Pokrok Zakadu Pub. Co. v. Ziskovsky

• Decision Date: 02 October 1894
• Citation: 60 N.W. 358,42 Neb. 64
• Parties: POKROK ZAKADU PUB. CO. v. ZISKOVSKY.
• Court: Nebraska Supreme Court

42 Neb. 64

60 N.W. 358

POKROK ZAKADU PUB. CO.

v.ZISKOVSKY.^*

Supreme Court of Nebraska.

Oct. 2, 1894.

Syllabus by the Court.

1. 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 statement the plaintiff need neither aver nor prove special damages.

2. In determining whether the words of a publication are libelous the courts will not resort to any technical construction of the language used, but construe it in its ordinary and popular sense.

3. It seems that the truth alone is not a complete defense to an action for libel. To make it such, it must appear that the publication alleged to be libelous was made with good motives, and for justifiable ends.

4. A cemetery association organized under section 45, c. 16, Comp. St. 1893, is a private corporation.

5. A communication is privileged when made in good faith in answer to one having an interest in the information sought; and it will be privileged when volunteered, if the party to whom the communication is made has an interest in it, and the party by whom it was 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.

6. The secretary of a cemetery association organized under the incorporation law of this state is not a public officer, in such sense as to enable the publisher of a newspaper to claim that an article published concerning him, and charging him with embezzling the funds of such cemetery association, is a privileged communication, and thus compel such secretary, in an action for libel, to prove express malice. Wilson v. Fitch, 41 Cal. 363, followed.

7. In an action for libel, where the publication made the basis of the suit charges the plaintiff with the commission of a crime, the law presumes that the plaintiff is innocent thereof, and such presumption becomes conclusive where the defendant to the action does not plead as a defense thereto the truth of the charges.

8. In an action of libel for publishing a statement charging the plaintiff with having committed a crime, whether such publication was maliciously made, and whether its publication was an injury to the plaintiff, are questions of fact for the jury.

9. In such a case, in the absence of all evidence, the law presumes that in the publication of such charge the publisher was actuated with a malicious intent, and that the plaintiff suffered some damages thereby.

10. It is not a defense to a suit for libel that the defendant had reasonable grounds to believe, and did believe, that the charge made by him was true. Such facts, if shown, would not relieve the publisher from liability.

Error to district court, Douglas county; Ferguson, Judge.

Action by Anton Ziskovsky against the Pokrok Zakadu Publishing Company for libel. There was a judgment for plaintiff, and defendant brings error. Affirmed.Moriarty & Langdon and Frank T. Ransom, for plaintiff in error.

Capek & Piatti and Herdman & Herdman, for defendant in error.

RAGAN, C.

Anton Ziskovsky sued the Pokrok Zakadu 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. Ziskovsky 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, Ziskovsky was the secretary of a cemetery association, a corporation organized by a number of Bohemians under the general incorporation laws of the state. The members of the cemetery association were all Bohemians, and only people of that nationality, or speaking that language, were entitled to become membersof such corporation, and make interments in said cemetery. The article published by the publishing company and made the basis of this action, translated into English, was as follows: “The cemetery association held again, on Monday, after a long while, one of its meetings. The meeting was not a very harmonious one, and the consequence was that Mr. Anton Ziskovsky, the sec. pro tem, gave up his office. And how could he do otherwise, since the other members of the committee did not approve of his economy and his method of running the society's affairs? He paid out money whenever he felt like it. He paid it to whomsoever and how he pleased, without consulting anybody. But that is not the only thing. Some of his expenditures are suspicious. For instance, he counts that for 19 days' work he paid $1.75 a day, whereas such work is paid $1.50 a day, and there are reasons to suppose that he paid no more than that, putting those 25 cents for each day into his own pocket. Another one of his entries also caused bad blood. He charged $10 for five visits to the cemetery. Not a single officer ever charged anything for something of that kind, as the inspection was always done on a day when nothing could be lost, as in the case of Ziskovsky's. And he, finding out that the committee cannot approve of such ‘economy,’ did not wait for them to take away the office from him, but resigned himself. With such economists as Ziskovsky is, the society would very soon end. The blame of this rests mainly with the members, who are indifferent, and who do not go often enough to the meetings, all which enables such people as Ziskovsky to sneak into office and smear their pockets.”

1. The first argument made is that the publication complained of is not libelous per se, and, since no special damages are alleged in the petition, it does not state a cause of action. It will be observed that the publication complained of, in effect, made the charge that, while Ziskovsky had expended only $28.50 of the cemetery association's funds for labor upon the cemetery grounds, he charged to the association, and took from its funds, the sum of $33.25 for said labor, and converted the difference of said sums, or $4.75, to his own use. This was, in effect, charging Ziskovsky with having committed the crime of embezzlement. In Hendrickson v. Sullivan, 28 Neb. 329, 44 N. W. 448, 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 elsewhere. 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 of a crime. Turrill v. Dolloway, 17 Wend. 426;Thomas v. Blasdale, 147 Mass. 438, 18 N. E. 214;Hayes v. Ball, 72 N. Y. 418.

2 and 3. The second and third errors assigned in the petition in error relate to the admission and rejection of testimony on the trial. But what particular evidence the court erred in admitting or rejecting is not specifically pointed out, and for that reason these alleged errors cannot be considered.

4. The fourth alleged error argued in the brief is that the court, in stating the case to the jury, told them that the “plaintiff had filed a reply to the answer, in which he denies each and every allegation of affirmative matter therein set forth.” Counsel for the plaintiff in error say this was a mistake; that no reply was then on file, and none was put on file until after the motion for a new trial had been overruled. The record bears out the statement of counsel for the plaintiff in error. But this action of the court is not assigned as an error in the petition in error filed herein, nor did the plaintiff in error take any exception to the statement of the issues as made by the court.

5. The fifth error argued by counsel for plaintiff in error in their brief relates to the giving of certain instructions given by the court on its own motion, as follows: (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 plaintiff 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 given to the jury. Instructions...