75 Neb. 811 | Neb. | 1906
Thomas J. Sheibley, the plaintiff in error, filed his petition in the district court for Madison county ashing to
“(2) That by means of said false-and defamatory publication the plaintiff was injured in his reputation to his damage in the sum of $6,000. Wherefore plaintiff asks ■ judgment against said defendant for said amount of $6,000, and for costs of suit.”
The defendant answered: “(1) Denying each and every allegation in said petition contained except as hereinafter specifically admitted or otherwise answered. (2) Admits that he published the article substantially as set out and complained of in the plaintiff’s petition, but denies that said article was published falsely, wickedly or maliciously; alleges that the said article as aforesaid published by the defendant and set forth and complained of in plaintiff’s petition is true, and defendant believed the same to be true at the time of its publication, and published the same in good faith with good motives and for justifiable ends, to wit, for the purpose of advising his readers regarding the character of J. J. McCarthy, who was then a candidate for congress in the third district of this state, which included Madison county, in which said county and district Norfolk is located, and defendant was supporting said J.
Upon the trial the plaintiff called William N. Huse, the defendant, as a witness, AA'ho testified that lie lived at Norfolk, Nebraska; that lie was publisher of a newspaper, the Norfolk Daily News, and was such publisher on the 1st of November, 1902, and prior to that time. He further testified that he published the article in question in his daily paper which Avas of general circulation in this state; that he had knoAvn Thomas J. Sheibley, the plaintiff, for about 25 years; that he was commonly knoAA'n as “Tom Sheibley,” and that he Avas at one time clerk of Dixon county. Upon objections made by the defendant, the- court refused to allow him to state whether the party referred to in the article was Thomas J. Sheibley, the plaintiff in the action, or whether he was the party referred to in the opinion in the 85th Northwestern Reporter. T-Tuse was the only witness sworn, and after his examination the plaintiff rested. Whereupon the defendant unwed the court to direct a verdict in his favor upon the folloAving grounds: “First, because there is not sufficient evidence to authorize the plaintiff to recover; second, because the petition does not state facts sufficient to constitute a cause of action; third, because it is not alleged in the petition that the article, AAdiich is a quoted article, was Avilfully and maliciously republished by the defendant with a knoAvledge of its falseness, and with intent to injure and libel the plaintiff.” This motion Avas sustained, and the jury directed accordingly. The plaintiff’s motion for a neAV trial was overruled, and he has brought the case to this court on error.
A motion made by the defendant to quash the bill of exceptions was submitted Avith the case. The objection urged against the bill is that the presiding judge does not certify that it contains all the evidence offered and re
It is urged with great earnestness, on the part of the defedant in error, that the plaintiff’s petition is not sufficient, in that it contains no recital of facts showing that the alleged libelous article referred to the plaintiff, or that he was the party, or one of the parties, against whom the charges made in the article were directed. In the absence of a statute to the contrary, if the defamatory words are indefinite or ambiguous, and extrinsic facts and circumstances are necessary to show that the plaintiff was meant, the petition must set forth such extrinsic facts and circumstances in order to connect the plaintiff with the allaged defamatory matter. This is the common law rule. Section 131 of the code has abrogated that rule. It is as; follows: “In an action for a libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him.” In a late case before the supreme court of Kansas (Eckert v. Van Pelt, 69 Kan. 357, 66 L. R. A. 266), an identical statute was under consideration. The libelous article complained of in that action did not contain the name of the plaintiff, and a demurrer was interposed to the petition, which was overruled. In review
“It is argued that this ruling of the court was erroneous, for the reason that the newspaper article alleged to be libelous did not contain the name of plaintiff below, and because there was no allegation that the public understood the language* used to refer to Yan Pelt. The averments of the petition expressly charge* that defendant published the words ‘of and concerning him, the said plaintiff.’ The omission of the* name of a libe*le*d person in a publication concerning him does not de*prive the matter of its libelous character if it be alleged and shown to whom the words used were intended to apply. Whatever may have been the common law rule, it is not now necessary to allege, in order to state a cause of action, that the public understood the words printed to refer to the plaintiff. Section 4559, Gen. Stat. 1901, reads: ‘In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove on the trial the facts showing that the defamatory matter was published or spoken of him.’ Counsel for plaintiff in error cite the case of DeWitt v. Wright, 57 Cal. 576, which supports their claim for the necessity of an averment that the person or persons who read the article knew that the plaintiff was meant. This case, however, was expressly overruled in Harris v. Zanone, 93 Cal. 59, 28 Pac. 845, in which it was said that the rule of the former case is not supported by authority, or justified on principle.”
As was said in Kinyon v. Palmer, 18 Ia. 377: “The statute dispenses with the averment of extrinsic facts (and hence with much of the useless verbiage of a common law declaration in slander or libel), showing that plaintiff was meant by the defamatory matter, it being sufficient to aver, in general terms, that it was published of and concerning him.”
