Dr. C. C. Chandler brought this action 'for libel against Caller Times Publishing ■Company, a corporation, and W. G. Kin-solving, its editor and publisher, for actual and exemplary damages alleged to have ■been sustained by him on account of the publication of a series of news items in the Corpus Christi (morning) Caller and •Corpus Christi (evening) Times, both owned by the corporation. Upon a peremptory instruction that portions of the •publications were libelous per se, without regard to the truth thereof, and entitled Dr. Chandler to damage in “some” amount, the jury found for him in the sum of -$10,000 actual damages. The claim for exemplary damages was abandoned by the .plaintiff in the course of the trial. Judgment was rendered in accordance, with the verdict, and the defendants below have .appealed. They will be referred to as defendants and Dr. Chandler as plaintiff, as in the trial court.
The record' and briefs are quite voluminous, and can be given only the most general notice in this opinion, notwithstanding a careful study of them has consumed much time in this Court.
It appears that plaintiff was indicted by a grand jury in Nueces County, in one case upon a charge of conspiracy to burglarize the vault of the defunct City National Bank of Corpus Christi, and in the other case upon a charge of arson. Both indictments appear to have been founded upon statements, or, rather, confessions of others indicted jointly with plaintiff, and made before an assistant District Attorney. The newspapers (one a morning and the other an afternoon publication, both owned by defendant corporation) published not only the facts of the return of the indictments and the charges therein, but the facts and substances of the confessions of the alleged co-conspirators. Plaintiff’s claims of libel rest upon the reports of those confessions, and not upon the reports of the indictments.
The court peremptorily charged the jury that the reports of the confessions were libelous as a matter of law, and directed them to find for plaintiff such amount of damages as they should find he was entitled to under the evidence and the charge on the measure. The charge amounted to an instruction that there was no evidence of the truth of the statements of fact embraced in the publications, or, at least, that the evidence thereof was insufficient to raise issues of fact.
The peremptory instruction raises the incidental question of law of whether the confession of an alleged conspirator, or accomplice, of one indicted for crime, is such a matter of privilege as a newspaper may publish it without liability therefor, as for libel, under the provisions of §§ 1 and 4, Art. 5432, R.S.1925, as amended by the Acts of 1927 (40th Leg. p. 121, ch. 80, § 2 [Vernon’s Ann.Civ.St. 'art. 5432, subds. 1, 4]), as follows:
“Art. 5432. Privileged matters.
“The publication of the following matters by any newspaper or periodical shall be deemed privileged and shall not be made the basis of any action for libel.
“1. A fair, true and impartial account of the proceedings in a court of justice
* * * or any other official proceedings
authorized by law in the administration of the law. * * *
“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. * * ⅝ »
It appears from the record that persons charged jointly with plaintiff in the indictments in question, and prior to the return of those indictments, made written confessions under oath to an assistant district attorney, in which they implicated plaintiff in the commission of the alleged crimes. The substance of these confessions was incorporated in the publications complained of by plaintiff as libelous, and constitute the gravamen of the alleged libel. Defendants contend that those confessions were privileged, by virtue of the quoted statute, and that defendants are therefore excused from liability for the publication thereof. We overrule this contention. We are of the opinion that those purely ex parte statements, not made in the course, or under the sanctity, of a judicial proceeding, were not privileged within the contemplation of the statute. 27 Tex.Jur. p. 660, § 41; Belo & Co. v. Wren, 63 Tex. 686
*252We are of the further opinion, however, that the evidence adduced upon the trial, however fanciful and unreasonable it may appear to counsel, nevertheless efficiently raised the issue of the truth of the statements complained of as libelous, and the truth is always a complete defense to an action for libel of whatever degree. It is expressly made so by statute. Art. 5431, R.S.1925, as amended by Acts 1927 (40th Leg. p. 121, Ch. 80, § 1 [Vernon’s Ann.Civ.St. art. 5431]); 36 Cyc. p. 1231, § 103; 27 Tex.Jur. p. 634, § 29; Cotulla v. Kerr, 74 Tex. 89, 11 S.W. 1058, 15 Am.St.Rep. 819; Moore v. Davis, Tex.Com.App., 27 S.W.2d 153; Id., Tex.Com.App., 32 S.W.2d 181. And it is sufficient if the publication be substantially true, particularly in cases of newspaper articles. 27 Tex.Jur. p. 635, § 30.
As we have been unable to avoid the conclusion that the evidence raised the issue of the truth of the statements complained of, we deem it not only unnecessary, but improper, in view of another trial presumably upon substantially the same evidence, to discuss the evidence in any detail, except certain claimed inaccuracies which plaintiff asserts, and the trial judge so declared, were libelous as a matter of law, and unsupported by any testimony.
For example, in the published stories plaintiff was referred to as a “former choir singer,” whereas, he claims this reference was libelous in that • it carried the inuendo that having been a choir singer in the past he had by some reprehensible conduct lost or been compelled to relinquish that -status, and the court charged the jury that the statement was libelous as a matter of law. It is conceded that plaintiff had been a choir singer, and apparently continued in that avocation up to the time of the publications in question. We doubt if the publication justified the implications and inuendos plaintiff attributes to it, but, certainly, it did no more than raise an issue of fact, to be determined by the jury, as to the effect of the statement upon the ordinary person reading it in the newspapers, which is the true test. Express Pub. Co. v. Southwell, Tex.Civ.App., 295 S.W. 180, writ refused; First State Bank v. Parker, Tex.Civ.App., 28 S.W.2d 269.
