While I concur in much that is said in the opinion written by Chief Justice WILLSON, I do not agree to the disposition made of the case nor to the grounds upon which the judgment of the trial court is reversed. It appears from the pleadings of both parties that there are two official acts of the Attorney General which formed the subject-matter of the publications complained of in this action. One of these is the filing of a suit on March 4, 1913, in Travis County, by the Attorney General, in the name of the State, against the Missouri, Kansas Texas Railway Company and some other railway companies named, seeking to enjoin their consolidation under the provisions of an act of the Thirty-Third Legislature (chapter 11). This suit was based upon the contention by the Attorney General that the act authorizing the consolidation was in conflict with the constitutional provision prohibiting the consolidation of parallel or competing lines of railroads. The other is a suit instituted by the Attorney General, in the name of the state, in the district court of Hunt county, against the Magnolia Petroleum Company, some other corporations and individuals, seeking to recover penalties for the violation of the anti-trust law and to forfeit the charters of the offending corporations.
I shall not undertake to set out in full all of the different publications, inasmuch as that has been done by the CHIEF JUSTICE, in his opinion. It was charged by the *Page 772 appellee in his original petition that each of these different publications was without probable cause, was published and circulated recklessly, wantonly, and maliciously, and with the intent to injure the appellee as a citizen, lawyer and public official and that he was so injured. It was also alleged that his peace of mind and feelings were disturbed, and that he was harassed and vexed and suffered much humiliation and shame on account of those publications. The articles were set out at length in the appellee's petition, and their publication was admitted by the appellant. No issue was made as to the occurrence of the official acts referred to in those articles. The appellant, however, denied that it was actuated by malice or any intent to injure the appellee; denied that it intended to charge the appellee with any improper motive in filing the suits referred to; and further denied that the publications complained of were fairly susceptible of the construction placed upon them by the appellee. It also pleaded that the matters were true in the sense they were intended to be understood; that is, that the Attorney General in bringing those suits acted unwisely, without proper advice, and in an unusual manner, and that the result of his actions was injurious to the welfare of the public generally, as well as to the corporations sued. It further alleged that the articles complained of were no more than fair and reasonable criticisms of the official acts of the Attorney General, and for that reason were, under the laws of Texas, privileged matter.
As to one of the articles reproducing what is called the "Corsicana resolution," it alleged that this was a fair, true, and impartial account of a public meeting, organized and conducted for public purposes only, and for that additional reason this publication was privileged. Upon the trial the court below took the view that each of the articles copied in the opinion of the CHIEF JUSTICE was upon its face libelous, and not privileged matter; but submitted to the jury only the issue as to the amount of general actual damages which the appellee had sustained.
While the record is large and the assignments are numerous, the determination of two questions will, it occurs to me, solve the controlling issues involved in this appeal. The first is, Were the publications libelous per se; that is, could the court from an inspection of them say, as a matter of law, that they tended to injure the name or reputation of the appellee, or to expose him to public hatred, contempt, or ridicule, or to impeach his honesty, integrity, or virtue and thereby expose him to public hatred or ridicule? If this question can be answered in the affirmative, then the second question arises: Was the court authorized to say, as a matter of law, without hearing any other evidence than those publications, that they did not come within the privileged class designated in the statute? If both of these questions can be answered in the affirmative, then the judgment should be affirmed. But if either of them should be answered in the negative, the Judgment should be reversed. I shall discuss these questions in the order stated above, and shall first examine the publications with a view of determining whether or not they were libelous upon their face.
It may be stated at the outset that the language of these different articles was sufficiently plain and unambiguous to dispense with any necessity for referring them to the jury for the purpose of ascertaining their meaning. Article 5595 of the Rev.Civ.Statutes provides:
"A libel is a defamation expressed in printing or writing * * * tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity or virtue or reputation of any one * * * and thereby expose such person to public hatred, ridicule or financial injury."
I have omitted from the above quotation those provisions of the statute which have no reference to the subject-matter under discussion. As stated in the opinion of Chief Justice WILLSON, this statute relating to libelous publications is more comprehensive in some respects than the common law upon that subject; hence it becomes practically our sole guide in determining the issues involved. There is among the members of this court no difference of opinion concerning the injurious character of the publications complained of, upon which the judgment of the court below is based. It is agreed that each of the six articles submitted as a basis of recovery did tend to produce one or more of the injurious consequences mentioned in the provision of the statute quoted, and that the trial court was authorized to so conclude as a matter of law. That the writer or writers of those articles intended by their publication to arouse public disapprobation of the course pursued by the Attorney General is too plain for argument. That the language used tended to arouse public censure and to produce an injury to his name and reputation as an officer and a man is equally plain. There was therefore no occasion for submitting that issue to the jury.
