A. H. Belo & Co. v. C. R. Smith, 91 Tex. 221

GAINES, Chief Justice. This suit was brought by defendant in error to recover of plaintiff in error, a corporation, damages for an alleged libelous publication which appeared in “The Dallas News” and “The Galveston News,” two newspapers published by the latter. The plaintiff in the trial court recovered there a judgment, which was affirmed in the Court of Civil Appeals. A writ of error has been granted, and the case has been submitted, together with a motion to dismiss the writ for want of jurisdiction.

We considered the question of jurisdiction before we granted the writ; but upon examining the argument filed in support of the motion we find more difficulty in determining the point than we then apprehended. The statute which defines the jurisdiction of the Court of Civil Appeals provides that the judgment of that court shall be final in “1.

Any civil case appealed from a county court or from a district court when under the Constitution a county court would have had original or appellate jurisdiction to try it, except in probate matters and in cases involving the revenue laws of the State or the validity of a statute. 2. All cases of boundary. 3. All cases of slander and divorce. 4. All cases of contested elections of - every character other than for State officers, except where the validity of the statute is attacked by the decision.” Rev. Stats., art. 996. The question is, does the word “slander” as used in the

article include within its meaning actions for libel? The authorities leave but little doubt that at an early day in the history of the common law the term was applied both to oral and written defamations of character. Starkie on Slander and Libel, 3, and authorities there quoted. But we think it equally clear that in modern usage it is applied to oral defamation only. This is the case in its technical use as well as in its common acceptation.

Looking to the reason of the provision, we are of opinion that the Legislature may have considered that there was good ground for allowing a writ of error in cases of written and for denying it in cases of oral defamation. Publications libelous per se were at common law punished as public wrongs; not so with slander. Under our statutes most libels are made penal offenses against the State, while only oral defamation which falsely imputes a want of chastity to a female is made a penal offense.

Libels not infrequently involve questions which affect the liberty of the press, and which therefore are of great public importance. Written defamation is in its nature lasting and may be read by many, while oral defamation is ordinarily heard by but few persons. It is obvious therefore that in the former the injury is likely to be more serious and the damages greater. For these reasons, we are of opinion that the Legislature in the

article quoted from used the word “slander” in its more restricted sense and conclude that we have jurisdiction of the case. Therefore the motion to dismiss is overruled. The publication upon which the suit was brought was as follows: “Arrested in Kansas City. “Kansas City, Mo., Aug. 22.—C. ft. Smith, of Gainesville, Texas, a stockman of considerable means, was arrested here last night on a warrant sworn out by the Armour Banking Co. of this city.

The banking company brought suit in the circuit court in April, 1894, against Smith to recover $14,051, which it is alleged was advanced to him several years ago, but as Smith had not been in the State since then, the papers could not be served.

He arrived in town yesterday with a load of stock, and was immediately arrested.” The petition averred in substance, it was meant that the plaintiff had been arrested in a criminal prosecution upon a charge either that he had obtained money under false pretenses or that having obtained it lawfully he had fraudulently misapplied it, and that either charge is a penal offense under the laws both of Texas and Missouri. We granted the writ because we were inclined to think that the language was not sufficient to support the innuendo.

It seemed to us, construing all the words together, that they should be construed as alleging merely that tH plaintiff has been arrested for debt. A further consideration satisfit us that in this conclusion we were mistaken. The question is, wha„ effect would the publication have upon the mind of the ordinary reader? What construction would he have put upon it? For in defamatory language, it is not so much the idea which the speaker or writer intends to convey, as what he does in fact convey.

It is the effect upon the character of the person alleged to be defamed by the utterance which the law considers, and therefore the utterer uses the language at his peril. There is no arrest for debt under our laws and probably none under the laws of Missouri.

The word “warrant” is a term of wide signification, and may be applied not inaptly to process in civil as- well as in criminal cases, but as a general rule its use is restricted to such writs as authorize the taking of the body of the defendant to answer a criminal charge; and we apprehend that such is the sense in which it would be understood by one not learned in the law—unless perchance there was something in the context to show the contrary.

The publication states, that the cause of the arrest was an advance of money by the Armour Banking Company to the defendant in error; and the whole writing is calculated to produce the impression that in the transaction there was some criminal conduct, such as alleged in the innuendoes in the petition, which authorized his arrest.

While it may admit of the construction that he had been arrested in a civil action for debt merely, we think that even if such arrest were permissible under the laws of Missouri, such a proceeding is so unusual that it is not probable that construction would be put upon it by the casual reader. The court, however, did not construe the publication, but treating its construction as doubtful left it to the jury to determine whether or not it was calculated to convey the idea that the defendant in error had been guilty of either of the offenses as charged in the innuendoes in the petition.

Of this action on the part of the court we think the plaintiff in error has no ground to complain. This disposes of the important question in the case. There are numerous assignments which raise other questions, but they are mainly points of practice, which we think were correctly determined by the Court of Civil Appeals. We deem it unnecessary to discuss them here. Finding no error in the proceedings of the trial court which requires a reversal of the judgment, the judgment of that court and that of the Court of Civil Appeals are affirmed. Affirmed.