While concurring in the reversal ordered for the errors pointed out in the trial court's charge, I am unwilling to be committed to the rest of this court's opinion, since it seems to me to be confusing and inaccurate in its statement of the law of libel as applicable to a case of this particular kind; that is, one in which the matters declared upon, in part at least, are found to be libelous per se because plainly aspersive of the character and motives of a public officer and candidate. After so classifying articles 2, 3, 4, and 5 — each and all — in which characterization I fully agree, the opinion declares that the question of whether or not 2 and 5 were privileged under article 5432 as being reasonable and fair comments and criticisms still remained as an issue of fact that should have been, under appropriate instruction, submitted to the jury for determination.
That is not my conception of the law in such an instance; in other words, I understand our Supreme Court in the recent case of Belo v. Looney, 112 Tex. 160, 246 S.W. 777, the decision in which it later expressly approved in Express Publishing Co. v. Lancaster (Tex.Com.App.)285 S.W. 810, neither of which are cited in appellant's brief or in this court's opinion, to hold that newspaper publications concerning a public official — whether of original or of quoted matter — which impute to him moral delinquency in private character, or corrupt motives in official conduct, are as a matter of law not privileged as "fair, true and impartial accounts of public meetings" or "reasonable and fair comments or criticisms of the official acts *Page 910 of public officials" within the meaning of R.S. art. 5432, subds. 3, 4, but are libelous per se as statements of fact, as such import malice, and to be excused must be proven to be true by the publisher.
The court, in the Looney Case, couched its holding in these, among other terms:
"We think the great weight of American authority is to the effect that false statements of fact concerning a public man, or the imputation to him of corrupt motives, is not privileged as fair comment. Possibly this doctrine was never better stated anywhere than by the Supreme Court of Maryland in the case of Negley v. Farrow, 60 Md. 158, 45 Am.Rep. 715, where the following expression is found:
"`There is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man and the imputation of corrupt motives by which that conduct may be supposed to be governed; and if one goes out of his way to asperse the character of a public man and to ascribe to him base and corrupt motives, he must do so at his peril, and must either prove the truth of what he says or answer in damages to the party injured. * * *'
"The foregoing proceedings, found in the legislative journals, are very persuasive that the Legislature declined to sanction a law authorizing attacks upon the motives of public officers. The same act preserved to defendants all defenses existing at common law, but, as we have already indicated, we believe the correct common-law doctrine did not sanction the unfounded imputation of moral delinquency with reference to the private character of public officials or the motives which actuate their public conduct. To make a statement that a public officer is actuated by evil or corrupt motives in a public undertaking is to make a statement of fact, and such statement of fact should be justified like any other statement of fact, in order to exonerate the person making the statement. * * *
"If, on the other hand, these resolutions impute bad motives to the appellee, they would not be privileged as comment, and if thus libelous, their publication would not be excused when that ground of defense is invoked. It would be wholly inconsistent to hold the press responsible as a wrongdoer for doing one thing when it acted as a commentator or critic, and protect it as performing a high duty to the public when it did substantially the same thing as a purveyor of news. Assuming that this meeting was called for public purposes, yet when it ascribed to appellee reprehensible purposes, and charged him with a willful design in bringing his suit to seek a place where he might work out an injustice, it departed from the field of protection afforded by the statute, and was no longer engaged in the furtherance of public purposes, and the benefit of the statute did not extend to the publication of such proceedings."
To the same general import is the holding of the Texarkana Court of Civil Appeals in C. Bruce Ferguson v. Houston Press Co., 1 S.W.2d 387, where this is said:
"In conclusion, we are of the opinion that the court erred in the ruling only so far as pertains to publications referred to herein as eighth and ninth articles. That publications respecting public officers are in a measure privileged is recognized by the weight of authority and the statute. There must be freedom of fair comment and criticism, made in good faith and without malice, upon facts that are true, of the integrity and misconduct of public officers as such. It is of public concern and in public interest. The privilege, however, of discussion in such cases does not extend to the making of false statements of fact, even though made in good faith and with reasonable cause to believe it true. The statement of fact published must be true in all respects."
Agreeably to the principle thus enunciated, since the circumstances of their publication were undisputed and all the above-enumerated articles did so carry these nonpermissible imputations, I think it was the province of the court to determine that they were not privileged in the circumstances (37 Corpus Juris, "Libel and Slander," p. 196. § 553), and to submit to the jury the question whether or not they were true as the only defense available against them.
The other articles 1, 6, 7, and 8 are likewise subject to the same principle, but under the particular facts appertaining to each of them, I am not prepared to hold that they are brought within it, or to differ from this court's classification of them.