Opinion
No. 3743.
September 29, 1938. Rehearing Denied October 20, 1938.
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Suit by Betty Bailey Wilson against MacFadden Publications, Incorporated, for alleged libelous matter published in the defendant's magazine. From judgment for the plaintiff, defendant appeals.
Affirmed.
This is a suit to recover damages for alleged libelous matter appearing in Liberty, a weekly magazine published by the appellant. The suit was originally instituted by Miss Betty Bailey, a minor, by her next friend. Subsequently she married Robert T. Wilson, known as "Bobby" Wilson, who joined her as party plaintiff in the subsequent prosecution of the suit. The article containing the alleged libelous matter reads as follows:
"The Big Game
"The Players: Philip Huston, James Gleason, June Travis, Bruce Cabot, Andy Devine, C. Henry Gordon, Guinn Williams, John Arledge, Frank M. Thomas, Barbara Pepper, Margaret Seddon. Story by Francis Wallace. Screen play by Erwin Shaw. Directed by George Nichols, Jr. Produced by RKO.
"One of the first of a host of autumn pigskin epics — and presenting a curiously hard-boiled slant upon the great American collegiate sport.
"Clark Jenkins and Cal Calhoun are rival stars on Atlantic's great team. They make no bones of the fact that they are paid, and well paid, to play good hard football. Moreover, their pals are gamblers who follow the game's vicissitudes as they follow the ponies. Then, when Atlantic faces Erie, its great rival, Jenkins is kidnaped by rival gamblers.
"In the background the makers of The Big Game offer you eight celebrated gridiron stars, ranging all the way to Bill Shakespeare, late a stalwart back of Notre Dame. Here you have intimate glimpses of fearless football figures pretty badly scared by camera and mike.
"Vital Statistics: Ambition of every pigskin star: To become a Clark Gable, Chances: Good. Ability: Usually good, thanks to lack of phoniness in football playing * * * Frank Alustiza of Stanford was easiest going of all the * * * gridders * * * William Shakespeare is of New York and not of Stratford-on-Avon and actually flunked his English while starring for Notre Dame. Will even misquotes the Bard in this. Known as the longest punter of last year's grid battles, Will booted the pigskin eighty yards in the Pitt game * * * Bobby Wilson was known as the romantic 1/4 back at S.M.U. because he was in love with the blonde hussy who led the band. * * * Jay Berwanger's become a sports writer in Chi * * * King Kong Klein is now playing pro football * * * Monk (Stanford) Moscrip's the handsomest dog of the lot. Made it a tough afternoon for Bobby Wilson in last year's S.M.U. — Stanford Rose Bowl Game, on account he was the best man in the S.M.U. backfield * * * Bones Hamilton is called by such terrifying nomenclature (nickname) because originally it was Ham Hamilton, then Hambone, then by natural progression Bones * * * Philip Huston played very un-All-American football for Blair Academy of New Jersey. Has made an eight months' windjammer trip around a good part of the world; has reported, Wall Street clerked, life-guarded, vodvilled, stocked. He's of Goshen, Virginia * * * Andy Devine has footballed for Santa Clara, Cal., Bronchos, as a lineman. Has played with or against more All-Americans than any other Hollywooder, having been in that many football pictures. Has tackled the Four Horsemen, Red Grange, and George Wilson. Is soft and fat now and got quite a beating in the riot scene, necessitating crutches, but winning his check for dear old RKO. Andy's married and has a kiddie 1/4 back * * * Bruce Cabot played a little New Mex Military Academy football; took his part in this seriously, refusing a double in the scrimmage scenes, going into training with Huston to perfect that lateral pass they pull * * * Screen play was by youngling Erwin Shaw, twenty-three-old author of the bitter antiwar play, Bury the Dead. Hollywood thought it a good joke that he was brought out and put on a football picture. What a sense of humor the big town has!" (Italics ours)
Plaintiff asserted that the use of the term "blonde hussy" as it appears in the article in that part thereof where it is said, "Bobby Wilson was known as the romantic 1/4 back at S.M.U. because he was in love with the blonde hussy who led the band", is libelous.
It was alleged Robt. E. Wilson (whom the plaintiff had married) was generally known and designated as "Bobby Wilson," a football player of the Southern Methodist University, and Betty Bailey was leader of the University Band, and at the time of the publication it was generally known she was engaged to marry the said Bobby Wilson. Further, it was generally known the country over that she, Betty Bailey, led the band, and that Bobby Wilson was a famous football player.