We come, then, to the second inquiry: Was the court authorized, as a matter of law, to hold that the publications were not privileged under the statute? If article 5595 stood alone there would be no difficulty in sustaining the action of the trial court in submitting to the jury only the question of the amount of damages recoverable. But our libel law contains two other articles. Under the provisions of article 5596 the truth of the statement or statements in injurious *Page 773 publications is made a defense. Article 5597 is as follows:
"The publication of the following matters by any newspaper or periodical, as defined in article 5595, shall be deemed privileged, and shall not be made the basis of any action for libel without proof of actual malice:
"1. A fair, true and impartial account of the proceedings in a court of justice, unless the court prohibits the publication of the same, when in the judgment of the court the ends of justice demand that the same should not be published, and the court so orders: or any other official proceedings authorized by law in the administration of the law.
"2. A fair, true and impartial account of all executive and legislative proceedings that are made a matter of record, including reports of legislative committees, and of any debate in the Legislature and in its committees.
"3. A fair, true and impartial account of public meetings, organized and conducted for public purposes only.
"4. A reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern published for general information."
In determining whether or not the plaintiff has made out a case, we must look to all of these statutory provisions. If in proving an injurious publication he offers in evidence one which upon its face appears to be privileged, he of course fails to establish a cause of action. If, for instance, he should rely for a recovery upon proof of a publication which clearly appeared to be only a criticism of the official acts of a public official, and it should further appear from the facts alleged or admitted by the plaintiff to be true that such criticism was fair and reasonable, there would be no ground for recovery. But suppose the plaintiff should rely upon a publication which appears upon its face to be no other than a comment or criticism of an official act of a public officer, does the burden rest upon him to allege and prove that it was inspired by malice or that it is unfair or unreasonable comment or criticism? Without expressing an opinion upon that question, I shall concede, for the purpose of this inquiry, that the burden in such an instance would rest upon the plaintiff to both allege and prove malice or that the offensive publication was unfair or unreasonable. I understand from the record before us that the court gave the instruction he did, not because the defendant had failed to prove privileged publications, but because the undisputed evidence and the admitted facts conclusively showed that those publications were not within the privileged class. Any question of the burden of proof, therefore, becomes wholly immaterial. The appellee's prefatory averments concerning his official position, the filing of the two suits before referred to, their character and purpose, were not contested by the appellant. The offensive articles were set out at length, and their publication admitted.
The defense was that all of them were comments on, and criticisms of, the official acts of the Attorney General as a public officer, that they were fair and reasonable, and that one of them was a fair, true, and impartial account of the proceedings of a public meeting. If by an inspection of these publications the court was authorized to say, as a matter of law, that they tended to produce any one or more of the injurious consequences mentioned in article 5595 previously quoted, and that they were not exclusively comments or criticisms of the official acts of a public officer, and that one of them, which purported to be the report of the proceedings of a public meeting, was not a fair, true, and impartial account of a public meeting, organized and conducted for public purposes only, it follows that the plaintiff had not only established a prima facie case, but had made one which called for the peremptory instructions that were given.
Having ascertained that the publications were upon their face injurious within the meaning of article 5595 of our statute, the trial court was confronted with this question: Were they fair and reasonable comments on, or criticism of, the official acts of the Attorney General? The privilege allowed by subdivision 4 of article 5597 is limited to language which properly falls within the usual and accepted meaning of the terms "comment" and "criticism." In the absence of this subdivision, any character of comment or criticism, whether with or without malice, and regardless of whether or not it is fair or reasonable, when directed against the official act of an officer, is made actionable if it tends to injure his reputation. The effect of this provision, following article 5595 as it does, was to carve out of the mass of injurious publications those which are enumerated as privileged. In view of the unambiguous language used, it then became the duty of the court to say whether or not the publications fell within the statutory privileged class.
To come within this particular privilege two conditions are required: First, the offensive matter must be comment or criticism; second, it must relate to the official acts of the public officer. The terms "comment" and "criticism" are thus defined in the Century Dictionary:
"Comment (the verb). To make remarks or observations, as on an action, an event, a proceeding or an opinion; especially to write critical or expository notes on the works of an author; to make remarks or notes upon, expound, discuss, annotate.
