Bee Pub. Co. v. World Pub. Co.

• Decision Date: 07 March 1900
• Citation: 59 Neb. 713,82 N.W. 28
• Parties: BEE PUB. CO. v. WORLD PUB. CO.
• Court: Nebraska Supreme Court

59 Neb. 713

82 N.W. 28

BEE PUB. CO.

v.WORLD PUB. CO.

Supreme Court of Nebraska.

March 7, 1900.

Syllabus by the Court.

1. A newspaper article in which it is falsely stated that a business corporation is maintaining a precarious existence; that it is not able to meet its financial obligations, and is tottering, bankrupt, and about to pass out of existence, is libelous per se.

2. In this state the measure of recovery in all civil actions is compensation for the injury sustained.

3. In the trial of an action for libel, it is improper to receive evidence of express malice for the purpose of influencing the jury in determining the amount which plaintiff ought to recover.

4. But if, in such action, a plea of justification has been interposed, evidence of express malice may be received for the purpose of disproving the claim of defendant that in the publication of the article he acted in good faith, from proper motives, and for justifiable ends.

5. A plea justifying a libel is defective if the evidential facts, instead of the ultimate facts, are alleged; but if the trial court and the litigants treat the plea as sufficient, and proof is introduced on the theory that it is sufficient, its infirmity may be cured by amendment.

6. The law presumes that some damage results from the publication of an article libelous per se, and it is the business of the jury, in an action for such injury, to determine the amount of damage.

7. In the trial of an action for damages resulting from the publication of a newspaper libel, where the gist of the action is injury done to plaintiff's business, it is proper to show the extent and character of the business, and its volume, both before and after the publication of the libelous article.

8. In such case the jury should take into account the probable future as well as the actual past, and assess the damages once for all.

9. In an action for libel, under the allegation of loss of business, it is competent for the plaintiff to prove a general loss or decline of patronage, without naming particular customers, or proving that they have ceased to do business with him.

10. And, in such case, if evidence of special damages is received without objection, it may be considered by the jury.

11. Where a defamatory article contains an imputation upon the solvency and stability of a large newspaper concern, it is proper, in the trial of an action to recover damages occasioned by the libel, to show by expert proof the general effect of such an article on the business of such a publisher.

12. In all judicial proceedings, disputed questions of fact must be established by the best evidence attainable.

13. Evidence cannot be received which on its face indicates that it is secondary, and that the original source of information is in existence and accessible.

14. The admission of incompetent evidence is not reversible error, if the fact which it tends to prove is otherwise conclusively established.

15. Where it appears that a judgment is based on a verdict which is excessive, though not given under the influence of passion or prejudice, it may be permitted to stand, even in actions ex delicto, on condition that the excess be remitted.

16. Damages held to be excessive, and plaintiff allowed to file a remittitur.

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

Action by the World Publishing Company against the Bee Publishing Company. Judgment for plaintiff. Defendant brings error. Modified.

E. M. Simeral and E. Wakeley, for plaintiff in error.

Hall & McCulloch, for defendant in error.

SULLIVAN, J.

This proceeding in error brings up for review a judgment of the district court of Douglas county in favor of the World Publishing Company and against the Bee Publishing Company. The action was brought to recover damages for an alleged libel published by the defendant concerning the plaintiff, and in relation to its business. Each of the litigants is a corporation engaged in the publication of a newspaper in the city of Omaha. The article complained of was printed in two editions of the Omaha Daily Bee, and, in substance, asserted that the World-Herald (the newspaper published by the plaintiff) had been maintaining for some time a precarious existence; that it was no longer able to meet its financial obligations; that it was tottering, bankrupt, and about to pass out of existence. The story was told with much detail and ornamentation, and was well calculated to convince the reader that the plaintiff was moribund, and about to collapse as a business concern. The defendant in its answer admitted the publication of the article as set forth in the petition, and alleged that at the time of such publication it was generally believed that the plaintiff was about to sell or had sold its newspaper; that the article in question was published as an article of news, without malice, with good motives, and for justifiable ends. It was also alleged that the plaintiff was in fact trying to sell its newspaper, and that its assets were less than its liabilities.