It was conceded by defendant that the lady referred to in the alleged libelous portion of the article was the plaintiff Betty Bailey Wilson, as she was the person who led the band and was engaged to Bobby Wilson at that time. The court's charge together with the issues submitted and the answers thereto returned by the jury read as follows:
"This case is submitted to you upon the following special issues which you will answer from a preponderance of the evidence, that is, the greater weight and degree of credible testimony before you, without regard to the effect your answers may have upon the judgment in this case.
"By the term `Libel' is meant 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, to impeach the honesty, integrity or virtue or reputation of anyone, and thereby expose such person to public hatred or ridicule.
"Special Issue No. 1.
"Do you find and believe from a preponderance of the evidence, considering the whole article introduced in evidence, that the use of the term `blonde hussy,' therein, would be understood by the ordinary reader thereof as words impeaching the virtue or reputation of the plaintiff, Betty Bailey Wilson ?
"Answer `yes' or `no.'
"Answer: Yes.
"Special Issue No. 2.
"Do you find and believe from a preponderance of the evidence, considering the whole article introduced in evidence, that the use of the term `blonde hussy' therein, would be understood by the ordinary reader thereof, as words of contempt or ridicule of the plaintiff Betty Bailey Wilson?
"Answer `yes' or `no.'
"Answer: Yes.
"Special Issue No. 3.
"Do you find and believe from a preponderance of the evidence that the ordinary reader of the article in evidence, from the context of the words within the four corners of said article, would understand that the words, `blonde hussy,' therein, were used in their innocent sense and meaning, as alleged by the defendant?
"Answer `yes' or `no.'
"Answer: No.
"Special Issue No. 4.
"What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably compensate the plaintiff, Betty Bailey Wilson, for the injuries, if any, which she may have sustained to her reputation, and for the mental anguish and humiliation, if any, which she may have sustained, directly and proximately caused by the publication of the article in question published in Liberty Magazine of date the 28th day of November, 1936, which has been introduced in evidence ?
"Answer in dollars and cents, if any.
"Answer: $2950.00.
"You are the sole judges of the facts provided; the credibility of the witnesses and of the weight and credit to be given to their testimony, but the law you will receive from the court, which is herein given you and be governed thereby.
"After argument of counsel, you will retire to the jury room, select your own foreman and writ your answers to the special issues in the space provided after each issue; your foreman will sign the form of verdict as shown below.
"You are further instructed that while you are deliberating upon your verdict, you will not mention, refer to, nor take into consideration, by mental reservation or otherwise, any matter, fact or circumstance other than the testimony that has been produced upon the witness stand, and the law as given you in the charge of the court, all of which I instruct you, you must strictly observe and obey."
By bill of exception it was shown that plaintiff's counsel, Mr. J. W. Madden, in addressing the jury on behalf of the plaintiff in opening argument, among other things, made the following argument, to wit: "I want you to write the kind of verdict that you would be proud of, a verdict written with your conscience; I want you to say to the defendant in this case you can't publish libelous, defamatory matters in this country; you can't call a young lady without justifiable cause a hussy, and I will say to you gentlemen if you do write that kind of a verdict, if you write the kind of verdict they want written in this case you will be saying to the world that it is perfectly all right in Dallas County to call a young lady a hussy; but, if you write that kind of a verdict, I want you to go further and when you go out of this court room write on the court house door, `For he who enters here there is no hope.' "
Immediately following such utterances, in open court, the defendant, through its counsel, Sidney L. Samuels, addressed an exception to such argument, which exception was as follows: "We except to the statement of counsel that when they retire from this court, leave this court house, in the event they should find for the defendant, that they should then write upon the court house door of Dallas County that `he who enters here leaves hope behind,' that is inflammatory, and outside the record. We except to that remark because their duty is to find a verdict from your Honor's instructions, regardless of what may be put upon the court house."
The court sustained such objections, and stated to the jury: "Gentlemen of the jury, you will disregard the last remarks said by Mr. Madden."
Following the statement of the court, Mr. J. W. Madden, of counsel for the plaintiff, then stated: "We except."
Immediately following the above exception, Mr. J. W. Madden concluded his argument to the jury as follows: "Gentlemen of the jury, just write the verdict you think should be written under the evidence in this case, and we will be perfectly satisfied. I thank you."
