26 Neb. 449 | Neb. | 1889
The defendant in error brought an action against the plaintiff in error in the district court of Gage county, to recover damages for slander, and on the trial obtained a verdict for $1,500, and a motion for a new trial having been overruled, judgment was entered on the verdict.
There are three counts in the petition.
In the first and second counts the slanderous words are alleged to have been spoken on the 27th day of July, 1887. The charges in each of these counts need not be referred to, as for reasons which will presently be stated, there must be a new trial. In the third count, the words complained of are alleged to have been spoken on the 28th of July, 1887. The plaintiff in error objected to the third count as not stating a cause of action. This objection was strongly insisted upon in the court below and the overruling of the same is now assigned for error. The count is as follows: “ The plaintiff for a third cause of action complains of the
At the time indicated, Wymore was a city of the second class, having more than one thousand and less than twenty-five thousand inhabitants, and was governed by the provisions of article I, chapter 14, Compiled Statutes. The plaintiff in error was mayor of said city, and the defendant in error, city attorney thereof. Section 6 of the chapter aforesaid provides that: “At the time of holding the general city election in each year, there shall be elected a mayor, a clerk, a treasurer, a city engineer, and the couneilmen hereinbefore provided for; and a police judge shall be elected at each biennial, city election; and the mayor with the consent of the council may appoint a city attorney, and an overseer of streets, who shall hold their offices for one year unless sooner removed by the mayor, with the advice and consent of the council.”
Section 12 provides that: “He [the mayor] shall, from time to time, communicate to the city council such information and recommend such measures as in his opinion may tend to the improvement of the finances of the city, the police, health, security, ornament, comfort, and general prosperity of the city.”
There are other provisions in regard to the duty of the mayor in guarding and protecting the rights of the city, to which we need not refer.
The leading case in this country on the subject of privileged communications appears to be Thorn v. Blanchard, 5 Johns. 508. In that case the plaintiff in error, with twenty-three others, inhabitants of the same county, presented a petition to the council of appointment, stating that B., district attorney, was actuated by improper motives in his official conduct, and that from malice toward some, and the emoluments arising from the public prosecutions in other cases, gave rise to many indictments, and praying that B. might be removed from office, which petition was read by the council, who removed B. from his office. It was held that an action for a libel would not lie against A. at the suit of B. The first count of the declaration in that case is as follows: “ Whereas, the said Anthony is, etc., yet the said Stephen, well knowing the premises, but contriving and wickedly and maliciously intending to injure the said Anthony, in his aforesaid good name, fame, credit, and reputation, and to bring him into public scandal, infamy, and disgrace, amongst his neighbors and others, the good citizens of this state, and to cause him to be dismissed and discharged from his said, honorable and lucra
It will be observed that the plaintiff, in the declaration set out, alleges special damages sustained by himself in consequence of the alleged libelous acts complained of, viz., “His removal from office, and consequent loss of the emoluments thereof.” No such injury is alleged to have resulted from the statement of the plaintiff in error in the case at bar. For aught that appears in the petition he still retains the office of City Attorney of Wymore, with the emoluments thereof, and has sustained no special damages. But, it is said, the’words. charged to have been uttered by the plaintiff in error, import the commission of a felony, and hence are actionable per se. It is alleged that the plaintiff in error was the mayor of Wymore, and the defendant in error city attorney. The statement is alleged to have been made by the chief executive of the city to the body empowered by law to investigate a charge, and, if found to be true, apply the proper remedy, and if false, dismiss
A thoroughly capable and conscientious lawyer who is generally successful with his cases, may, by reason of interest, connection, or inclination, be unfit for a city attorney; and it need not be any disparagement of his general char_ acter. So in regard to the alleged charge that his opinion is too easily warped, etc. This is not necessarily a charge of bribery or dishonesty; and there is no statement in the petition that such a charge was intended. A court cannot extend the meaning of words beyond their plain import; nor will it, in determining the sufficiency of a petition, place a stronger meaning than the plaintiff has done on certain words in order to make them slanderous. In the case cited, it was held that where the complaint was made to the board authorized to redress the grievance, no action would lie against the complainant. This case is cited with approval in Vanderzee v. McGregor, 12 Wend. 545; Howard v. Thompson, 21 Id. 319; O’Donaghue v. M’Govern, 23 Id. 26.
Ail of the cases seem to agree that communications of
It is unnecessary to review the other errors at length, as they will probably be avoided on the next trial. We desire to say, however, that to support the cause of action'in the first and second counts, the proof must show a charge of larceny. Proof of a less charge will not be sufficient.
The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.