The first, second, and third sections of Acts 1901, entitled "An act to define civil libel; to declare certain newspaper reports to be privileged communications; to allow certain matters to be pleaded and proved in mitigation of exemplary damages in civil cases, and to declare an emergency" (Gen. Laws 1901, p. 30; articles 5595, 5596, and 5597, Vernon's Statutes), are as follows:
"Section 1. A libel is a defamation expressed in printing or writing, or by signs and pictures, or drawings, tending to blacken the memory of the dead, or 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, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.
"Sec. 2. In any action for libel, the defendant may give in evidence, if specially pleaded, in mitigation of exemplary or punitive damages, the circumstances and intentions under which the libelous publication was made, and any public apology, correction or retraction made and published by him of the libel complained of. The truth of the statement or statements in such publication shall be a defense to such action.
"Sec. 3. The publication of the following matters by any newspaper or periodical, as defined in section 1, 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the publication of the same, when in the judgment of the court the ends of justice demand that the same should not be published, and the court so orders; or any other official proceedings authorized by law in the administration of the law.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 Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 877, 152 S.W. 167, the Supreme Court, approving as correct the conclusion reached by the Court of Civil Appeals in Walker v. San Antonio Light Publishing Co.,30 Tex. Civ. App. 165, 70 S.W. 555, declared that —
"The manifest purpose of the Legislature in enacting this law was to cover the entire subject of libel as applied to civil actions, without regard to the rules of the common law and holdings of the courts on the subject."
If such was the purpose of the Legislature, it is obvious that, to accomplish it, the questions made by the record must be answered with reference alone to the meaning of the statute.
Those questions, appellant thinks, are: (1) Were the several articles libelous per se? (2) Was it entitled to prove the meaning as it claimed same to be of the language used in the respective articles, and the truth thereof with that meaning? (3) Did the burden of proving actual malice on its part rest upon appellee? (4) Was it necessary for appellee to allege and prove special damages?
The questions which appellee thinks should control in the disposition of the appeal are: (1) Were the articles libelous per se? (2) If they were, was the recovery had by him authorized in the absence, as was the case, of allegations showing he suffered special damages? (3) Did appellant in its answer allege facts justifying the publication of the respective articles?
While, because of the view taken of the record presented, the answer to the first question suggested by the parties will be the basis for the disposition to be made of the appeal, the others will be briefly noticed.
In the Guisti Case, cited above, the Supreme Court held that by the terms of the statute "a libelous publication, contrary to the common-law rule, becomes actionable without the proof of malice, whether it is or not libelous per se," and, further, that "it is not necessary to the right to maintain an action for a publication not libelous per se to allege or prove special damages." So, without reference to whether the articles in question should be construed as libelous per se or not, the question numbered 4 suggested by appellant and the one numbered 2 suggested by appellee should be answered in the negative.
In King v. Sassaman (Tex. Civ. App.) 54 S.W. 304, it was held that whether a publication was libelous or not was not to be determined with reference to what the defendant intended by the language he used, "but what the words meant to the ordinary hearer." And in Belo v. Smith,91 Tex. 221, 42 S.W. 851, the court said:
"The question is: What effect would the publication have upon the mind of the ordinary reader? What construction would he have put *Page 769 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."
If the language of the publication is unambiguous, as it is in the articles in question, it is the duty of the court to construe its meaning and determine whether it is libelous or not, and that without reference to the meaning attributed to it by either the plaintiff or the defendant. Therefore we think the question numbered 2 suggested by appellant also should be answered in the negative. And it may he added that, for the same reason, a like answer should be made to the third of the questions stated by appellee, if he means by it to suggest an inquiry as to whether the allegations in appellant's answer should be construed as charging that the imputations in the respective articles were true. The allegations did not go farther than to charge that imputations which the writer of the articles intended them to convey were true. They did not charge that imputations which, we think, an ordinary reader would have understood the language used to convey were true.
The answer to the question "Did the burden of proving actual malice on the part of appellant rest upon appellee?" will depend on the answer made to the principal question, to wit, Were the articles, respectively, libelous per se? If the latter should be answered in the affirmative, the former should be answered in the negative; otherwise it should be answered in the affirmative.
Each of the articles, it is thought, contains imputations "tending to injure" appellee's reputation and expose him to either "public hatred, contempt or ridicule," or to impeach his "honesty, integrity or virtue." Therefore, if its character must be determined with reference alone to the definition in section 1 of the statute, each of the articles should be held to be libelous on its face.
But, as is shown in the statement above, each of the articles was published by appellant in its newspapers, and was about official acts of appellee as Attorney General. Therefore a question arises as to whether their respective characters can be determined with reference to that definition alone, and without reference to the declaration in section 3 (article 5597), that —
"The publication of the following matters by any newspaper, * * * as defined in section 1, shall be deemed privileged, and shall not be made the basis of an action for libel without proof of actual malice. * * *
"4. A reasonable and fair comment or criticism of the official acts of public officials."
