86 Neb. 862 | Neb. | 1910
Lead Opinion
This case is before us a second time. The opinion of Mr. Commissioner Epperson on the former hearing, reported in 82 Neb. 675, contains such a frill and clear statement of the case that we do not deem any further statement necessary. On the second trial in the district court, plaintiff again recovered judgment, and defendant appeals.
Defendant’s first contention is: “There was no sufficient evidence to support the allegation that the libel was published of and concerning the plaintiff.” It is asserted by plaintiff, and not denied, that plaintiff’s testimony upon this branch of the case is the same as that offered on the former trial. This being true, defendant’s first contention must fail for the reason that that point is decided adversely to it by our former decision. We there said: “Plaintiff’s competent evidence fairly establishes the fact that he is the person referred to by Mr. Thomas. No attempt was made to prove the contrary. Defendant tried the case upon the theory that plaintiff was the person whose character was assailed by the publication. If the case depended upon this assignment of error, we doubt that we could recommend a reversal.” We think it must be said of this last trial, as was said of the former, that “defendant tried the case upon the theory that plaintiff was the person whose character was assailed by the publication.” Indeed, the closing paragraph of its answer shows such to have been defendant’s theory, viz: “Further answering said petition, and as a further defense thereto, this defendant alleges: First, that at and for a long time prior to the 26th day of November, 1904, plaintiff’s general reputation in the city of Omaha, Douglas county, state of Nebraska, was bad;-that his reputation was that of a gambler, and the associate and protector of the criminal classes, and a pernicious and baleful manipultor of Omaha city politics and a foe of good government,” These allegations by defendant coincide go fully with the state
Defendant’s second contention is that the court erred in instruction number 2, given by the court upon its own motion. The objection is as to the use of the words “bv this same individual”, in the closing portion of the paragraph of the instruction objected to. The contention is made that the court thereby substituted the words “by this same individual” for the pronoun “he.” We do not think the instruction is susceptible of this criticism. What the court told the jury was: “And that the following statement set out in plaintiff’s petition as a part of Ihe alleged libelous publication, to wit: ‘That county attorney Shields offended this same individual, and a convict in the Iowa penitentiary says he was offered $3,000 to dynamite Shields’ house’ likewise was and is libelous per se, provided that you shall find that the fair and reasonable interpretation of said words, taken in the sense that is most natural and obvious and in the sense in which those persons to whom the publication should come would be most likely to understand them, is as follows: That county attorney Shields offended this same individual, and a convict in the Iowa penitentiary says he was offered by this same individual $3,000 to dynamite Shields’ house.” It will be seen that the court, by the words complained of, was not assuming to quote from the alleged libel, but was instructing the jury that the statement contained in the publication would be libelous per se, provided the fair and reasonable interpretation of the words used is that the offer of $3,000 to the convict to dynamite Shields’ house was made “by this same individual”; referring to the same individual who was the one referred to and aimed at throughout Mr. Thomas’ speech. We do not think the court erred in the use of the words referred to, nor do we think that even if they had been improperly used it could be held that they were prejudicial to defendant.
Plaintiff’s fourth contention is that “the court erred in permitting the plaintiff to testify as to the alleged bomb.” It is contended that the petition contains no allegation that any bomb was thrown or exploded upon Mr. Thomas’ porch or elsewhere. In precise language, this is true; but we think the allegations of the petition are sufficient to support the proof tendered upon that point. The second paragraph of the petition sets out the alleged libel in the reported speech of Mr. Thomas: “When I began this fight as attorney for the civic federation I saw at the
The fifth and last assignment is that the damages awarded are excessive and were entered by the jury under the influence of 'passion and prejudice. This branch of the case was submitted to the jury upon instructions, the correctness of which are not questioned by defendant. We cannot say as a matter of law that their verdict is not sustained by the evidence. Two juries have found substantial damages for the plaintiff. Two district judges who heard the evidence have denied new trials and entered judgment's upon those verdicts. Under the circum
Finding no prejudicial error in the record, the judgment of- the district court is
Affirmed.
Dissenting Opinion
dissenting.
I cannot agree that the allegation of the answer quoted in the opinion furnishes an identification of the plaintiff as the person concerning whom the libel was published. A defendant may plead as many defenses as he has, under the express provision of the code. It is not inconsistent to plead that the supposed libel was not published of and concerning the plaintiff, and in the same answer allege that the plaintiff has the precise characteristics defined in the libel.
If a libel charges larceny and is really published of and concerning A, and B sues supposing it was published concerning him, the defendant would clearly be entitled to defend on both grounds; that B had in fact been guilty of larceny, and that he was not the party concerning whom the supposed libel was published. In such case to allege in the answer that B was in fact a thief would not identify him as the person concerning whom the supposed libel was published.
The right given by statute to plead consistent defenses ought not to be abridged by the courts. It is for this reason that I consider it my duty, to dissent from that part of the reasoning of the opinion and not because it necessarily affects the conclusion reached, in which I concur.