During the trial the court admitted, over the defendant's objections, evidence tending to show that the libelous article was the product of actual malice, and that it was published with a deliberate purpose to impair the plaintiff's credit and destroy its business. These rulings are now assigned for error. In this state the measure of recovery in all civil actions is compensation for the injury sustained. Exemplary damages are never allowed. Boyer v. Barr, 8 Neb. 68;Roose v. Perkins, 9 Neb. 304, 2 N. W. 715;Riewe v. McCormick, 11 Neb. 261, 9 N. W. 88;Boldt v. Budwig, 19 Neb. 739, 28 N. W. 280. The evidence of express malice was therefore improper, if received for the purpose of influencing the jury in determining the amount which the plaintiff ought to recover. If the publication was false, and not privileged, legal malice was indisputably established; and the plaintiff was entitled to full reparation for the wrong done it, without proving that the defamation was inspired by resentment, malevolence, or a desire on the part of the defendant to be rid of an offensive business competitor. But it seems clear to us, from a careful examination of the entire record, that the evidence in question was not given to enhance damages, but to disprove the defendant's claim that in libeling the plaintiff it acted in good faith, and from motives altogether proper and justifiable. The plea of justification was defective, no doubt, in alleging evidence of plaintiff's insolvency, instead of setting forth the ultimate facts, but it was treated by the court and the litigants as a sufficient plea; and it was, we think, such an evident and obvious attempt to justify the libel that it might have been amended, and its infirmity cured, without terms, during the trial, or even after verdict. It was, within the doctrine of McCleneghan v. Reid, 34 Neb. 472, 51 N. W. 1037, a denial of malice, and a substantial justification of the act of which plaintiff complains. That the Bee Publishing Company relied on the truth of the article and the motives for its publication as a complete defense is shown by the fact that it produced testimony tending to prove that the plaintiff was insolvent, and that the defendant acted in good faith and under a sense of duty to the public. If this evidence was not designed to sustain a plea of justification, it is difficult to conceive for what purpose it was offered. The trial court charged the jury that exemplary or punitive damages were not recoverable, and, in effect, advised them that neither malice nor good faith could be taken into account or given any weight whatever in the assessment of damages. So it appears that the evidence of express malice was not only properly received, but was, under the instructions of the court, kept within its legitimate sphere of influence.

Another reason assigned for reversing the judgment is that the damages awarded are excessive. In this connection it is insisted that the defamatory article was not libelous per se, and that the loss of advertising patronage, not having been specially pleaded, was not recoverable under a general allegation of damages. The article was libelous per se. It contained a distinct imputation on the plaintiff's solvency. Its natural and inevitable tendency was to produce injury. The law presumes that some damage did result from the publication, and it was the business of the jury to determine the amount. 1 Jag. Torts, 493; Publishing Co. v. Miner, 12 Colo. 77, 20 Pac. 345;Hubbard v. Rutledge, 52 Miss. 581;Boogher v. Knapp, 76 Mo. 457;Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724, 20 L. R. A. 138;Locke v. Same (C. C.) 22 Fed. 771;Newell v. Howe, 31 Minn. 235, 17 N. W. 383. In Odgers, Lib. & Sland. 293, it is said: “Even if no evidence be offered by the plaintiff as to damages, the jury are in no way bound to give nominal damages only. They may read the libel, and give such substantial damages as will compensate the plaintiff for the defamation.” Lick v. Owen, 47 Cal. 252; Tripp v. Thomas, 3 Barn. & C. 427. In this case there was evidence showing that plaintiff was conducting a very extensive business, requiring an annual outlay of about $180,000; that the Omaha Bee had a wide circulation in this and other states, and reached a great many of plaintiff's advertising patrons; that in the year following the publication of the libel there was a considerable falling off in plaintiff's advertising patronage....