86 Ark. 50 | Ark. | 1908
Murray was editor and proprietor of The Pine Bluff Press Bagle, a weekly newspaper published in Pine Bluff. Galbraith was one of the commissioner's of Graveling District No. 1 of the city of Pine Bluff. Murray published in his newspaper articles in regard to affairs of the graveling district which caused this suit for libel to be brought by Galbraith against him. The complaint is in two counts. The first count is based upon an article published on the 19th of June, 1906. It is not necessary to discuss the first article, as it is clearly libelous per se, and not privileged. '
The second count is based upon an article published on the 26th of June, after Galbraith and one other commissioner had brought a joint libel -suit, which was subsequently dismissed. This suit was brought by the appellee upon the two publications. This publication will be set out in the Reporter’s statement of the case. Among other instructions, the court gave the following: “That the articles published by the defendant and set out in the complaint are libelous per se, that they were not privileged, and that plaintiff is entitled to recover.”
The facts in evidence are not sufficient to make this a privileged publication, and if the article in the second count was libelous per se, and made a distinct and separate cause of action, then his instruction was correct; otherwise, it is error.
An examination of the article set out in the second count, when disconnected from the previous publication, renders it difficult to determine exactly what charge is brought against Mr. Galbraith. Taken in connection with the previous article, it is in a sense a repetition of the libel, and in another sense an explanation and justification of why the first article was published, rather than a charge of actual wrong-doing or dishonesty. The law seems settled that a repetition of an identical • libel is not a new cause of action, but an aggravation of the pre-existing cause, and is always competent evidence tending to prove malice. The Supreme Court of New York said: “When a libelous article is republished before the commencement of an action, a separate action can not be maintained on such publication. The repetition of the publication may be pleaded and shown on the trial and bearing up the malice of the defendant and the extent of the injury and damage to the plaintiff.” Galligan v. Sun Ptg. & Pub. Co., 54 N. Y. Supp. 471.
The Court of Appeals of New York approved the following opinion of the Supreme Court of that State: “But the authorities are uniform that words proved as repetitions of the slander charged are not an independent ground of action in the case, and that no recovery can be had for uttering them. They reflect upon and strengthen the claim for damages on account of the words charged.” Enos v. Enos, 135 N. Y. 609.
“Nor will a separate action lie on a republication by the same party of a libel, where the republication was made prior to the action on the original article.” 25 Cyc. 431.
For the admissibility of such repeated libels, see a good discussion on the subject in Gribble v. Pioneer Press Co., 25 N. W. 710.
Both the article in the first count and the article in the second count were printed before the bringing of this suit; and the utmost that can be said of the article in the second count is that it repeated the libel contained in the first. It is doubtful that it amounts to libel per se. Even if it does, however, under the principles above announced, it would not be an independent cause of action. If not libelous per se, of course the instruction is erroneous. Under either view, the judgment rendered under this instruction can not be sustained. It is clearly admissible as evidence showing the animus of the prior publication, but can not be sustained as an independent cause of action and libelous per se. The court so treated it, and therefore it erred. This error makes it necessary that the judgment be reversed, and renders it unnecessary to consider the other matters presented. •
The cause is reversed and remanded.