Bee Publishing Co. v. Shields

Oldham, C. On the 7th day of April, 1899, there appeared as an editorial in the Omaha Evening Bee, the following article: “It is announced by the official organ of the gamblers’ gang that County Attorney Shields has complaints supported by' irrefutable evidence that would convict some sixty owners of gambling devices who have been operating in South Omaha, but that he will not prosecute the criminals on condition that they offend no more. Is this not a beautiful state of affairs for a reform county attorney? It is reliably stated that the evidence has been at hand for weeks, that protected gambling was going on unmolested in South Omaha, but the county attorney would not interfere until after election, out of apprehension that he might injure the chance of popocratic candidates. Now he openly proposes to pigeonhole the complaints and the evidence in deference to the interests of the gang. If, as is commonly reported, the South Omaha gamblers had to put up liberally for protection to run, how much have they had to put up to secure immunity from prosecution by Mr. Shields?” The same article reappeared in both the morning and evening editions of the Bee of April 8, Shortly thereafter — 752 — a suit for libel was commenced by tbe plaintiff in the lower court against the Bee Publishing Company, and Edward Rosewater and Victor Rosewater, editors of the Bee, on account of the publication of this article. An answer was filed to plaintiff’s petition by the several defendants, in which they admitted the publication of the article, but alleged, in substance, that it was a privileged communication, published in good faith and without malice. The answer failed to allege that the charges contained in the publication were true. After the evidence had been taken in the case, the suit was dismissed as to Edward Rosewater, and a verdict was returned by the jury in favor of plaintiff and .against the other defendants in the sum of $2,500. There was judgment on the verdict, and defendants bring error to this court. The first question with which we are confronted is as to the character of the article sued on; whether it is a strictly privileged communication, a communication of qualified privilege, or whether it is libelous per se. The court below treated the article as a publication of qualified privilege, and cast the burden upon the plaintiff of showing express malice; and for this purpose admitted in evidence subsequent publications contained in the same paper, referring back to the article in issue for the purpose of showing malice in the original publication. To this ruling complaint is made in the brief of plaintiffs in error; their contention being that the article is one of absolute privilege, and that the subsequent articles referring back to it were likewise privileged and, consequently, not admissible in evidence for the purpose of showing malice. In the law of libel and slander there is clearly recognized two classes of privileged communications. One class is absolutely privileged and can not be made the foundation of an action for libel or slander. Of this class is a communication between attorney and client, husband and wife, parent and child, physician and patient, priest and confessor, and those necessarily occupying such a confidential relation to each other that public policy demands that the — 753 — communications between them, Avhile such relation exists, be held absolutely sacred. This privilege is protected, not on account of the contents of the communication, but on account of the relation existing between the parties between whom the communications pass. Vogel v. Gruaz, 110 U. S. 311. We think it is apparent that no such confidential relationship exists between the publishers of a newspaper and its numerous readers as to grant absolute immunity for anything that may be published in its columns. In fact counsel for plaintiffs in error do not rest their contention on the ground of a confidential relationship existing between the publishers of the paper and the reading public in general, but rather on the ground that the, editorial complained of was a legitimate criticism of the conduct of a public officer in the discharge of his duties, and as such it was a proper exercise of the liberty of the press. It is declared in section 5, article 1, constitution of Nebraska : “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a suffieent defense.” It is Avell to notice that the liberty of speech and press are guaranteed alike in this section of the bill of rights; that which a man may write with impunity, he may speak Avith impunity; what may be published in the columns of a newspaper may be proclaimed from the hustings, the pulpit, or the lecture platform; that the liberty of the press is and should be no more sacred than the liberty of speech. While the liberty of each is a sacred right dear to the hearts of an entire Anglo-Saxon civilization, yet the lawmakers and the framers of constitutions have all realized that liberty in the exercise of any natural right when unrestrained by law leads to licentiousness, and have therefore wisely provided that any one exercising the liberty of speech or of the press within this state shall be