Hoxsey v. Fishbein (83 F. Supp. 282, 1949)

ATWELL, Chief Judge.

The plaintiff operated in Dallas, Texas, in valuable property which he owned, a cancer clinic, in which he employed a licensed doctor, nurses, and approximately twenty employees. His business had been in operation in Texas for a number of years.

The defendant, an employee of the American Medical Association, wrote articles which were published in some of the other defendants’ newspapers, and this suit ’seeks to recover $500,000 actual damages and $500,000 punitive damages.

The article is headed, “Medical Hucksters,” and charges the plaintiff with being a “charlatan,” and a “quack.” It also charges his father with having died of a cancer, and that he, the father, used the same remedies. It also charges that the plaintiff “hood-winked” jurists.

The Texas statute — see Brinkley v. Fishbein, 5 Cir., 110 F.2d 62, allows the defense of the truthfulness of. the accusations, and a reasonable and fair comment or criticism of matters, of public concern published for general information. See also Fletcher v. Evening Star Newspaper Co., D.C.Cir., 114 F.2d 582.

The statute, itself, is shown in arts. 5430 to 5433, R.S.Tex.1925, Vernon’s Ann.Civ. St. art. 5431.

Even though charges are libelous per se, the defense provided for in the statutes is available. Wheless v. W. L. Davis & Son, Tex.Civ.App., 122 S.W. 929; Nunn v. Webster, Tex.Com.App., 260 S.W. 157; Dickins v. International Brotherhood, 171 F.2d 21.

Art. 5432 of the Acts of 1927, 40th Legislature, chapter 80, paragraph 2, Vernon’s Annotated Civil Statutes, gives a newspaper a reasonable and fair comment or criticism of matters of public concern published f