"Criticism. The act of judging of and defining the qualities or merits of a thing, especially of a literary or artistic work; the act of criticizing; discrimination or discussion of merit, character or quality; the exercise or *Page 774 application of critical judgment; in a restricted sense, inquiry into the origin, history, authenticity, character, etc., of literary documents; a critical judgment, especially a detailed critical examination or disquisition."
The words "comment" and "criticism" generally signify a discussion of assumed or conceded facts. The judgments and conclusions pronounced are supposed to follow as logical deductions from those assumed facts or conditions. While the critic, or commentator, must necessarily state the facts which are to form the subject-matter of his animadversions, he is, nevertheless, responsible for their truthfulness. If in stating his facts he includes those which are not true, he cannot escape liability for their injurious consequences by following the statement with a comment or criticism. The statute evidently did not intend to permit the publication of a false accusation under the guise of comment or criticism. In Galveston v. Johnson (Tex. Civ. App.) 141 S.W. 302, this provision of the statute was discussed, and the court used the following language:
"It will be noticed from a reading of the entire act that other statements, in order to entitle them to the character of privileged statements, are required to be `fair, true and impartial.' These other publications involve statements of facts that have occurred, and, when such statements of facts are made, and they come under the definition of libel in section 1 of the act referred to, they must be true to be privileged. This standard of truth, however, cannot be practically applied to a `comment or criticism,' which does not involve a statement of a fact at all, but only the opinion of the writer, and hence is only required to be fair and reasonable to be privileged."
I understand the Supreme Court has approved that case by refusing a writ of error.
For the purpose of testing the character of the publications complained of by the definitions above stated, I quote in full one of the editorials:
"A careful reading of the petition filed by Attorney General Looney in his suit against several oil companies has failed to disclose any allegation that the oil business is monopolized either by these defendant companies or any other companies. Their chief offense seems to be that they have a blood relation to one another, or a financial relation, with the Standard Oil Company as the grandfather of them all. Also they seem to be accused of having somehow parceled out the state among themselves; that is, to agree that one will not sell in a field occupied by another member of the family. If there is no monopoly of the oil business in this state, if, on the contrary, there is competition, whether among the members of this alleged Rockefellerian oil family, or among its members on the one side and oil companies of other breeding on the other — if, in short, there is competition and not monopoly in the oil-selling business of Texas, we can see no occasion whatever for the Texas anti-trust law to become excited, much less indignant."
What the author has written thus far may pass for criticism of an official act; or if not, it may be treated as harmless upon its face. But he continues:
"Maybe, if one could go deep enough, one would see that the grievance is, not that there is no competition, but that there is too much, wherefore the desirability of having the antitrust law drive some oil companies out of the state that the others may not be forced to lead so strenuous a life. There are nine ways to skin a cat and at least two uses to be made of an anti-trust law."
This last paragraph evidently meant to convey the idea that if the Attorney General's purpose in instituting that suit could be revealed it would probably disclose a design to prevent competition among oil companies; thus charging that he was making an improper use of the antitrust laws. Here the motive of the officer is distinctly referred to, and an improper one is imputed. That portion of the article is the statement of a fact which may be true or untrue. If true, it was susceptible of proof by evidence, like any other fact. If untrue, it was not a fair or reasonable comment or criticism; in fact, it was not a criticism at all, but an accusation calculated to produce some of the injurious consequences which the statute makes actionable. If such an accusation, unaccompanied by criticism, had been made, the statutory defense would lie in proving its truth. That duty is no less imperative when the accusation is coupled with a criticism. The statutory protection accorded to criticism and comment cannot be employed as a subterfuge to cover that which is not criticism or comment. To hold differently would permit an unwholesome and destructive use of the liberty of criticism and comment. In its pleadings the appellant does not undertake to defend this imputation of improper motive by proof of its truth, but, on the contrary, disclaims having made any such imputation. It appears to be tacitly admitted that under the facts of this case an attack upon the Attorney General's motives charging such as would tend to dishonor him as a man or reflect upon his fidelity as an officer, cannot be defended solely upon the ground that the language is criticism or comment on an official act. If that proposition be correct the court below at that juncture had before it only this issue of fact: Did the publications upon their face attribute to the appellee an improper or dishonorable motive? If they did, then there is no defense pleaded, and the court pursued the only course then open to him.
But, even if we should treat this offensive language as criticism or comment, it is a criticism of the man, not of the act alone. The act was official, but the motive was personal. The practical and legal consequences of the official act were unaffected by the good *Page 775 or bad motive of the officer. However difficult it may be at times to separate the act from the actor, so as to permit a criticism of the one without injuring the other, the statute has made the separation necessary for one who would claim the privilege granted.
