239 F. 671 | 8th Cir. | 1917
Lead Opinion
William E. Johnson sued U. G. Robinson for libel and recovered a judgment. For some years prior to his resignation in September, 1911, the plaintiff was in the service of the Indian Bureau of the Interior Department as chief special officer for the suppression of liquor traffic among the Indians. At the time of the libelous publication he was in the employment of an organization known as the “Anti-Saloon League.” The defendant was the editor
“You were willing to set up in a court of justice another defense for Cruz which you knew to be untrue, and you spent altogether some $1,200 of government money in getting together a fictitious defense.” “The defense which you were preparing to set up was an absolutely false one.” * * * “It therefore follows that your payment of government funds for this purpose was a misuse of such funds.” * * * “You were totally unfit to hold any position involving the exercise of discretion.” * * * “To be guilty of moral cowardice in an extreme measure.” * * * “I, too, felt that your immediate discharge was fully warranted.”
The defenses set up in defendant’s answer were that the charges in the article and every part of them were true, and that the publication of those relating to the letter of the Assistant Secretary of the Interior was -privileged, for the reason that the letter was a public record and defendant acted without malice after a full investigation of the facts. Aside from this letter and what it covered there was practically no attempt at the trial to justify the publication by showing the truth of the charges.
“Traitor, Seducer, and Perjurer. Sensational Allegations against Commissioner Legarda,” 'etc.
It was held that the publication was not privileged. The case arose under a Philippine libel act which, however, did not change the common law in the particular under consideration here. The instruction requested by defendant in the case before us was propérly refused. It was for an absolute privilege and immunity, without the qualifying conditions made'necessary by the evidence in the case.
The judgment is affirmed.
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Dissenting Opinion
(dissenting). The alleged libelous article was published in October, 1913, and a portion of the same was an excerpt from a letter of the Assistant Secretary of the Interior. The excerpt charged Johnson with the misuse of government money in the defense of one Cruz. On April 21, 1914, the Acting Secretary of the Interior approved the recommendation of the Commissioner of Indian Affairs that Johnson’s account for expenses in the Cruz case be allowed. At the trial counsel for Johnson offered in evidence the record showing this allowance. It was objected to as incompetent, but no exception was taken. Counsel for Robinson, however, requested the court to charge the jury as follows:
“The court instructs the jury that in making up your verdict in this case you will not consider the evidence offered and introduced by the plaintiff that plaintiff’s accounts concerning the Juan Oruz trial were passed upon and approved by the Department of the Interior after the’ publication of the article in question; such accounts being approved during the year 1914.”
This request was refused, and an exception taken to the ruling. The record was not admissible on the question of good faith, as it was not in existence when the alleged libel was published. It is said that it was admissible on the question of malice. December 14, 1914, three days before the trial of the case, Robinson filed an amended answer, asserting the truth of the libel. The trial court, in reference to the refusal of the charge requested, charged the jury as follows:
“I may say to you in regard to instruction No. 10 in reference to the review of approval of these accounts of the plaintiff, I have noted the reason on the instruction as to why I did not give it. So far as these matters were transpiring and were matters of public record in the Department of the Interior at Washington when this amended answer was filed, this defendant had notice, or could have had notice, of the public files at Washington at that time, show*676 ing what had been done in reference to this matter, before this answer was filed, and it was for that reason I refused it, and it was for that reason alone that I let the testimony in originally. So you will understand my position. If this had all happened after the answer was filed, the testimony would have been clearly incompetent, in my judgment.”
The court said in the charge that the defendant had notice, or could have had notice, of the record at the time the amended answer was filed. There was no evidence that the defendant had actual notice of the record, nor was it constructive notice. I am unaware of any rule of law that would have required the defendant to search the records at Washington before amending his answer. Nothing was said to the jury by the court as to the subject concerning which the court held the record to, be admissible, and the jury no doubt considered the evidence as bearing either upon the question of good faith in connection with the original publication or as to the falsity of the charge. I think the evidence was clearly inadmissible, and it must have been prejudicial.
For this reason, I think the case should be reversed, and a new trial ordered.