Dennison v. Daily News Publishing Company

• Decision Date: 19 November 1908
• Docket Number: 15,262
• Parties: THOMAS DENNISON, APPELLEE, v. DAILY NEWS PUBLISHING COMPANY, APPELLANT
• Court: Nebraska Supreme Court

118 N.W. 568

82 Neb. 675

THOMAS DENNISON, APPELLEE, v. DAILY NEWS PUBLISHING COMPANY, APPELLANT

No. 15,262

Supreme Court of Nebraska

November 19, 1908

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed.

REVERSED.

J. H Van Dusen and Irving F. Baxter, for appellant.

W. J Connell, contra.

EPPERSON, C. CALKINS, C., concurs. DUFFIE and FAWCETT, CC., not sitting.

OPINION

EPPERSON, C.

On the night of November 22, 1904, in the city of Omaha, the home of Elmer E. Thomas, attorney for the civic federation, while it was occupied by himself and his family, was partially wrecked by the explosion of a dynamite bomb, brought about by some person unknown, with the probable intention of murdering said Thomas. On November 26, 1904, the defendant herein published in the Omaha Daily News an address delivered by Mr. Thomas at a mass meeting of citizens of Omaha, which, with unimportant matters omitted, is as follows: "When I began this fight as attorney for the civic federation, I saw at the outset a man who stood across the path of good government in this city. It was necessary that this man be driven out of the city. It is because of the fight made on that man that my family has been placed in jeopardy of their lives. When Richard L. Metcalf, editor of the World-Herald, opposed the selection of a certain chief of police, this man hired a slugger to dog his footsteps. Whenever Mr. Metcalf and his family went out at night this thug followed him for the purpose of intimidating his wife and family. A few years ago Walter Moise, a saloon-keeper, offended this same man, and a convict, Al Green, now in the Missouri penitentiary, says this person offered him $ 5,000 to kill Moise. County Attorney Shields offended this same individual, and a convict in the Iowa penitentiary says he offered $ 3,000 to dynamite Shield's house. It is important that the unholy alliance between the officials and this man be broken up. The police can scour the cornfields, run down the long and short man, or the glass-eyed man, search the cellars of respected citizens, but when we say, 'Here is the man who knows who did it,' we can get nothing done. Who threw the bomb? This man either threw that bomb, hired some one to throw it, or knows who did it. He has educated and sent out more thieves than any other man in the country. He has the reputation among great detective agencies of being one of the greatest criminals in the United States, and yet he is harbored here." This action was instituted by the plaintiff, who alleged that he is the individual referred to in the speech of Elmer E. Thomas, published as aforesaid, that said publication is libelous, and sought to recover general damages in the sum of $ 50,000. A judgment of seven thousand five hundred dollars was obtained in the court below, and defendant has appealed.

1. Upon trial the plaintiff was permitted over objection to testify that Elmer E. Thomas, who uttered the words reproduced in the alleged libelous article, had appeared as an attorney against the plaintiff in certain prosecutions pending against the latter in Iowa, and also in proceedings in this state for the extradition of plaintiff. Such actions were pending at the time the Thomas speech was made and published. We find no error in the admission of this testimony. Evidence showing the relations existing between the plaintiff and the author of the alleged libelous utterance is proper for the purpose of showing that the article referred to the plaintiff, when his name is not mentioned therein, and the pleadings do not admit that he is the party referred to. Some of the testimony in this regard, however, was otherwise incompetent. For instance, plaintiff testified: "He (meaning Thomas) had been over in Harrison county, Iowa, and had the assistance of a man out of the penitentiary; * * * had me indicted over there on two charges." These are but the conclusions of the witness, and probably would have been stricken from the record had defendant requested it.

2. The plaintiff testified that he had first read the libelous article while absent from his home. Over objections he was further permitted to testify as follows: "Where again do you say you saw it? A. At home. Q. Under what conditions as affecting your mental condition or causing you pain or anguish of mind? A. My wife had it, and was reading it and was crying." Defendant moved to strike out the last answer of the witness as incompetent, irrelevant and immaterial. The motion was overruled. "Q. And did that condition affect you as far as the pain and anguish of mind is concerned? A. That worried me all of the time. The worry was so I could not eat or sleep as I used to." A motion to strike out this last quoted answer was also overruled. It is not contended by the plaintiff that he is entitled to recover for the suffering endured by his wife, but it is urged that the testimony is admissible to show that his suffering was greater because of the grief which the publication caused her. In actions for libel or slander plaintiff is entitled to prove that he has a family and of whom it consists. Such evidence bears directly upon the question of damage. Cahill v. Murphy, 94 Cal. 29, 28 Am. St. Rep. 88, 30 P. 195; Enos v. Enos, 135 N.Y. 609, 32 N.E. 123; Klumph v. Dunn, 66 Pa. 141. Enquirer Co. v. Johnston, 72 F. 443. It shows, in part, his position in society. Such evidence is admissible for the purpose of proving that the plaintiff has a family, whose disgrace, shame, or humiliation by reason of the libel increases his mental suffering. In Cahill v. Murphy, supra, it was held: "Mental suffering is an element for which damages may be recovered in an action for slander, and such suffering may be increased, and the damages consequently enhanced, by the fact that the members of the plaintiff's family suffer by reason of the disgrace visited upon him or her by the slanderous charge." Evidence that plaintiff was a married man is admissible, as held in Morey v. Morning Journal Ass'n, 20 Am. St. Rep. 730 (123 N.Y. 207, 25 N.E. 161), "as bearing upon the hurtful tendency of the libel and the general damage to which he was exposed." There can be no doubt but that the fact that one libeled has a family is an important circumstance which bears upon the question of damages, and this is so because the members of the family suffer by reason of the disgrace visited upon the father and husband. For it is apparent that not only is the finger of scorn, ridicule, disgrace and shame pointed to the father, but also is directed toward the family; and, because of this fact, his damage is the greater and his mental suffering accordingly increased. But we do not understand that the mental suffering experienced by the members of his family, nor the effect thereof upon him, can be taken into consideration for the purpose of enhancing the damages which he is entitled to recover. The mental suffering for which one libeled may recover must be the direct, immediate and proximate effect of the publication. Such mental suffering, therefore, must be that which the plaintiff experienced because the libelous article exposed him to public hatred, contempt or ridicule. Upon thorough research we are unable to find where the competency of such evidence has ever been adjudicated. The above cited cases do not go to this extent. The only case bearing on the question considered which we have been able to find is Flam v. Lee, 116 Iowa 289, 90 N.W. 70, wherein it is held: "In an action for malicious prosecution it was not error to permit plaintiff to show that on his arrest at his home his mother fainted or was prostrated by the shock, and that plaintiff thereby suffered distress of mind." The reasons for the rule are given in the opinion as follows: "But the principal basis of recovery in most actions of this kind is mental suffering and anguish arising from the wrongful charge and arrest, and, if the arrest be made in the presence of one's family or friends, bringing him into shame and humiliation before them, it is a proper matter to be considered as bearing upon the pain inflicted upon him. If, then, in addition to the indignity of his arrest, he sees, as the effect of such act, his wife or mother fall in...