42 Neb. 64 | Neb. | 1894
Anton Zizkovsky sued the Poprok Zapadu Publishing Company (hereinafter called the “ Publishing Company ”) in the district court of Douglas county, for damages for an alleged libel published by the latter of and concerning the former. Zizkovsky had a verdict and judgment, and the Publishing Company prosecutes error to this court.
On and prior to October, 1890, the Publishing Company was a corporation engaged in the printing and publishing, in the city of Omaha, of a newspaper in the Bohemian language, which paper circulated almost exclusively among Bohemians of the state — a very large number of whom resided in the city of Omaha — its circulation being about 4,000. On the date above mentioned, Zizkovsky was the
In Hendrickson v. Sullivan, 28 Neb., 329, it was held that' “ words falsely and maliciously spoken of a person, which impute the commission of. some criminal offense, involving moral turpitude, for which the party, if the charge be true, may be indicted and punished by law, are actionable per se, and no special damages need be alleged or proved in order to maintain the action.” It is equally true that any written or printed statement which falsely and maliciously charges another with the commission of an indictable, criminal offense is libelous per se, and in a suit predicated upon the publication of such false and malicious statement the plaintiff need neither aver nor prove special damages. In determining whether the words of a printed publication are libelous the courts will not resort to any technical construction of the language used, but the court and the jury will read the words in court as they would read them else-. Where. Language alleged to be libelous is to be construed in its ordinary and popular .sense, and the question is whether the language, when so construed, did convey, or was calculated to convey, to persons reading it the charge cjf a crime. (Turrill v. Dolloway, 17 Wend. [N. Y.], 426; Thomas v. Blasdale, 147 Mass., 438; Hayes v. Ball, 72 N. Y., 418.)
“(2.) Every publication, by writing or printing, which falsely charges upon or imputes to any one a crime which renders him liable to punishment, or which alleges against him that which is calculated to make him infamous or odious in the estimation of the public, is libelous per se, and in such a case malice is implied from the publication against .the publishers thereof.”
“(4.). You are instructed that any publication in a newspaper charging one with an offense punishable under the law, or tending to bring him into contempt among his fellow-men, is a libel per se, or of itself, and in such case it is not required that the plaintiff should prove express malice or ill-will towards him on the part of the defendant, the law in such a case presumes malice.”
The criticism made upon these instructions is that they, omit falsity and malice as elements of a libel. While this may be technically correct, the court was not obliged to use the,words “false” and “malicious” in every instruction
It is further argued that by the instructions above the-jury were in effect told that if the publication complained of was libelous, the publisher was liable therefor even though the charge made therein was absolutely true. In the first place, we do not think that a jury of reasonable men could have put any such interpretation upon these instructions. In the second place, the law presumed that the charge was false, and the Publishing Company did not plead that the charge was true. The truth or falsity, then, of the charge made against Zizkovsky was not put in issue either by the pleadings or evidence in the case. Again, we-are by no means prepared to concede the other proposition of counsel, that the truth of a charge is always a complete defense in libel. The constitution (article 1, section 5) declares that “in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.” From this it would seem that even the truth is not a complete defense iu an action for libel, unless the libel was published with good motives and for justifiable ends. However this may be, we do not think it can be fairly said that the effect of these instructions was to tell the jury that they might convict the Publishing Company of libel even if they believed that the charge alleged to be libelous was in fact true.
“(4.) You are instructed that the law implies damages from the publication of libelous words, without proof of*73 special damages, and it also implies that the person who publishes the libel intends the injury which the libel is calculated to produce.” It is objected to this instruction that as the element of falsity is omitted therefrom, the jury were, in effect, told that the law implies damages from libelous words whether they be true or not. What has already been said above with reference to instructions 2 and 4, given by the court on its own motion, must dispose of this criticism.
“(8.) You are instructed that a cemetery association organized under the general laws of this state is a private corporation, and that the corporation, its officers and servants, have the same and equal immunity and protection from criticism that a private individual possesses, and that the publisher of any newspaper who publishes a criticism of and concerning the officers and servants of a private corporation is responsible to the same extent for such criticism as though it had been published of and concerning a private individual.” It is argued that this instruction was erroneous for three reasons:
■ (1.) Because the court instructed the jury that the cemetery association, of which Zizkovsky was secretary, was a private corporation. We think it was. “Private corporations are associations formed by the voluntary agreement of their members. * * * Public corporations are not voluntary associations at all, and there is no contractual relation between the corporators who compose them. They are merely government institutions, created by law, for the administration of the public affairs of the community.” (Morawetz, Private Corporations, sec. 3.) This Bohemian Cemetery Association was organized under chapter 16, Compiled Statutes, 1893, entitled “Corporations,” section 45 of which provides that “it shall be lawful for any number of persons, not less than five, who are residents of the county in which they desire to form themselves jnto an association, to form themselves into a cemetery
(2.) The second objection to the instruction is that because it told the jury that the officers of the cemetery association had the same immunity and protection from criticism that a private individual had, therefore the instruction assumed, as a universal proposition, that a private individual was exempt from criticism. We do not think that the effect of this instruction was to tell the jury that the law absolutely protected a private individual from criticism.
(3.) The third objection to th.e instruction is that by it the jury were told that the publisher of a newspaper was liable for any criticism of a private individual. We do not think the language of the instruction will bear such a construction.
“(9.) You are instructed that in arriving at a verdict in this case you are not to take into consideration anything that may have been said by counsel as to the criminal liability of any of the members of the defendant corporation.” The arguments made by counsel to the jury are not in the record; and we are at a loss to understand how the question of the criminal liability of any of the members of the Publishing Company could have been in issue in this case, and therefore we cannot say that the court erred in giving the instruction complained of.
Another argument under this head is that this publication under the circumstances was a privileged communication. “A communication is privileged within the rule when made in good faith, in answer to one having an interest in the information sought; and it will be privileged if volunteered when the party to whom the communication is made has an interest in it, and the party by whom it is made stands in such relation to him as to make it a reasonable duty, or, at least, proper that he should give the information.” (Sunderlin v. Bradstreet, 46 N. Y., 191.) We do not think that the publication in this case comes within the
Counsel for the Publishing Company eloquently appeal to us to set aside this judgment, because, they say, “that to sustain such judgment would be to establish a dangerous
“Who steals my purse, steals trash; ’tis something, nothing.
’Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed.”
The judgment of the district court is
Affirmed.