The damaging odium which a critic or commentator may cast upon an officer is that which results logically and inferentially from an exposition of the official conduct assailed. I shall refer to only a few of the many authorities which sustain this proposition. Mr. Newell in his work on Slander, p. 567, says:
"Criticism differs from defamation in the following particulars: (2) It never attacks the individual, but only his work. Such work may be either the policy of the government, the action of a member of a legislative body, a public entertainment, a book published, or a picture exhibited. In every case the attack is on a man's acts, or on something, and not upon the man himself. A true critic never indulges in personalities, but confines himself to the merits of the subject-matter. (3) It never imputes or insinuates dishonorable motives unless justice absolutely requires it, and then only on the clearest proofs. (4) The critic never takes advantage of the occasion to gratify private malice or to attain any other object beyond the fair discussion of matters of public interest and the judicious guidance of the public taste. He carefully examines the matter, and then honestly and fearlessly states his true opinion."
Again, he says:
"Criticism and comment of well-known or admitted facts are very different things from the assertion of unsubstantiated facts. A fair and bona fide comment on a matter of public interest is an excuse for what would otherwise be a defamatory publication. The statement of this rule assumes the matters of fact commented upon to be somehow ascertained. It does not mean that a man may invent facts and comment on the facts so invented, in what would be a fair and bona fide manner, on the supposition that the facts were true. If the facts, as a comment upon which the publication is sought to be excused, do not exist, the foundation fails. There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticize, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. To state matters which are libelous is not comment or criticism."
The same author, quoting from Neeb v. Hope, 111 Pa. 145, 2 A. 568, says:
"In criticizing the conduct of a public officer, the publishers of a newspaper render themselves liable for as action for false and groundless imputations of wicked motives or of crime."
In Wofford v. Meeks, 129 Ala. 349, 30 So. 625, 55 L.R.A. 214, 87 Am. St. Rep. 66, the court used the following language in discussing the privilege of the press in criticizing an official act:
"If an editor goes out of his way to asperse the character of a public man or set of men, and to ascribe to him or them base or corrupt motives, he does so at his peril, and must prove the truth of his charges, or answer in damages to the party or parties charged."
In Levert v. Daily States Publishing Co., 123 La. 594, 49 So. 206, 23 L.R.A. (N. S.) 726, 131 Am. St. Rep. 356, the court said:
"The privilege of fair and reasonable criticism of public men does not embrace the right to publish a false statement of fact, or to falsely impute to them malfeasance or misconduct in office."
In McAllister v. Detroit Free Press Co., 76 Mich. 338. 43 N.W. 431, 15 Am. St. Rep. 349, this language is used:
"The acts of officers may be criticized. They may even be exposed to ridicule and sarcasm without subjecting the publisher to liability for libel. It is otherwise with respect to the private characters and motives of officers. Aspersions upon them are at the peril of the publisher. He may escape this peril by showing that they were true."
In Curtis v. Mussey, 6 Gray, 373, the court said:
"There were passages in the publication, which appeared on their face to be libelous, such as the charge * * * of prejudice and want of feeling. The assertion that the decision of the commissioner was a partisan and ignoble act; the statements complained of were not privileged communications, and, as discussions upon a matter of public interest, did not appear to be justified, because they charged the plaintiff with corrupt and improper motives, and because the answer did not aver their truth."
If at common law the gratuitous imputation of a dishonorable motive to a public officer was not legitimate criticism of or comment on his official acts, I am unable to see why it should not now be equally unlawful. There is nothing in the statute itself, or the conditions under which it was adopted, to indicate that the Legislature intended to give the words "comment" and "criticism" a more extended signification or that it intended to make the privilege more comprehensive than it was at common law.
