Billet v. The Times-Democrat Publishing Company

• Decision Date: 01 January 1901
• Docket Number: 13,733
• Citation: Billet v. The Times-Democrat Publishing Company, 32 So. 17, 107 La. 751 (La. 1901)
• Court: Louisiana Supreme Court
• Parties: E. A. BILLET v. THE TIMES-DEMOCRAT PUBLISHING COMPANY

32 So. 17

107 La. 751

E. A. BILLET v. THE TIMES-DEMOCRAT PUBLISHING COMPANY

No. 13,733

Supreme Court of Louisiana

January 1, 1901

Rehearing refused.

APPEAL from the civil district court, parish of Orleans -- Ellis, J.

D. M and Allan Sholars, for plaintiff, appellant.

Lawrence O'Donnell (Denegre, Blair & Denegre, of counsel), for defendant, appellee.

MONROE J. BREAUX, J., believing the amount allowed should be at most nominal, dissents in this case.

OPINION

MONROE J.

STATEMENT.

Plaintiff sues for damages for injury alleged to have been sustained by reason of the publication in the "Times-Democrat," a newspaper owned and controlled by the defendant, of the following article, which he alleges is malicious, wanton and defamatory, to-wit:

"LOST MONEY FOUND.

"The $ 500 Which Mysteriously Disappeared from Mrs. Behm's Safe Strangely Recovered.

"A case where great protestations of love and breach of trust figured was developed last Sunday, when the local police authorities, especially the detectives, were communicated with by Emile A. Billet, who, in partnership with Mrs. Louis J. Behm, conducts a grocery establishment at the corner of First and Dryades streets. Billet telephoned to the police headquarters that a safe which had, he alleges, carelessly been left open, was rifled of a sum aggregating $ 500. The mysterious manner in which the sum had been stolen, and the very unsatisfactory way he went about explaining the matter to Detectives Stubbs and DeRance aroused their suspicions as to the real thief, and it was not very long before they became convinced of the fact that Billet was the one who had appropriated the $ 500.

"Billet, in explaining the robbery to the detectives, said that Mrs. Behm, as was her custom, went to the market, and a short while subsequent to her return home the loss of the money was discovered. Billet alleges that he was under the impression that the safe was locked, and felt assured of the safety of the money, and he impressed Mrs. Behm with the same idea. In notifying the police, Billet requested that an investigation of the matter be held, and the above named detectives lost no time in arriving on the scene of the alleged robbery. They were shown the safe wherefrom the $ 500 was supposed to have been stolen. Upon an investigation of the premises and of the circumstances surrounding the robbery, the officers said that they were firmly convinced of Billet's guilt. In substantiating their allegation, they claim that it was next to an impossibility for any one to have stolen the money except whosoever may have had immediate access to the premises, such as Billet possessed. They did not hesitate to impress Billet with the idea that they believed him guilty. Accordingly they approached him, and, so the detectives allege, said that if he (Billet) did not replace the $ 500 by eight o'clock, they would place him under arrest on the charge of theft. Of course, Billet made protestations in which he maintained his innocence, but it was of no avail. After speaking thus to Billet, the officers left the grocery, saying that they would return at the aforesaid hour.

"About 6:30, or 7 o'clock, Mrs. Behm, acting on Billet's suggestion, decided to make another investigation of the safe. She summoned her mother and Billet, and they opened the safe. Mrs. Behm, in her examination, pulled out one of the drawers of the safe, wherein it was the custom to keep whatever paper money she had in the house. Finding this empty, as far as the $ 500 was concerned, she extracted the second and last drawer, little expecting to find the money there. Much to her astonishment and, apparently, to Billet's, the package of bills, which had been missing, was found. When this discovery was made, there remained about an hour of the time allowed Billet by the officers to 'find' or restore the money. The detectives maintain that they had made a thorough examination of the safe and of its contents. However, Billet alleges that they were mistaken and denies that they looked into the safe at all. It is said that Billet and Mrs. Behm are engaged to be married. The latter is at present suing her husband for a divorce, but, in the meanwhile, is living with Billet. He has had considerable experience in the grocery business and has been robbed on several occasions."