Judgment was rendered in favor of Mrs. Wilson for the damages assessed, from which the defendant appeals.
Muse Muse, of Dallas, and Samuels, Foster, Brown McGee, of Fort Worth, and Hays, St. John, Abramson Schulman, of New York City, for appellant.
Aldredge, Shults Madden, of Dallas, for appellee.
Complaint is made of that portion of the first paragraph of the charge in which the jury was instructed to answer the issues "from a preponderance of the evidence, that is, the greater weight and degree of credible testimony before you."
Such an instruction has been condemned by the Supreme Court (Texas Emp. Ins. Co. v. Lemons, 125 Tex. 373, 83 S.W.2d 658, 659) and in various rulings by the Courts of Civil Appeals which need not be cited. But here each issue submitted was so framed as to clearly indicate "its own burden of proof." The jury could not have been misled or confused by the preliminary instruction regarding the burden of proof and the error complained of is harmless. Miller v. Wyrick, Tex. Civ. App. 96 S.W.2d 253; International-G. N. Ry. Co. v. Lowry, Tex. Civ. App. 98 S.W.2d 383.
The definition given of libel is in accordance with the statute and correct. Art. 5430, R.S. Furthermore, the definition as given is the same as contained in defendant's requested charge, which was given and which reads: "For your guidance in answering the special issues hereinafter submitted to you, you are told that Art. 5430 of the Texas Statutes defines libel as follows: `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 to impeach the honesty, integrity, or virtue, or reputation of any one, * * * and thereby expose such person to public hatred [or] ridicule.'"
Appellant cannot complain that the court in its general charge adopted the same definition. Texas P. Ry. Co. v. Gibson, Tex.Com.App., 288 S.W. 823.
Assignments four, six and seven complain of Issue No. One. It is first criticised as submitting a mixed question of law and fact. Such criticism is not well taken. But if it be objectionable in that respect, such objection was not made in the court below and was therefore waived. Art. 2185, R.S. It is next criticised as being multifarious. We do not so regard it. It was a proper grouping of the evidentiary facts entering into the main ultimate issue. Texas City Transportation Co. v. Winters, Tex.Com.App., 222 S.W. 541; Watson Co. v. Lone Star Service Station, Tex. Civ. App. 16 S.W.2d 151; Luling Oil Gas Co. v. Edwards, Tex. Civ. App. 32 S.W.2d 921; Missouri Pacific Ry. Co. v. Guillory, Tex. Civ. App. 28 S.W.2d 282, 283; Security Union Ins. Co. v. Guthrie, Tex. Civ. App. 41 S.W.2d 315.
It is further asserted that, having defined libel in a preceding paragraph of the charge, it was the duty of the court in the submission of Special Issue No. One to charge that in determining whether or not the term "blonde hussy" was an impeachment of virtue or reputation, the jury, in reaching a decision and in answering the question, should be guided by the definition as given in the charge. Such instruction was, in effect, given in that portion of the charge which reads, "the law you will receive from the court, which is herein given you and be governed thereby." Furthermore, no such objection to the charge was made in the court below. Nor is any such error assigned in the motion for new trial. It was therefore waived. Art. 2185, R.S.; Court of Civil Appeals Rule 24; District Court Rule 101-A; Stillman v. Hirsch, 128 Tex. 359, 99 S.W.2d 270.
Assignments eight, nine and ten complain of Issue No. Two upon various grounds, none of which have any merit and call for no discussion.
Assignment thirteen complains of Issue No. Three, in that the burden of proof was therein improperly placed upon the defendant. No exception to Issue Three was taken in the court either by objection to the charge or in the motion for new trial. The objection now urged was therefore waived. See authorities supra.
Error is assigned to the argument of plaintiffs as shown in the statement made above. This argument is not inflammatory. It was merely a far-fetched conclusion of counsel, and the court instructed the jury to disregard it. The matter presents no reversible error. Rio Grande, E. P. S. F. Ry. Co. v. Dupree, Tex.Com.App., 55 S.W.2d 522; Wells v. Henderson, Tex. Civ. App. 78 S.W.2d 683.
Assignments nineteen to thirty-three, inclusive, complain of rulings upon evidence. They are regarded as without merit and call for no discussion.
Affirmed.