which only policemen may belong, and to which they pay dues. The purpose of the association is to pay the burial expenses of its deceased members who, while in good standing, may die. If, after the payment of such expenses, any of the fund is left, it is paid to the beneficiaries of the deceased; the payment being limited to $1,000. Since 1921, with few exceptions, a policemen's ball has been given annually in Houston for the purpose of raising money for the burial fund. The public are solicited to buy tickets; some members of the public would buy a quantity of tickets and make donations as well. The sale of these tickets had been handled on a co-operative basis. The newspapers of the city giving the ball publicity and commending same to the public as a worthy cause; the policemen themselves selling the tickets. Prior to 1934 no one had ever been paid a commission for selling tickets. Among the duties of the Civil Service Commission is that of hearing appeals of discharged city employees; it has jurisdiction over the policemen. Morin, then chairman of the commission, on January 17, 1934, entered into a contract with the said association to sell tickets for the 1934 ball; he signed same as business manager for the Public Safety Messenger. He was to receive 25 percent of the gross sales made by his organization and 10 per cent. of the gross sales made by members of the police department. Certain expenses were to be deducted from the proceeds after the commission had been first deducted. All other expenses were to be borne by the association.
Maes was a candidate for justice of the peace in the Democratic primary held in July, 1934. He was in the run-off primary held August 25th, and was nominated, and later elected at the general election.
In the second amended petition complaint is made of the following matter:
The heading of a news item in the issue of January 30th, which reads:
"Morin gets `cut' of cops' ball tickets,"
"Civil Service member allowed precentage from Police dance sales," and of the last paragraph of the article reading:
"Secretary, A. A. Fowler, of the Policemen's Burial Association said the printing firm of Morin Maes, of which W. R. Morin is a member, will handle all details for the Ball this year including sale of the tickets for 25% of the income."
The headline of a news item in the issue of March 19th, reading: "Policemen's Ball Loses Cash and Prestige Due to 25% `Rake-off.'"
And the following matter in the article:
"The Police Burial Fund was several thousand dollars to the good Monday, but it lost much in public esteem due to the `rake-off' —
"Soon the new Board decided to have a Ball, the Policemen's Fund needed the money. By some arrangement it was decided to let Morin Maes, Printers of the Public Safety Messenger, with Cope Wiseman as Editor, have a certain precentage of the sale of tickets."
At the bottom — "Turn to Rake-off Cuts, page 2"
And the heading on page 2 — "Rake-off Cuts Dance Receipts"
The heading of an editorial in the issue of April 4, reading: "Who Got it?"
In a news item of August 9th, reading: "Who is this man Maes? He is the partner of W. R. Morin. Who is W. R. Morin? He is the man who has been sitting on the Civil Service Commission of the City deciding the right of a trial of poor devils who have been fired from the City by Mayor Holcombe. You people out here known some of them."
In a news item of August 15th, reading: "His partner, W. R. Morin, is taking care of the hook-up between the Court House and the City Hall. Morin is the Chairman of the Civil Service Commission. He has it in his power to deny a trial for men who have been fired out of the City Hall. I do not know whether the City employees who were fired should have been fired or not, but I do know they are entitled to a Civil Service hearing."
The heading of a news item in the issue of August 16th, reading: "What Became of the Policemen's Money?"
And of the following in said news item: "Tell us what happened to the Policemen's money, another man on the outskirts asked Hansen."
Matter in a news item in the issue of August 17th, reading: "He is a member of the Court House ring and he is a partner of the firm of Morin Maes which got commissions of more than $3,000.00 from the receipts of the last Policemen's Ball."
Matter in a news item in the issue of August 21st, reading: "What about the blood money Tom Maes and his partner got from the Policemen last March? They pocketed about $3,000.00 of the receipts from the Ball."
At the conclusion of the evidence an instructed verdict was returned against Maes, individually, as to the damages claimed on account of all of the articles, and against all of the plaintiffs as to the damages claimed on account of the articles appearing in the issues of the month of August. The case was then submitted upon special issues as to the remaining articles of January 30th, March 19th, and April 4th, and the plaintiff Morin and the partnership of Morin Maes. The findings in respect to such issues may be summarized as follows:
1. The article of January 30th is not libelous.
2. Conditionally submitted and not answered.
3. The subject-matter of said article was a matter of public concern.
4. It was published for general information.
5. The comments or criticism of the subject-matter contained in said article were all reasonable and fair so far as they affected Morin.
6. The publication of said article was not actuated by malice as to Morin.
7. Morin was not damaged by the publication of said article.
8-a. The facts stated in said article were not all substantially true with respect to the firm of Morin Maes.
8-b. The comments or criticisms of the subject-matter contained in said article were all reasonable and fair so far as they affected Morin Maes as a firm.
8-c. This issue inquired what sum the jury would allow Morin as exemplary damages. It was not answered because of its conditional submission.
9. The firm of Morin Maes were not actually damaged by the publication of said article.
10. The publication of said article as to the firm of Morin Maes was not actuated by actual malice.
11. Relates to exemplary damages as to the firm of Morin Maes and was not answered because of its conditional submission.
With respect to the article of March 19th, the jury was instructed it was libelous per se.
