Bee Publishing Company v. Shields

• Decision Date: 30 April 1903
• Docket Number: 12,502
• Citation: 94 N.W. 1029,99 N.W. 822,68 Neb. 750
• Parties: BEE PUBLISHING COMPANY ET AL. v. GEORGE W. SHIELDS. [*]
• Court: Nebraska Supreme Court

94 N.W. 1029

99 N.W. 822, 68 Neb. 750

BEE PUBLISHING COMPANY ET AL. v. GEORGE W. SHIELDS. ^[*]

No. 12,502

Supreme Court of Nebraska

April 30, 1903

Rehearing appears in 99 N.W. 822

ERROR to the district court for Douglas county: WILLIAM W. KEYSOR DISTRICT JUDGE. Affirmed.

Affirmed.

Edward W. Simeral and W. J. Connell, for plaintiffs in error.

William F. Gurley and Ed P. Smith, contra.

OLDHAM C., POUND, C. BARNES, POUND and OLDHAM, CC., concur. SEDGWICK, J., dissenting.

OPINION

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 a suit for libel was commenced by the 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 communications between them, while 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, 28 L.Ed. 158, 4 S.Ct. 12. 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 sufficient defense."

It is well 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 with 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 responsible for an abuse of such privilege. It is unquestionably the right of the press to freely discuss, criticize 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 criticizing 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. 145, 2 A. 568, 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 offenses can not be justly and reasonably inferred from 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 was 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, 25 N.W. 710, 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."

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, 34 Neb. 472, 51 N.W. 1037; 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 published 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, 38 N.W. 857. It has also been held proper in other states for the purpose of taking away the alleged privilege of criticizing 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, 68 N.W. 403; State v. Haskins, 109 Iowa 656, 47 L.R.A. 223, 80 N.W. 1063.

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...