held re — 754 — sponsible for an abuse of such privilege. It is unquestionably the right of the press to freely discuss, criticise or comment fairly upon the acts or omissions of a public officer of the county, state or nation; but it is not permitted, under the.guise of criticising official'acts, to maliciously defame the character of an official. The rule with reference to this right is well defined by the supreme court of Pennsylvania, in the case of Neeb v. Hope, 111 Pa. St. 145, when it says: “An occasion of privilege will not justify false and groundless imputations of wicked motives or of crime. The conduct of public officers is open to criticism, and it is for the interest of society that their acts may be freely published with fitting comments and strictures. But a line must be drawn between hostile criticism upon public conduct and the imputation of bad motives, or of criminal offenses, where such motives or offences can not be justly and reasonably inferred from the the conduct.” If, then, we treat the article in controversy as one of special privilege, because of the fact that it was a comment upon the acts of a public official, it vas still actionable, unless true and published with good motives and. for justifiable ends. As before stated, the court below was of the opinion that the article was privileged to such an extent as to require the plaintiff to show malice in its publication, and for this purpose admitted subsequent articles immediately following the publication sued upon and referring back to, and, in fact, reiterating the charges contained in the original article. This evidence was all confined by instructions merely to the purpose of showing malice in the original publication. In Gribble v. Pioneer Press Co., 34 Minn. 342, the rule is announced: “In an action for publishing a libel upon a plaintiff, evidence of other publications by defendant containing substantially the same imputation as sued upon, whether made before or after the latter, or even after suit brought upon it, may be admitted in evidence for the purpose of proving actual malice in the publication prosecuted for.” — 755 — This rule is supported by the holdings in Commonwealth v. Damon, 136 Mass. 441; Chamberlin v. Vance, 51 Cal. 75; Symonds v. Carter, 32 N. H. 458; McCleneghan v. Reid, 31 Neb. 172; and is also laid down in Starkie, Slander and Libel, secs. 587-589. The next complaint urged is as to the action of the trial court in admitting evidence as to the extensive circulation of the paper in which the alleged libel was jrablished in this and other states. Testimony of this kind, however, has universally been held to be proper, at least for the purpose of tending to show the injury that may follow from the extent of the publication. For this purpose it was held proper by this court in the case of Rosewater v. Hoffman, 24 Neb. 222, 230. It has also been held proper in other states for the purpose of taking away the alleged privilege of criticising a public official within his jurisdiction to show that the circulation of the paper extended beyond the territory in which the official act is committed. Buckstaff v. Hicks, 94 Wis. 34; State v. Haskins, 109 Ia. 656, 47 L. R. A. 223. Complaint is next made of the action of the trial court in excluding a communication written by plaintiff in answer, to the charges made against him in the article in controversy, and published in the World-Herald on May 12, 1899, more than a month after the alleged libel was printed, and after suit had been instituted in this case. The authorship of the letter was proved in the cross-examination of plaintiff, and it was offered for the alleged purpose of showing plaintiff’s feeling toward the editors of the Omaha Bee. We think the court was right in excluding it. When asked the question as to his feelings toward óne of the editors, the witness answered that his feelings were very hostile; the cause was dismissed as to the other editor, so that the question of his feelings toward the latter are immaterial even if this was a proper method of proving such fact. It is complained by plaintiffs in error that the instructions as a whole were unfavorable in spirit and contents — 756 — to them, and .special criticisms are directed against certain paragraphs thereof. As before stated, the instructions were all based on the theory that the editorial in controversy was a communication of qualified privilege; and after stating the issues arising on the pleadings, the court fold the jury, in substance, that the burden was upon the plaintiff to show that the publication was made maliciously. The court then defines libel in a manner approved by the authorities and not complained of by plaintiffs in error, and tells the jury that a publication is privileged when the author is so situated, that it is his duty to the interests of society, morality or good government to communicate the matters contained, and when he does “so in good faith without actual malice.” The court then says that one must not take advantage of a privileged occasion to exhibit malice toward and to unlawfully and wrongfully injure another by publishing false and defamatory matter concerning him, and that if he does so he forfeits the privileged