We think that under the decisions in all states having a
It is further argued in support of the action of the trial court that the petition does not fairly charge a publication by the defendant. In his brief it is said: “It is not alleged that the Norfolk News is a newspaper, magazine or other publication having a circulation, or, in other words, that there was a publication of the libel. To simply compose or write an article, however libelous it may be, is not sufficient to constitute a cause of action against the author or to make it actionable. It must hi published, that is, it must have been given out or circulated in some way. There is no allegation of a publication ór of a circulation of the article, and we are certainly within the safe rule of pleading when we say that this is strictly essential to a recovery, and that ' the court cannot presume that the Norfolk News is a newspaper, magazine or other publication having a circulation.”
In Hemphill v. Holley, 4 Minn. 233 (Gil. 166), it is held that, where the defendant, in an action for libel, admits the publication and attempts to justify in his answer, he is estopped from objecting to the complaint on the ground that the publication is not sufficiently alleged. And, while the question is not before us and we do not announce it as a rule to be followed, the authorities are numerous to the effect that, where the defamatory matter is in writing, no direct averment that it has been communicated to a third person is necessary.
It is further urged that the article is not libelous per se, and that, as no proof of malice in publishing the same was offered, the court properly directed a verdict for the defendant. It can hardly be claimed that procuring a libel to be published against another is not a criminal offense, and, when the article in direct terms charges the party or parties referred to in the article with procuring perjured statements against the character of J. J. McCarthy, it cannot certainly otherwise appear to the reader than that these parties were guilty of procuring the publication of a libel.. Again, iri Townshend, Slander and Libel, sec. 176, it is said:
Counsel further insist that the original matter contained in the article is not libelous, and, as to the quoted matter, the defendant did no more than to copy from publications made in other papers, and that this is not sufficient to sustain a charge of libel, and the trial court was therefore justified in directing a verdict. ' No authorities are cited in support of this position. An examination of the question has convinced us that the rule is well established that it is no defense to show that a defamatory publication was first made by another person or newspaper and was simply copied with proper credit. Under some circumstances?
It is further insisted by the defendant that the matter complained^ of was privileged, and that being so, the law does not imply malice in its publication, the burden being on the defendant to show malice. The law relating to privileged communications is generally classed as follows: (1) When the author or publisher acts in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests; (2) -anything said or written by a master giving the character of a servant who has been in his employ; (3) words used in the course of a judicial proceeding; (4) publications duly made in the ordinary mode of parliamentary proceedings; and a qualified privilege extends to reasonable comment made on the acts of a public official or of one who presents himself as a candidate for a public office. The extent to which the cases go in relation to a candidate for a public office is that, where a person, knoAving or believing that a candidate for public office is guilty of conduct affecting his fitness for the position, communicates that knowledge or belief to the electors whose support the candidate is seeking, the publisher, acting in good faith in the discharge of his duty to the public, may make such reasonable comments and give such information as comes to him from a reliable source, and which he believes to be true, for the purpose of informing the voters of the fitness of the candidate. In the case under consideration the plaintiff was not a candidate for office, and there was no moral or legal duty resting upon the defendant to publish to the world defamatory matter affecting the character or reputation of one whose only relation to the public is that of a private citizen, and, as is said in Morse v. Printing Co., 124 Ia. 707:
*822 “If one assumes the responsibility of proclaiming such matter from the housetops, or through the public print, the law affords him no defense except upon proof of the truth of the publication.”
It is also urged in argument that the defendant, being the publisher of a newspaper and a supporter of J. J. McCarthy, a candidate for congress in the district where the publication was made, owed a duty to the electors to publish a refutation of the slanderous charges made against the candidate for the benefit of his readers and the voters of that district. In the language of Morse v. Printing Co., supra:
- “This proposition is without support in principle or precedent. The publisher has no right to publish in his paper matters or statements which he or any other citizen would not be justified in circulating by letter or by posting upon the blank walls of the city. Our constitution guarantees to every person liberty ‘to speak, write, and publish his sentiments on all subjects/ but holds him ‘responsible for the abuse of that right.’ * * * ‘Liberty of the press’ has never been held to mean ‘that the publisher of a newspaper shall be any less responsible than another person would be for publishing otherwise the same libelous matter.’ The contrary rule has been affirmed by the courts of this country and England with great uniformity.”.
Any explanation or exposure of the falsity of the reports concerning J. J. McCarthy, the defendant could undoubtedly publish without being liable to anyone, but when, in justification of the character of a candidate, a publisher libels and defames the character of another, he becomes liable in damages for such breach of the law, unless he can establish the truth of his charge. It is clear to us that the case made by the plaintiff’s petition and the evidence introduced was one that should have been submitted to the jury under proper instructions, and that the judgment should be reversed and the cause remanded for another trial.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.