It was stated in the newspapers that plaintiff was arrested on an indictment “charging him with conspiracy to rob the City National Bank shortly after the bank was •closed.” Plaintiff contends and the court charged the jury, in effect, that this allegation was libelous and was not substantially true. The facts are, it seems, that in the indictment, returned in November, 1933, plaintiff was charged with conspiracy to burglarize a building controlled by one Malcom Meek, who was shown to be receiver of the defunct City National Bank, which had failed on November 1, 1931. The bank vault was the one actually involved. These discrepancies of fact are not such as to support a peremptory instruction that they were libelous as a matter of law. Moreover, the statements were substantially true, in fact.
Plaintiff further complains of the statement that he was charged in the newspapers with having been indicted for the offense of conspiracy to “rob” the bank, whereas, in truth, the indictment was for conspiracy to “burglarize.” The offenses are of equal grade, and no injury is shown by the published inaccuracy. Times Pub. Co. v. Ray, Tex.Civ.App., 1 S.W.2d 471; Ray v. Times Pub. Co., Tex.Com. App., 12 S.W.2d 165.
In the same category was the published reference to plaintiff as a “fáir concessionaire.” The record seems. to show, even by his own testimony, that plaintiff exhibited a strange freak of an apparently unknown species of animal, at one or more fairs in the midwest, under some sort of temporary permission or concession from those in authority. At most, it would be for the jury to determine, from all the facts and circumstances in evidence, if plaintiff was in fact a “fair concessionaire,” and, if not, whether the false reference was libelous, and materially injured plaintiff.
In that connection, it was stated in the published stories, as brought forward in plaintiff’s brief, that “Chandler returned here from the north recently after having been exonerated in the fatal shooting of Calvin Howard, 27, of Rio Frio, in a concession tent at the county fair in Connersville, Ind. Officers said they found he had been cleaning his gun when it was discharged accidently.” Plaintiff complains of the italicized passages. His own testimony shows that when the animal freak was on exhibition in a tent at -a •fair in the Indiana town, a drunken customer, in a playful mood, tried to get possession of a sawed-off shot gun con*253cealed under the animal cage, when plaintiff interfered, and, , in a scuffle between them, the gun, in plaintiff’s possession, was accidentally discharged, killing young Howard, to whom plaintiff had turned over the animal for exhibition and whom plaintiff was assisting in getting started in the venture. It further appears from the record that local officers at Connersville investigated the circumstances of the tragedy, which plaintiff, of course, deeply deplored, and, concluding that plaintiff was not at fault, did not prosecute him. If opprobrium was inferable from the published version of the tragedy, such inference could be properly drawn only by the jury, in a jury case. It was not a prerogative of the court, under the ascertained. facts. We are of the opinion that the use of the word “exonerated” was not, in the undisputed circumstances, libelous per se, and the jury could well have found from plaintiff’s own evidence that the published explanation that the gun was accidentally discharged while plaintiff was cleaning it, was not so harmful as would have been the more accurate explanation that the accident occurred as a result of a scuffle for its possession between plaintiff and a drunk man.
Numerous other statements in the published articles,- included in those condemned by the trial judge as libelous, were of doubtful purport, and were denounced without regard to.the issue of substantial truth. These statements are pointed out and discussed in the briefs, but we have mentioned only a few of them in this opinion, which would be prolonged inexcusably by a discussion of them. The publications were, in the main, of such nature that only jury findings that they were substantially true in fact could excuse defendants from liability for the injuries obviously sustained by plaintiff as a result of the utterances. But there was material evidence, whether false, fanciful, incongruous or silly, as some of it appe.ars to be, to support the statements, and it was for the jury, and not the court, to appraise that evidence and resolve the issues raised by it. We sustain defendants’ first proposition.
Plaintiff has propounded several propositions based upon cross-assignment^ of error, of which there are thirty-six. It is first contended that defendants’ pleading setting up the confessions upon which much of the published stories were based should have been stricken on plaintiff’s exceptions. The rule, stated generally, is that every pertinent fact and circumstance out of which an action for libel arises, even though they do not justify a publication, are admissible, if pleaded, in mitigation of damages resulting from the publication. Art. S431, R.S.1925, as amended by the Acts of 1927 (40th Leg. p. 121, Ch. 80, § 1 [Vernon’s Ann. Civ. St. art. 5431]); Newell Lib. & Slander (4th Ed.) §§ 768, et seq.; 27 Tex.Jur. p. 710, § 62. Under the cited statute, it is necessary that such facts and circumstances be pleaded as a basis for their admission in evidence, and upon that conclusion we overrule plaintiff’s propositions 14, 16, 18, 19, 20, 21.
Plaintiff’s 15th and 17th propositions are to the effect that allegations and proof of his failure to deny or reply to the published stories was no defense to repetition of those publications, and could not mitigate the resulting damages, if the stories were found libelous and false. No authorities are cited to this point by either party. It seems that, while there is no reported Texas case, so far as we have ascertained, the authorities differ in other states, some holding pleading and evidence of silence on the part of the libeled party to be admissible in defense or mitigation; some holding to the contrary. Annotation, 56 A.L.R. 255. This being a case of first impression in this State, we are of the opinion, and so hold, that the failure of a person to answer or deny a libelous newspaper publication is not available as a defense to his suit for libel, or in mitigation of damages sustained by him as a result of the libel. We sustain plaintiff’s 15th and 17th propositions, and the cross-assignments of error upon which they are based.
Other questions are presented in the appeal, but as they are not likely to arise upon another trial, they need not be discussed or decided here. •
But, for the error in withholding from the jury the issues of the truth and effect of statements, raised by material evidence, the judgment will be reversed and the cause remanded for another trial.