ERROR
from the district court of Douglas county. Tried below before
IRVINE, J.
AFFIRMED.
Morris & Beekman and Gurley & Marple, for plaintiff in error:
The
language complained of was not in itself libelous, and there
was in the petition no colloquium or innuendo laid by the
defendant in error by which it could be made so. The court
erred in not entering judgment for the plaintiff in error
notwithstanding the verdict. (Odgers, Libel & Slander [1st
Am. ed.], 112; Greenwood v. Cobbey, 26 Neb. 455;
Sweetapple v. Jesse, 5 B. & Ad. [Eng.], 31; West
v. Smith, 4 Dowl. [Eng.], 703; Tebbetts v. Goding, 9
Gray [Mass.], 254; Brettun v. Anthony, 103
Mass. 37; Jones v. Hungerford, 4 Gill & J. [Md.],
402; Geisler v. Brown, 6 Neb. 259.)
Mahoney
Minahan & Smyth, contra, cited: McMurry v. Martin,
26 Mo. App., 437; Iron Age Publishing Co. v. Crudup,
85 Ala. 519; Karow v. Continental Ins. Co. of New
York, 57 Wis. 56; Finch v. Vifquain, 11 Neb
280; Rosewater v. Hoffman, 24 Neb. 222; Thomas
v. Blasdale, 147 Mass. 438; Karger v. Rich, 51
N.W. [Wis.], 424; Montgomery v. Knox, 23 Fla. 595;
Doan v. Kelley, 121 Ind. 413; 1 Chitty, Pleading
[13th Am. ed.], 656; McGavock v. Pollack, 13 Neb
535; Renfrew v. Willis, 33 Neb. 98; Brown v.
Piner, 6 Bush [Ky.], 518; St. Martin v. Desnoyer, 1
Minn. 156.
RAGAN,
C. IRVINE, C., not sitting.
RAGAN, C.
John S
Mullen brought this, a suit for libel, in the district court
of Douglas county against the World Publishing Company, a
corporation engaged in the publication of a newspaper in the
city of Omaha, and hereinafter called the "Publishing
Company." There was a trial to a jury, with a verdict
and judgment for Mullen, and the Publishing Company brings
the case here for review. The evidence has not been preserved
by a bill of exceptions and there was no motion in the court
below for a new trial. After the jury had returned its
verdict, counsel for the Publishing Company moved the court
for judgment upon the pleadings, notwithstanding the verdict,
upon the ground that the petition of Mullen did not state a
cause of action. This motion the district court overruled,
and its ruling on this motion is the only assignment of error
argued here.
The
article printed by the Publishing Company alleged by Mullen
to be libelous and on which he bases his suit is in words and
figures as follows:
"MULLEN'S
INSURANCE.
"The
Company Declines to Pay the Risk of His Building.
"John
S. Mullen is the plaintiff in two suits in the county court
against the German Fire Insurance Company of
Peoria, Illinois. The suits are to recover the value of two
insurance policies which Mullen held on his saloon and store
in Albright, which were destroyed by fire August 31, 1890.
There were a number of suspicious circumstances at the time,
and it was reported that Mullen fired the buildings himself.
The agent of the insurance company investigated the matter,
and as a result the company refused to pay the insurance,
which amounts to $ 1,900 on both policies. Mullen now brings
suit and it will be contested by the company. Its agent said
it had excellent grounds for contesting the case, but refused
to state what facts they were in possession of in regard to
Mullen's complicity."
Mullen
alleged no special damages in his petition and it contains no
colloquium or innuendo, and the argument of the Publishing
Company is that the petition does not state a cause of
action, as the language is not libelous per se.
Counsel for the Publishing Company well say: "The courts
no longer strain to find an innocent meaning for words
prima facie defamatory, neither will they put a
forced construction on words which may fairly be deemed
harmless." Any written or printed statement which
falsely and maliciously charges another with the commission
of a crime is libelous per se; and in determining
whether the words of a 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, conveys, or is calculated to convey, to persons
reading it the charge of a crime. (Pokrok Zapadu
Publishing Co. v. Ziskovsky, 42 Neb. 64, 60 N.W. 358.)
The question here then is, what is the plain import, the
ordinary meaning of the language of the article published?
What would ordinary men of ordinary common sense understand
from reading this article? That Mullen owned a saloon and
store in Albright; that it was insured against
loss or damage from fire in the sum of $ 1,900 by the German
Fire Insurance Company of
Peoria, Illinois; that the property was destroyed by fire on
August 31, 1890; that there were a number of suspicious
circumstances surrounding the destruction of the insured
property which caused the insurance company to refuse to pay
the loss; that the insurance company at least suspected
Mullen of burning the property himself or being an accomplice
therein; and that it was reported--some person or persons had
said--that Mullen had burned the insured property. In
Rosewater v. Hoffman, 24 Neb. 222, 38 N.W. 857
Rosewater caused to be published in a newspaper a letter in
which he stated...