It follows from what has been said that the court below correctly held that the article discussed was not a privileged publication. What is said of that editorial may with equal propriety be said of all the other publications except the Corsicana resolution. It is apparent that each of the former, to a greater or less extent, attacked the motive and design of the Attorney General in instituting the suits referred to. *Page 776
As to the Corsicana resolution, it cannot fairly be said that this was not a comment or criticism. If, therefore, it is not privileged, it is because it was not reasonable and fair. The terms "reasonable" and "fair" are probably as easily understood as any in our language. If in the course of his criticism a writer announces a conclusion which the facts discussed clearly do not justify, and which tends to injure the party whose conduct is being criticized, the writing is both unfair and unreasonable. The act of the Attorney General, which this resolution assailed, is the filing of the suit against the Magnolia Petroleum Company and others in Hunt county, and having a receiver appointed without a hearing. It is conceded that such a suit for such a purpose might legally have been filed in Hunt county. There is no contention that the judge who presided over the district court in that county was not as capable and as impartial as any who presided over the courts in Travis county, the place where such suits are usually filed. Neither is there any contention that in Hunt county there existed any prejudice or ill feeling against any of the defendants in that suit, so that they could not get a fair trial in that county. Conceding, then, that a receiver was appointed to take charge of the property of the defendants without any previous notice having been given, and that a personal friend of the Attorney General was selected for the place; this does not imply that an injustice had been done by the Attorney General. The appointment of a receiver is a matter placed by law in the hands of the presiding judge; and whether the appointment shall be made without notice is a matter that rests within his discretion. There was no attempt to show that the selection of the appointee was at the instance of the Attorney General, or that the appointee was an unfit person; in short, there was no offer to prove that the defendants in that suit were, by reason of its being filed in Hunt county, deprived of any advantage or defense they might have utilized had the suit been filed in Travis county. The fact that this was an unusual place to bring such suits, or possibly that the Attorney General once resided in Hunt county, are the only circumstances tending to show that an effort was being made to deal unfairly with the defendants in selecting the venue of that suit. Yet with only these circumstances and conditions, the meeting held at Corsicana adopted a resolution which according to the headlines used in its publications, condemned the Attorney General. In the body of the resolution, referring to his conduct, it says, among other things:
"It has (referring to the institution of that suit) the appearance of lynch law, or of a mock trial where the only effort is to procure a place where injustice may be worked out. It is not usual for an officer who is seeking to enforce the law to select an unusual and arbitrary place as a background for his act."
In another place this language is used:
"We can see no reason why the companies or their stockholders and officers should be subjected to such unjust, unusual, and arbitrary treatment that puts them to great cost, deprives them of the control of their property, and humiliates them before their fellow citizens by a prejudgment."
And again:
"We are unalterably opposed to such unjust and reprehensible legal proceedings," etc.
It is evident that the offensive language used in this resolution was dictated largely by a spirit of resentment aroused to the point of indignation. It is violent and intemperate and not such reasonable or fair comment or criticism as the statute contemplates shall be privileged.
It is further contended that this article is privileged because it is a fair, true, and impartial account of a public meeting, organized and conducted for public purposes only. It may be conceded that this resolution as published is a fair, true, and impartial account of that portion of the proceedings of the meeting from which it emanated. It may further be conceded that the meeting was public, in the sense that it was open to every member of the commercial organization and to every other person who cared to attend. But this is not all that is required to make such matter privileged. It must be shown also that the meeting was one organized and conducted for public purposes only. I understand that the statute contemplates as a public purpose that which has for its object the furtherance or promotion of the public welfare, the advancement of some public enterprise or undertaking which results in a benefit to the community at large, or which would suppress, prevent, or discourage some evil from which the public generally might suffer. To be for a public purpose the object sought must be for the benefit or the good of the community as contradistinguished from that of private individuals. The resolution bears upon its face evidence that it was an attempt on the part of a public gathering to discourage litigation in the name of the state against private corporations and some private individuals. The public had no more interest in that litigation than in any which had for its object the enforcement of the anti-trust law. The evil consequences resulting from the improper institution of that suit and the unwarranted appointment of a receiver were limited to the defendants in that suit, and not shared by the public at large. It is clear, there fore, that the object which the resolution undertook to accomplish was to remedy a private wrong. That being true, the resolution *Page 777 itself furnishes conclusive evidence that the meeting, although it may have been public, did not confine its activities to those things in which the public alone was interested.
The appellant urges as a defense that, having denied the truth of the innuendos of the appellee, and having pleaded the truth of its publications in the sense it intended they should be read and understood, it was entitled to offer proof in support of its pleadings and in contradiction of the averments of the appellee. In a proper case doubtless the defendant in a libel suit should be permitted, while admitting the publication, to deny and disprove the truth of the innuendos employed by the plaintiff in stating his case; but that defense is not available when the publication is so plain that it requires no innuendos to interpret its true meaning, and where the defense rests upon attributing a meaning clearly at variance with that which appears upon the face of the publication itself. The test in determining whether or not a publication is libelous or not is the meaning which an ordinary reader would give to the language employed. Belo v. Smith, 91 Tex. 225,42 S.W. 850. If the language is unambiguous and sufficiently full to disclose all that need be known to understand the writer's meaning, the defendant cannot rely upon proof of a different meaning.
I find no reversible error in the rulings complained of, and think the judgment of the trial court should be affirmed.