occasion and becomes a libeler subject to the ordinary rules of law relating thereto. In the following paragraph of the instructions the court said: “The publication of the article set forth in the petition is admitted, and, if the matters therein contained were true, the public had an interest in knowing them, and it was the duty of the defendant to publish them. The occasion of the publication of the article set out in the plaintiff’s petition was therefore a privileged one, and the article aforesaid was so far a privileged communication that, in order to recover in this action, the plaintiff must prove by a preponderance of the evidence that the defendants made said publication with actual malice toward him.” This paragraph is criticised by counsel, because they say it seems to insinuate that it would be necessary for them to show that the article was true in order to justify its ‘publication. This is not a legitimate inference from the instruction, because it closes by telling the jury that the plaintiff must prove by a preponderance of the evidence that the defendant had made such publication with actual — 757 — malice toward him. This instruction was certainly exceedingly favorable to defendants, and it is not- reproduced here for the purpose of commending it as properly declaring the law in cases of this nature, but merely for the purpose of showing that plaintiffs in error are not the party to this controversy that should complain of it. The next paragraph is criticised because it told the jury that: “* * * in determining whether or not the defendants were moved by actual malice in making the publication complained of, the jury should examine the original and subsequent publications received in evidence, consider the nature of the charges, the extent of the publicity given them, their truth or falsity, whether or not the defendants had reasonable grounds for believing and did believe them to be true, and any and all other facts and circumstances proven on the trial which show or tend to show the attitude of the minds of the defendants toward the plaintiff in making the publication in controversy.” The criticism rests on the theory that subsequent publications should not have been admitted in evidence; a question which has already been fully disposed of in this opinion. Complaint is also made because the trial court permitted the jury to determine whether or not the article sued on, when fairly construed in its ordinary meaning, charged the plaintiff with the crime of bribery and malfeasance in office. Each of the offenses were properly defined by the court, and we see no error in permitting the jury to find from the testimony whether a fair and reasonable construction of the language in the article contained a charge of either or both of these offenses against the plaintiff. It will he noticed that the language of the article is not, as contended by counsel for plaintiffs in error, a mere expression of an opinion as to the disposition of a public officer toward the matter concerning which he is criticised. The article says that it is reliably stated that “protected gambling was going on unmolested in South Omaha, but — 758 — the county attorney would not interfere until after election, out of apprehension that he might injure the chance of popocratic candidates.” To repeat or publish a slanderous or libelous communication is to indorse it as genuine, so that when this alleged “reliable” statement was published in defendants’ paper, the names of the defend^ ants were in law written across the back of the publication as an indorsement of the truth of the charge contained therein. It will be noticed that the editorial also contained this statement: “If, as is commonly reported, the South Omaha gamblers had to put up liberally for protection to run, how much have they had to put up to secure immunity from prosecution by Mr. Shields?” This is not an expression of an opinion that at some future time the gamblers might contemplate paying money to the county attorney for the privilege of protection, but the language can, by reasonable innuendo, be construed to charge that the gamblers had already paid money to the county attorney for protection against prosecution, and if it does-so it certainly amounted to a charge of bribery, as defined by our Criminal Code. It is finally contended that the verdict in the case is excessive; that, at most, plaintiff should only have been awarded nominal damages for the publication complained of. It was said by this court in the recent case of Williams v. Fuller, ante, p. 354, that: “Where the publication is libelous per se, the plaintiff is not required to introduce evidence of actual damage to entitle him to substantial damages.” The jury was properly instructed against allowing anything by way of vindictive or punitive damages. This case has been tried twice to a jury; the first time a larger quantum, of damages was awarded, so that we do not feel that we would be justified in saying that the amount of the verdict was necessarily the result of prejudice and passion. — 759 — It is, therefore, recommended that the judgment of the district court be affirmed. Barnes and Pound, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.