The defendant answered as follows:

"Now into court comes the Times-Democrat Publishing Company and for answer to plaintiff's demand, admits that the words complained of were published in the newspaper as aforesaid. But denies that it was done maliciously, but are bona fide comments on matters that became, and were, matters of public notoriety, etc., discussion, and were published in the course of conducting a newspaper, and are therefore privileged." And there is a prayer for judgment.

The counsel in the case began the taking of testimony on behalf of the defendant out of court, but the counsel for plaintiff objected that such testimony was irrelevant, for the reason that the answer admitted the publication and claimed that it was privileged, without affirming the truth of the statements therein contained. And this objection was reserved to be passed on by the court. Some days later, and whilst the taking of testimony in its behalf was still going on, the defendant filed an amended answer, reiterating the defense originally set up, and containing the following additional averments, to-wit:

"Defendant avers that said publication was made in good faith, and upon reliance on the official public reports of the police authorities of the city of New Orleans, and was substantially true and correct as to all the facts stated; that, in making the said publication, the defendant was carrying out its purpose of publishing legitimate news, upholding morality, and that it was not actuated by any other purpose."

Objections to testimony offered in support of these averments were also referred to the court, and they, together with the objections previously mentioned, were overruled, and there was judgment for the defendant.

The facts disclosed by the record are as follows, to-wit:

The plaintiff and Mrs. Behm are the proprietors of a grocery on the corner of First and Dryades streets in this city, which is conducted, mainly, in the name of Mrs. Behm, though the parties are equally interested, -- the purchases for the business being made indifferently in the name of either, and the financial management being, practically, under the exclusive control of the plaintiff. In a room, occupied as a sleeping apartment, immediately adjoining the store, there was an iron safe, in which, at the time of the occurrence out of which this suit arose, there were six or seven hundred dollars in money, together with some books and papers and a few articles of value other than money. Inside of the safe there were four compartments, or pigeon-holes, one above the other. In the upper compartment, or pigeon-hole, was an iron drawer, secured by a lock. In the next compartment, below, which measured, approximately, 3 1/2x5 1/2 inches in height and width by about six, or eight, inches in depth from front to rear, was a wooden drawer, without a lock, and below the compartment containing the wooden drawer were two other compartments of the same size; so that, the wooden drawer would as readily fit in the one as in the other. In the wooden drawer, upon the occasion in question, there were thirty-five or forty dollars in nickels. In the compartment next below, there was a roll of bills amounting to $ 500, and consisting of two or three one hundred dollar bills, and the rest in bills of the denominations of $ 20, $ 10, and $ 5. And in the lowest compartment, there was a bag of silver coin. On Sunday morning, February 11, 1900, the plaintiff arose early and opened the store, but, shortly afterwards, wishing to get change for a two-dollar bill, he went to the safe for that purpose. The morning was dark and rainy and the safe was unfavorably situated with respect even to the little light that penetrated the room; he, therefore, held a lamp in one hand while he adjusted the combination and opened the safe door with the other. When he had opened the door, he placed the lamp on the safe, took out the drawer containing the nickels and put it on the bed, and after taking from it the change that he needed, replaced the drawer, as he supposed, in the compartment from which he had taken it, closed the door of the safe and returned into the store. As a matter of fact, however, he had, by reason of the obscurity, mistaken the compartment and had put the drawer into the one which contained the $ 500 in bills, so that, when the drawer was pushed in and the door of the safe closed, some of the bills were shoved back and occupied the space between the rear end of the drawer and the rear end of the compartment and some of them were pressed down underneath the drawer. Later in the morning, about eight o'clock, it being then lighter, the plaintiff had occasion to go again to the safe, and, upon opening it, he missed the roll of paper money, and the fact that he had made the mistake as described not suggesting itself to his mind, he concluded that he had been robbed, which conclusion he at once communicated to Mrs. Behm, asking her, at the same time, whether she had taken the money. Upon her replying in the negative, he, immediately, telephoned to the police department and, after he had waited several hours and made several efforts in that direction, two detectives, Stubbs and DeRance, appeared upon the scene. Those officers inquired who had the combination of the safe and who had access to the premises, and, probably, made other pertinent inquiries; and the safe was opened and exhibited to them; but, whilst the wooden...