Should the language quoted from section 3 be treated as a qualification of the definition in section 1? In other words, is a publication by a newspaper, without actual malice, of comment or criticism of the official acts of a public official which tends to injure the official's reputation and to expose him to public hatred, etc., or to impeach his honesty, etc., libel, if the comment or criticism is reasonable and fair?
It will be noted that the declaration in section 3 in effect is that the publication by a newspaper, without actual malice, of matter as defined in section 1 (that is, matter which if published by other than a newspaper would be libelous), is not actionable if the matter published is "a reasonable and fair comment or criticism of the official acts of public officials." Now, if such a publication is not actionable, it is not libelous; for in legal contemplation nothing is libelous that is not actionable. Hence it would seem that in such a case the definition in section 1 should be treated as qualified by the language in section 3. and that it would follow that before it should be said that comment or criticism of official acts of a public official published by a newspaper without actual malice is libelous, the comment and criticism must appear, when considered with reference to the official acts commented upon, to be unreasonable and unfair.
If the statute should be so construed, then in every case where the plaintiff's cause of action is predicated upon comment or criticism of his official acts as a public official published by a newspaper, the burden is on him to allege and prove either (1) that the comment or criticism, when considered with reference to the official acts commented on, was unreasonable and unfair, or (2) that the publication was made with actual malice. The correctness of the statement will not be questioned so far as it is to the effect that the burden is on the plaintiff to show actual malice, if the comment is reasonable and fair. It is believed its correctness, so far as it is to the effect that the burden is on him to show the nature of the comment or criticism is as little subject to question; for, as we have seen, reasonable and fair comment or criticism of official acts of public officials published by a newspaper without malice is not libel. The plaintiff in such an action must bring his case within the definition of an actionable libel. He can do that, in the absence of proof of actual malice on the part of the defendant, only by showing that the comment or criticism of which he complains was unreasonable and unfair.
An examination of the articles in question, as set out in the statement above, will disclose that the language in each of them claimed to be defamatory referred exclusively to official acts of appellee as Attorney General. That appellee did not assert to *Page 770 the contrary is shown by his testimony as a witness in his own behalf. He testified:
"I cannot put my finger now on any criticism of B. F. Looney as a man, aside from B. F. Looney as Attorney General, in the Dallas News from its foundation, nor can I put my linger on any criticism of B. F. Looney as a man, aside from B. F. Looney as Attorney General, in the Galveston News from its foundation fifty years ago, down to date."
Was the language complained of "comment or criticism?" In Galveston Tribune v. Johnson, 141 S.W. 302, the Court of Civil Appeals said:
"`Comment or criticism' * * * does not involve a statement of a fact at all, but only the opinion of the writer."
If the court meant, as it is suggested it did, that "comment and criticism" ceases where language ascribing to the public officer an unworthy motive begins, then we think it gave to the words a more restricted meaning than the use made of them in the statute justified, or than is justified by the meaning ascribed to them by lexicographers. If effect is given to the language used by the Legislature in section 3, then, as has been shown, the plain meaning of the statute is that the publication by a newspaper, without actual malice, of comment or criticism of official acts of a public official which tends to expose him to public hatred, etc., or impeach his honesty, etc., is not actionable, and therefore not libelous, if such comment or criticism is reasonable and fair. If such is the meaning of the statute, then plainly, comment on, or criticism of, a public official's official act may go so far as to impute to him an unworthy motive in the performance of the act, and yet not be libelous. For instance, it is not possible to impeach the honesty of a public official, as the statute says comment on his official act published by a newspaper may, without imputing in such comment an unworthy motive to him in connection with the act; for it is not possible to impeach an act as dishonest without imputing a wrong motive to the actor.
In reaching the conclusion indicated, we have not been unmindful of the fact that at common law as anciently construed the meaning of the words "comment and criticism" was restricted as the Court of Civil Appeals may have intended in the Johnson Case, supra, to restrict their meaning. But we are of opinion effect cannot be given to the plain language of section 3 of the statute, if the meaning of the words is so restricted; and the Supreme Court, in the Guisti Case, cited above, as we have seen, declared that the statute is to be construed "without regard to the * * * common law and holdings of the courts on the subject."
Having determined that the matter complained of in the articles was comment and criticism of appellee's official acts as Attorney General, it remains for us, in answering the question: Were the articles, respectively, libelous per se? to determine whether it appeared from the faces of the several publications that the comment therein was unreasonable and unfair.
The official acts commented on were the acts of appellee as Attorney General in commencing and prosecuting in Hunt county a suit against the Magnolia Petroleum Company and others, and his acts as Attorney General in commencing and prosecuting a suit against the Missouri, Kansas Texas Railway Company of Texas and other railway companies.
