Williams v. Ed Fuller

• Citation: 94 N.W. 118,68 Neb. 354
• Decision Date: 18 March 1903
• Docket Number: 12,642
• Parties: AMANDA M. WILLIAMS ET AL. v. ED FULLER. [*]
• Court: Supreme Court of Nebraska

94 N.W. 118

68 Neb. 354

AMANDA M. WILLIAMS ET AL. v. ED FULLER. ^[*]

No. 12,642

Supreme Court of Nebraska

March 18, 1903

ERROR to the district court for Franklin county: ED L. ADAMS DISTRICT JUDGE. Reversed.

REVERSED AND REMANDED.

A. H Byrum and Andrew G. Wolfenbarger, for plaintiffs in error.

G. M Caster, contra.

OPINION

ALBERT, C.

This is an action for libel. There was a verdict for the plaintiff, and judgment accordingly. The defendants bring error.

"The plaintiff complains of the defendant and for his cause of action, says:

"First. That he is and was on the 19th day of July, 1901, the duly appointed and acting village marshal of the village of Riverton, in Franklin county, Nebraska.

"Second. That the defendants are the owners and publishers of a newspaper known as the Riverton Review, which said newspaper is printed and published weekly in the said village of Riverton in said Franklin county, Nebraska.

"Third. That the defendant Amanda M. Williams is and was the publisher of the said Riverton Review on the 19th day of July, 1901; that the defendant Paris A. Williams is the editor of the said Riverton Review, being a weekly newspaper printed and published as aforesaid in the village of Riverton, Nebraska; and the said Gold Williams is a compositor in the office of said newspaper and is in the employ of the said Amanda M. Williams and Paris A. Williams, publisher and editor respectively of the said newspaper, the said Riverton Review.

"Fourth. That the said Riverton Review is a newspaper published in Riverton, Nebraska, and is in general circulation in the village of Riverton, Nebraska, and in Franklin county, Nebraska.

"Fifth. That on or about the 19th day of July, 1901, the said defendants Amanda M. Williams, Paris A. Williams and Gold Williams, being respectively publisher, editor, and compositor of the said newspaper, the Riverton Review, wickedly intending to injure the plaintiff, did maliciously publish of and concerning this plaintiff a certain false, scandalous and defamatory libel in their said newspaper, the said Riverton Review, being a weekly newspaper printed and published by the defendants in the village of Riverton, Franklin county, Nebraska, which said false, scandalous and defamatory libel is in the words as follows, to wit:

"'Riverton's New Marshal. Yes, we have a new marshal. He's a peach; well, we should say so; no one else could be found who would have the place, so the present incumbent who was aching to show his authority took the job. It's a bright specimen of degenerated humanity who lives off his wife and the misdeeds of other men. If he wants a sack of flour now all he has to do is to arrest somebody. He never shows his authority on the gamblers and other members of his clique, but only shows it on people he knows are law-abiding. Why does he not arrest the lazy louts who are buying booze for boys as young as 14 years? No, this pot-bellied beer-guzzling old specimen of a degenerated race stands in with just this crowd. It is strange that our town board could not find a decent man instead of a lazy and dishonorable libertine. A man who would not hesitate to steal the coppers off a dead man's eyes. This man has been caught in numerous dirty deals, and is no more fit to be an officer than the poorest beast. He is without shame, honor, or humanity, as has been shown in the past by his outrageous attack on a young man, who afterwards died. Such a man has no right to live in a decent community, yet he is allowed to exist here. I wonder why?'

"Sixth. By reason of the publication of the above-described false, scandalous and defamatory libel by the said defendants, Amanda M. Williams and Gold Williams and Paris A. Williams in their said weekly newspaper, The Riverton Review, on the 19th day of July, 1901, this plaintiff has been brought into public scandal and disgrace, and greatly injured in his good name, to his damage in the sum of $ 5,000."

A part of the defendants demurred to the petition generally, and on the ground of a defect of parties. The latter appears to have been abandoned in the argument. The court overruled the demurrer, and the ruling in that behalf is now assigned as error. In support of that assignment, the defendants contend that the article is not actionable per se. This contention is wholly without merit. Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him. Cooley, Torts, *206; World Publishing Co. v. Mullen, 43 Neb. 126, 47 Am. St. Rep. 737, 61 N.W. 108. That the language as set out in the petition, and alleged to have been published of and concerning the plaintiff, has that tendency, is too clear to admit of argument.

It is next urged that there is no allegation in the petition sufficiently alleging that the article complained of was published of and concerning the plaintiff. This complaint is also unfounded. The petition contains the positive averment, and leaves no room for doubt, that the article in question was published of and concerning the plaintiff. That being true, further allegations by way of inducement or colloquium would be superfluous and redundant.

It is next argued that the petition fails to point out the meanings of the words used in the libelous article. If the words used were of doubtful significance, or ambiguous, or were not sufficiently explained by the context, there would be much force in the argument on this point, but such is not the case. With the possible exception of one or two words, no one acquainted with our language can be left in doubt as to the meaning of the words employed. If those exceptions should be entirely disregarded, the article would still be libelous, and the petition good as against a general demurrer. The demurrer was properly overruled.

Upon the overruling of the demurrer the defendants answered, two of them joining in one answer, the other filing a separate answer. The plaintiff filed a motion to strike out portions of the answers, and one assignment of error is that the court erred in sustaining that motion. We are unable to find any order of the court sustaining that motion, and for that reason it cannot be considered. The defendants offered to prove, on behalf of the proprietors of the paper, that the article was published without their knowledge. The theory upon which this evidence appears to have been offered is that their lack of knowledge would go in mitigation of damages. The proprietor of a newspaper is civilly liable for a libelous article published therein, even though it be published without his knowledge or consent. Storey v Wallace, 60 Ill. 51; Detroit Daily Post v. McArthur, 16 Mich. 447; Andres v. Wells, 7 Johns. 260, 5 Am. Dec. 267. The defendants appear to recognize the foregoing rule, but argue that the evidence should have been received in mitigation of damages. In some states, where, in addition to compensating damages, the plaintiff is allowed punitive or exemplary damages, such evidence is admissible in mitigation of the latter, but not in reduction of actual or compensatory damages. In this state, however, the recovery is limited to actual or compensatory damages, and no punitive or exemplary damages are recoverable. Hence, such evidence, going only...