Coleman v. MacLennan

• Decision Date: 07 November 1908
• Docket Number: 15,335
• Parties: C. C. COLEMAN v. F. P. MACLENNAN
• Court: Kansas Supreme Court

98 P. 281

78 Kan. 711

C. C. COLEMAN v. F. P. MACLENNAN

No. 15,335

Supreme Court of Kansas

November 7, 1908

Decided July, 1908.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIBEL--Newspaper Comment--Official Conduct and Character--Privileged Matter. If the publisher of a newspaper circulated throughout the state publish an article reciting facts and making comment relating to the official conduct and character of a state officer, who is a candidate for reelection, for the sole purpose of giving to the people of the state what he honestly believes to be true information, and for the sole purpose of enabling the voters to cast their ballots more intelligently, and the whole thing is done in good faith, the publication is privileged although the matters contained in the article may be untrue in fact and derogatory to the character of the candidate.

2. LIBEL--Candidate for State Office--Publication Outside the State. Generally, publication should be no wider than the moral or social duty to publish. If it be designedly or unnecessarily or negligently excessive, privilege is lost. But if a state newspaper published primarily for a state constituency have a small circulation elsewhere, it is not deprived of its privilege in the discussion of subjects of state-wide concern because of that fact.

3. PRACTICE, SUPREME COURT--Instruction Rendered Inconsequential by Special Findings. If on the trial of a suit for libel the jury should find specially from the evidence that the plaintiff suffered no damages from the publication complained of, it will not be presumed that the finding was induced by instructions regarding particular questions in the case not related to that of damages; and the question whether such instructions misstate the law becomes immaterial, because they could not affect the plaintiff's substantial rights.

Frank L. Williams, Charles Blood Smith, and John E. Hessin, for plaintiff in error.

W. P. Hackney, Waters & Waters, and B. P. Waggener, for defendant in error.

OPINION

BURCH, J.:

In August, 1904, the plaintiff held the office of attorney-general of the state, and was a candidate for reelection at the general election which occurred in the following November. By virtue of his office he was a member of the commission charged with the management and control of the state school fund. The defendant was the owner and publisher of The Topeka State Journal, a newspaper published at Topeka and circulated both within and without the state. In the issue of August 20, 1904, appeared an article purporting to state facts relating to the plaintiff's official conduct in connection with a school-fund transaction, making comment upon them and drawing inferences from them. Deeming the article to be libelous the plaintiff brought an action for damages against the defendant, alleging that the matter published concerning him was false and defamatory and that its publication was the fruit of malice. Among other defenses the defendant pleaded facts which he claimed rendered the article and its publication privileged.

At the trial instructions presenting the plaintiff's view of the law of privilege were refused, and the following instruction was given to the jury instead:

"As you have already observed from the statement of the case, defendant claims, as his first defense, that the publication is what is known in law as 'privileged.' A communication made in good faith, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged. And where an article is published and circulated among voters for the sole purpose of giving what the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article. If you believe then from the evidence in this case that on August 20, 1904, plaintiff was a candidate for reelection to the office of attorney-general, and that defendant published said article for the sole purpose of giving to the voters of Kansas what he believed to be truthful information concerning the acts of the attorney-general, and only for the purpose of enabling such voters to cast their ballots more intelligently, and that the defendant made all reasonable effort to ascertain the facts before publishing the same, and that the whole thing was done in good faith and without malice toward plaintiff, and if you believe that the bulk of the circulation of the said paper was within the state of Kansas and that its circulation outside of the state of Kansas was only incidental, then I instruct you that your verdict must be for the defendant, although you may believe the principal matters contained in said article untrue in fact and derogatory to the character of the plaintiff. But on the contrary, if you should find from the evidence that said article was published with a malicious intent to wilfully wrong and injure plaintiff, then the fact that the article is a privileged one would constitute no defense to this action, and the plaintiff would be entitled to recover such damages as the evidence shows him to have sustained by reason of said publication."

In the course of the trial it became material whether the purchasable quality of county bonds offered to the school fund may be predicated upon the equalized valuation of property instead of its assessed valuation, and whether certain manipulations of the public funds in the state treasury were contrary to law. It likewise became necessary for the court to give the jury a definition of a conspiracy, and to apply the definition to the facts of the case. Instructions tendered by the plaintiff upon these subjects were refused, and exceptions were saved to those given. The following instruction asked by the plaintiff was refused and an exception noted:

"The court instructs you that even though you should believe from all the evidence in this case, if you do so believe it, that the publication of the article as alleged in plaintiff's petition was privileged and justifiable within the limits of the state of Kansas, yet I instruct you that under the evidence and the pleadings in this case the publication of such article outside of, and beyond the limits of, the state of Kansas is neither privileged nor justifiable; and, if you believe from the evidence that publication of said article was made outside of, and beyond the limits of, the state of Kansas by the circulation of any number of copies of The Topeka State Journal containing said article, the plaintiff in this action is entitled to recover damages for such publication beyond the boundaries and limits of the state of Kansas."

No exception was taken to the following instruction relating to the subject of damages:

"In case you find for the plaintiff, the next question for you to determine is the amount of recovery. In this there is no mathematical rule that the court can give you as a guide. You will assess his damages in such sum as will compensate him for all damages he has sustained as a necessary and natural result of the publication of the article charged, and in arriving at this you should consider the injury, if any, to his feelings and his reputation, and the humiliation, if any, caused by such publication, and the injury, if any, to his business and profession. If you find that the article was published maliciously, as hereinbefore defined, you may then, if you see fit, assess damages, called 'punitive damages,' in addition by way of smart-money or punishment to the defendant for having published the article in question, and for the purpose of setting a wholesome example to others. I further instruct you that punitive damages may not be recovered by the plaintiff, nor allowed by you in your verdict, unless you shall first find that the plaintiff is entitled to recover actual damages in some amount."

Many special questions were submitted to the jury, among which were the following, the answers returned being appended:

"(1) Ques. Does the testimony show that the plaintiff sustained any actual damage by the publication of this article mentioned in his petition? Ans. It does not.

"(2) Q. If you answer the foregoing question in the affirmative, then state in detail of what such actual damage consists. A. ."

"(52) Q. On the 20th day of August, 1904, when said article complained of was published, did said defendant, or any of his employees, have any actual malice of or against the said plaintiff? A. No."

The jury found generally for the defendant. A motion for a new trial was denied, and the plaintiff prosecutes error.

The plaintiff claims that the court committed grievous error in its instructions to the jury and by refusing to instruct according to the plaintiff's requests, the instruction upon the subject of privilege being attacked with especial fervency. To this claim the defendant makes two answers First, that the instructions given state the law, and, second, that even if error was committed in giving and refusing instructions it has become inconsequential in view of the special finding that the plaintiff suffered no damage from the publication of the article which occasioned the suit. The plaintiff replies that the finding...