12. All of the material facts stated in said article were substantially true.
13. The subject-matter of said article was a matter of public concern.
14. The article was published for general information.
15. The comments or criticisms of the subject-matter contained in said article were not all reasonable and fair so far as they affected Morin.
16. The publication of said article was not actuated by actual malice.
17. Morin was not actually damaged on account of said article.
18. Allowed Morin no exemplary damages on account thereof.
18-a. The facts stated in the publication with respect to the firm of Morin Maes were not all substantially true.
18-b. The comments or criticisms of the subject-matter contained in said article were all reasonable and fair so far as they affected the firm of Morin Maes.
19. Morin Maes were not actually damaged by the publication of said article.
20. The publication of said article was not actuated as to the firm of Morin Maes by actual malice.
21. Allows the firm nothing as exemplary damages.
With respect to the article of April 4th, the jury was instructed it was libelous per se.
22. The material facts stated in such publication with respect to Morin were all substantially true.
23. The subject-matter of said article was a matter of public concern.
24. Said article was published for general information.
25. The comments or criticisms of the subject-matter contained in said article were all reasonable and fair as far as they affected Morin.
26. The publication of said article was not actuated by actual malice as to Morin.
27. Morin was not actually damaged by the publication of said article.
28. Awards Morin no exemplary damages therefor.
28-a. The facts stated in said publication with respect to the firm of Morin Maes were not all substantially true.
28-b. The comments or criticisms of the subject-matter contained in said article were all reasonable and fair so far as they affected the firm of Morin Maes.
29. Morin Maes were not actually damaged by the publication of said article.
30. The publication of said article was not actuated as to the firm of Morin Maes by actual malice.
31. Relates to award of exemplary damages to Morin Maes, and was not answered because of its conditional submission.
Judgment was rendered for the defendants, from which the plaintiffs appeal.
Elbert Roberts, of Houston, for appellants.
Fulbright, Crooker Freeman, W. B. Bates, and Paul Strong, all of Houston, for appellees.
The court correctly held that any right of action by Maes individually, arising out of the publications in January, March, and April, 1934, were barred by the one-year statute of limitations. Article 5524, R.S.
The partnership right of action declared upon in the original and first amended petitions was separated from the individual right of action of Maes. Slaughter v. American B. P. Society (Tex.Civ.App.) 150 S.W. 224; Wright v. AfroAmerican Co., 152 Md. 587, 137 A. 273, 52 A.L.R. 908, and note.
Maes, in his individual capacity, did not become a party to the litigation until the second amended petition was filed April 30, 1935. Not until then was any suit commenced by him individually, and as to the publications mentioned, his right of action was then barred. Morales v. Fisk, 66 Tex. 189, 18 S.W. 495; Telfener v. Dillard, 70 Tex. 139, 7 S.W. 847; Baker v. Gulf, C. S. F. Ry. Co. (Tex.Civ.App.) 184 S.W. 257.
Nor did the court err in refusing to submit any issue regarding the publications in the month of August.
Mr. Maes was a candidate for justice of the peace, in Harris county, at the first primary held in July, 1934. Mr. Maes and Judge Overstreet got into the runoff. The second primary was held August 25. The run-off campaign took place between these two primaries. The testimony of the plaintiffs W. R. Morin and Thomas M. Maes shows there were many political gatherings in the interval between the two primaries, at which gatherings the candidates themselves or speakers in their behalf spoke, and to which gatherings the public generally was invited, and were present; that the five articles in August were reports of what was said and done at some of these political meetings; that the parts of these articles declared on were quotations from speakers who spoke at these rallies in behalf of the candidates; that they (plaintiffs) do not deny that the actual happenings were correctly reported or that the speakers were correctly quoted.
There is no testimony that the articles were not fair, true, and impartial accounts of public meetings. These meetings were dealing with public purposes. Nor is there any testimony that such articles were not fair, true, and impartial accounts of statements made and discussion in such meetings.
Under the third subdivision of article 5432, R.S., as amended in 1927 (Acts 40th Leg. p. 121, ch. 80, § 2 [Vernon's Ann.Civ.St. art. 5432, subd. 3]) the publications were absolutely privileged, and the trial court properly so held. Houston Press Co. v. Smith (Tex.Civ.App.) 3 S.W.2d 900.
The failure of the jury to award at least nominal damages to the plaintiffs Morin and the partnership of Morin Maes upon the findings made is not reversible error. In cases of this nature a judgment will not be reversed and a new trial awarded merely because the jury failed to award nominal damages which should have been awarded. 37 C.J. p. 112, § 559; Von Schoech v. Herald News Co. (Tex.Civ.App.) 237 S.W. 651; Cresson v. Wortham-Carter Pub. Co. (Tex.Civ.App.) 248 S.W. 1077; Major v. Hefley-Coleman Co. (Tex.Civ.App.) 164 S.W. 445; Mitchell v. Heard (Tex.Civ.App.) 98 S.W.2d 832.
There is no conflict in the findings made by the jury, nor any reversible error shown by the numerous other assignments and propositions submitted in appellants' brief raising questions other than those above noted. It is unnecessary to separately discuss the same, and to do so would unduly lengthen this opinion.
The judgment is affirmed.