As we construe the language used, personal, as distinguished from official, misconduct was not imputed to appellee in either of the articles. The imputations, briefly stating them, in regard to the suit against the oil companies were that the suit and proceedings therein were unjust and reprehensible; that it was commenced and prosecuted at the instance and for the benefit of other and competing oil companies and to further political ambition appellee entertained, and that it was filed in Hunt county, where appellee resided, as "a place where injustice may be worked out." The imputations in the articles in regard to the suit against the railway companies were that the suit was an effort on the part of appellee to wreck the Missouri, Kansas Texas Railway Company of Texas, that it was unjust, and that in instituting and prosecuting it appellee was actuated by prejudice, spite, and pique and political ambition he harbored,
Now, however unreasonable and unfair the imputations may have been in point of fact, it cannot be said they were so in point of law, unless it can first be said that it appeared from the faces of the respective articles that the imputations were not reasonable and fair. Did it so appear? If it did not, the judgment is erroneous, for it was predicated on the theory that the several publications were libelous per se, and all evidence offered in support of the theory that they were not, contended for by appellant, was rejected.
The nature of comment on an official act in every case must be determined with reference to the act. Therefore, unless in a given case the publication complained of itself, admittedly, contains full information in regard to the act, the comment should not be said, as a matter of law, to be unreasonable and unfair. Here the acts of appellee, as Attorney General, commented on were his acts in connection with the suit against the oil companies and the suit against the railway companies. Those acts did not, we think, consist alone of the filing of the suits, but included the contents of pleadings and other papers, if any, filed by him in the suit. What the pleadings were, what the contents of other papers, if any, filed by appellee as *Page 771 Attorney General were, was not fully revealed by the publications in question.
The only information about the suit and the proceedings therein against the oil companies disclosed by the articles complained of, was that it was filed in Hunt county, where appellee resided; that it was for violations of the anti-trust law of Texas and to oust the Magnolia Petroleum Company from the state; that without notice to it, appellee had his banker appointed receiver of said oil company and its property turned over to him as receiver; that the petition filed by appellee did not charge that the oil business was monopolized by the defendants, but charged that they had so parceled out the state among themselves that one of them could not sell in territory occupied by another; and further charged that said Magnolia Petroleum Company was owned by the Standard Oil Company. The only information the articles furnished about the suit against the railway companies was that the petition charged that they had consolidated their lines in violation of law, and that one of them, the Missouri, Kansas Texas, was owned by the Missouri, Kansas Texas of Kansas.
Now, the criticism complained of was not confined to the acts specifically mentioned in the articles, but, as we have seen, extended to all of appellee's acts in the prosecution of the suits. The effect of holding that the publications were per se libelous was to exclude from consideration in determining whether the criticism was reasonable and fair or not acts covered by same but not specifically mentioned. Such a rule, it is believed, should not be applied in cases like this one; for, while it might not operate unjustly in some of them, In others it might. In a given case of the class, with full information as to the acts covered by the criticisms complained of, it might clearly appear that the criticism was reasonable and fair, while with only the incomplete information contained in the publication complained of the criticism might as clearly appear to be unreasonable and unfair.
It may be, had appellee's pleadings authorized it, and had he introduced in evidence the portions of the record in the two suits referred to which showed his acts as an Attorney General in connection therewith, that it would have so conclusively appeared that the comment and criticism complained of was unreasonable and unfair that the court properly might have instructed the jury that the articles, or some of them, were libelous, not per se, but when considered with reference to the other evidence. Such a question, as we have seen, is not presented by the record before us. The question so presented is, Were the articles, respectively, libelous per se? We answer, they were not.
The conclusion reached will require a reversal of the judgment. And, it may be stated, if the statute should be construed as operating to place on appellant the burden of alleging and proving the comment to be reasonable and fair, we still would be of opinion the judgment should be reversed, because of the action of the court in sustaining exceptions to (1) the parts of appellant's answer alleging that the matter complained of in the articles was such comment and criticism; (2) the parts of said answer alleging that the article numbered 2 in the statement was a fair, true, and impartial account of a public meeting of the Corsicana Commercial Club, organized and conducted for public purposes only; and (3) in excluding evidence to support such allegations, including the pleadings and other papers filed by appellee as Attorney General in the two suits.
The assignments in appellant's brief not in effect disposed of by what has been said are overruled.
In a cross-assignment appellee complains of the action of the court in refusing to set aside the verdict of the jury denying him a recovery on account of another article published by appellant, referred to as the "Missouri article," which he claimed was libelous of him. We have reached the conclusion that the action of the court was not erroneous, and therefore overrule the assignment.
The judgment is reversed, and the cause is remanded, for a new trial.