The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-05-23
JUDICIAL BEHEsTs.
Abstract of Cases Decided by the
Supreme Court.

| NSeAoS VI Ohs0S OSClQ6U ny liz
Supreme Court.
The supreme court decided the follow
ing cases yesterday:
j. w. jackson ct al. We. w. s. Jones, ad
ministrator, from Bell county; reversed
and remanded. Opinion by Associate
Justice Henry.
Joseph Ootulla VS.. John A. Kerr ct al,
from FRO county; reversed and remanded
Opinion by Associate Justice Henry.
Q. M. Harrison, receiver, vs.. Fred Ilgnor
from Val Verde county; reversed and re.
manded. Opinion by Associate Justice
Gaines.
Motion to dismiss the appeal was over.
ruled in the case of the International and
Cheat Northern Railroad company VS.. the
State.
Opinions of the commission of appeals
we're adopted reversing the judgments OF
the lower courts and remanding the fol.
lowing cases:
s. H. Lumpkin Va. Adams d Wickes,
from San Saba county.
j. d, Sweatman VS.. Thos. Stratton ct al .
from Wise county.
Susan L. Byrne ct al. VS.. G. w. Sampson
ct al, in error from Karnes county.
In Lutterloh vs.. McIlhenny Co. ct al,
from Coryell county, the opinion of the
commission of appeals is reformed and
Judgment of the lower court is affirmed.
The commissioners opinions are
adopted, affirming judgments of the lower
courts, in the following:
Houston and Texas Central Railway
company vs.. f. S. Lowe, from Grayson
county.
l.. B. Collins ct al. VS.. Panhandle Ma
tional bank, from Wichita county.
Gustave Gushing VS.. Dan O. Smith, from
Bexar county.
Oscar Crawford ct al. VS.. W. j. McGinty
ct al, from Bexsr county.
In the Cotulla case appellant soughtto
recover for the publication of a libel, in
which Kerr and others requested Cotulla
county commissioner to resign his office
ION account of his action with reference
to public roads as not being in accord
with their views of what is to the best
interest of tt cir recinct," alleging that sit
meets the universal and just oondemna-
ton that such short-sighted conduct de-
serves" because "they we're unwilling, as
taxpayers, to pay him $4,000 for the use
of a road through his pasture, when the
jury of neighbors have fixed the damages
at $50, etc."
Defendants, among other defenses
pleaded that it was intended that the
writing should be handed to plaintiff in
person, and that its publication in the
Cotulla Ledger was without their knowl-
edge and against their wishes.
The supreme court holds that insofar
as the pleadiugs set up the truth of the
charge that plaintiff acted as county COM
missioner in proceeding Gas to his pas
ture) in which he had per-
sonal interest, the exceptions
raised were properly overruled.
The exceptions to other matters contained
in the pleadings, and particularly so much
as are referred to in appellants sixth as
signment las to injuries to him by the
publication affecting his private business)
it is held that the exceptions should have
been sustained.
Referring to the statement in the al
legged libel that "Cotulla's actions show
him to be commissioners for Joe Cotulla
only, and not for his precinct, No.
l." this, the court says, taken with
another paragraph, are together not OF
such doubtful or uncertain meaning as to
require their submission to a jury to as
certain whether or not they are libelous.
We think it clear that they were intended
to be understood as charging that plain
tiff, in his official character, had been i'm
properly and corruptly influenced by pc
cuniary considerations and had willfully
acted and voted as county commissioner
when his private interests were involved,
and had represented his own in
terest instead of discharging his duty to
the public. Held 1t was the duty of the
court to charge that the publication was
libeloHs, instead of leaving that fact for
the jury to find from the evidence.
Whether a publication is privileged or
not is question of law for the court
and in this case the Judge should have in
structed the jury that the publication in
question was not privileged.
There can be but one lawful defense in
this case: If plaintiff shall establish las he
must to recovery that defendants signed
and published the libel; and, that is, that
it Is true, then the jury should be instruct
ed 10 returA verdict for at least nominal
damages and such actuel damages as the
evidence may show to be the proximate
result from the publication, but not for
remote or speculative damages, such as
loss of credit, expense or borrowing
money, etc.
AS for existence of probable cause, it
must be confined in this case to reasona BILE
grounds for believing that plaintiff did
sit, as above explained, in Judgment in
some matter in which he had pecuniary
interest and acted in behalf of that intar-
est instead of with reference to the dis
charge of his public duties.
Charges of the court as to defendants
not publishing retractions when they saw
the article published are regarded as be-
ing inepplicable. The judgment is re-
versed and the cause remanded.