Black v. Nashville Banner Pub. Co.
| Decision Date | 02 December 1939 |
| Citation | 141 S.W.2d 908 |
| Parties | BLACK v. NASHVILLE BANNER PUB. CO. |
| Court | Tennessee Supreme Court |
Norman Farrell and Jack Keefe, both of Nashville, for plaintiff in error Black.
Douglas & Douglas, of Nashville, for defendant in error Nashville Banner Pub. Co.
This is a libel action, based upon the publication of a newspaper article in the Nashville Banner.
The headline of the article was: "Coal Dealer Fined for Giving Short Weights." The body of the article states that Black was fined for failure to deliver a ticket showing the weight of coal delivered to a customer, in accordance with a city ordinance, but was acquitted of a charge of giving short weights of coal.
The article in full is as follows:
On the publication of the article, Black called the publisher of the Banner and explained to him that he had not been fined for giving short weight of coal. Several days later the following article was published in the Banner:
Black instituted this suit to recover damages for the injury inflicted by the first publication.
It was averred in his declaration that the defendant Banner published the article hereinabove quoted, which was an untrue report of a court proceeding and not privileged, with malice, to his damage; that it was false and untrue that he had been found guilty in the City Court and fined for giving short weights in the sale of coal; that the statement that "Tom Webb, assistant city sealer of weights and measures, said he had been weighing Black's coal for two years and has yet to find him giving full weight" was not made by Webb in the course of the trial and was not privileged.
It was further averred that if he made such statement out of court it was false and untrue and the publication of it was a libel.
The defendant filed seven pleas: (1) Not guilty. (2) Failure to aver special damages. (3) and (4) Publication privileged. (5) Statement made by Webb as a witness in court, privileged. (6) Publication of statement made by Webb in his official capacity, qualified privilege. (7) In the seventh plea it was averred that it was true that Black had been fined in the City Court for failure to issue a ticket to a customer showing the amount of coal delivered, and that Tom Webb, Assistant City Sealer of Weights and Measures, said and testified at the hearing that he had been weighing Black's coal for two years, and had yet to find him giving full weight; that Black had been charged with giving short weights, but was acquitted of this charge; and that the entire publication when read and construed together says and means, in substance, the foregoing. And defendant pleaded "special justification in truth of the words and publication herein referred to." This plea was amended to add that it was true that Webb had always found Black giving short weights and so testified at the hearing.
The plaintiff filed demurrers to the pleas, all of which were overruled except the demurrer to the second plea, which was sustained.
On the hearing the publication of the foregoing article was proved by Black. On his counsel's asking him what the charges against him in the City Court were, the defendant objected to parol testimony, insisting that the record was the best evidence, which objection was sustained by the court. Counsel for the defendant then stated to the court that he had discovered for the first time two or three days before the trial what this record showed.
Defendant's counsel then produced certified copies of two warrants against Black — one charging him with giving short weights of coal, on the back of which was written "Fined $25.00"; and the second, charging him with failing to deliver weight ticket showing the amount of coal delivered, on the back of which was written "Dismissed." The trial judge held that they were the best evidence and ordered that they be introduced.
Mr. Farrell said: "Do you understand we are putting that in, Your Honor?"
Mr. Lee Douglas: "We are not putting them in."
The Court:
They were then introduced and marked filed as Exhibits C and D to Black's testimony, without objection.
The plaintiff thereupon undertook to testify that the certified copies were wrong and were just the opposite of what actually happened at the trial, but, on objection of the defendant, the trial judge ruled that the judgments could not be thus collaterally attacked.
The defendant then moved the court for peremptory instructions in its favor on the ground that the published article was a correct report of a judicial proceeding and therefore privileged, which motion was overruled. But it did not amend its pleas. In fact it was not necessary to amend its pleading, as it may set up privilege under the general issue. 37 C. J. 58, § 421; Cooley v. Galyon, 109 Tenn. 1, 70 S.W. 607, 60 L.R.A. 139, 97 Am.St. Rep. 823; Dunn v. Winters, 2 Humph. 512; Shadden v. McElwee, 86 Tenn. 146, 148, 5 S.W. 602, 6 Am.St.Rep. 821.
The following evidence for the plaintiff was then introduced.
Andrew Tanner, who was Black's attorney at the trial in the City Court, was introduced as a witness by the plaintiff and testified that Black was acquitted of the charge of giving short weight but fined for failure to deliver a weight ticket, and that he so informed the reporters; that Tom Webb did not testify as charged; and that the copies of the warrants introduced (to the effect that he was fined on the charge of short weight and acquitted on the charge of not issuing ticket showing the weight) do not show what actually happened at the trial.
This evidence was admitted for the time being over objection.
Judge Guild Smith, City Judge, testified that the two cases against Black were tried before him and that he dismissed the short weight charge and imposed a fine on the ticket charge, but his dockets were entered as hereinabove shown, from which the clerk made the entry on the warrants. The testimony of this witness was objected to and sustained by the court.
Thereupon the defendant moved the court for peremptory instructions in its favor, which motion was overruled.
Tom Webb testified for the defendant that he had testified in the City Court that he had been weighing Black's coal for two years and had yet to find him giving full weight, and he testified to weights as found on the different inspections according to his books.
George Langham and Jack Ambrose testified to the same effect.
Three witnesses testified in rebuttal, for the plaintiff — one testified that he heard Webb testify as charged; one, that he did not hear him so testify; and the third, that he heard Webb make this statement to reporters after the trial.
Webb testified that his statement about Black's short weights of coal was true. Black had testified that it was untrue.
At the conclusion of all the evidence the defendant again moved the court for per emptory instructions in its favor on the ground that there was no evidence to support a verdict, and moved the court to exclude the testimony attempting to impeach the record of the City Court.
The court withdrew from the jury the question as to whether the published report of the City Court proceedings was privileged, stating that the docket and warrants were the best evidence of these proceedings, and that they established the fact that the Banner's report was correct. He did not expressly exclude the...
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