Estelle v. Daily News Publishing Company

• Decision Date: 19 February 1916
• Docket Number: 18120
• Parties: LEE S. ESTELLE, APPELLEE, v. DAILY NEWS PUBLISHING COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

156 N.W. 645

99 Neb. 397

LEE S. ESTELLE, APPELLEE, v. DAILY NEWS PUBLISHING COMPANY ET AL., APPELLANTS

No. 18120

Supreme Court of Nebraska

February 19, 1916

APPEAL from the district court for Dodge county: CONRAD HOLLENBECK JUDGE. Reversed.

REVERSED.

Brown Baxter & Van Dusen, Elmer E. Thomas and I. J. Dunn, for appellants.

Mahoney & Kennedy and Dolezal & Johnson, contra.

SEDGWICK J. FAWCETT, J., LETTON, J., concurring. BARNES, J., MORRISSEY, C. J., HAMER, J., dissenting.

OPINION

SEDGWICK, J.

The plaintiff had held the office of judge of the district court for the fourth judicial district for about 15 years, and was a candidate for re-election. The defendant Fellman wrote an article in regard to the plaintiff's candidacy, and the defendant, the Daily News Publishing Company published the article in the Daily News, a newspaper published in Omaha. This action was begun by the plaintiff in the district court for Douglas county, and was transferred to the district court for Dodge county. The trial there resulted in a verdict for $ 25,000 damages and a judgment upon the verdict, from which the defendants have prosecuted separate appeals.

The article complained of was as follows: "I am opposed to the renomination of District Judge Lee S. Estelle because I believe he is for the special interests and against the people. I am opposed to his renomination because I believe he is for the third ward crowd and against their molestation. I am opposed to his renomination because, in common with many other Omaha citizens, I regard the Erdman case a mere 'frame-up' by the third ward crowd. Erdman's real offense as viewed by them was his interruption of their police protected carnival of crime. The witnesses for the prosecution were for the most part gamblers, bartenders and gay sports who consort with them. The testimony of their more reputable witnesses was swept away by men of such standing as Dr. Rigge of Creighton University and Professor Senter of the high school of Omaha. The first jury disagreed. The second jury returned a swift verdict of guilty in one, two, three order. Mr. J. W. Miller, educational director of the Y. M. C. A., was not allowed to sit on the jury. A single man of his type would have blocked the game. Judge Estelle, in the face of these facts, gave Erdman the full limit of the law--fifteen years. I am not indifferent to the peril of myself and to my little ones if I raise my voice against the cohabitation of the gamblers and the courts in the temple of justice, but that is a secondary matter to me. Judge Estelle ought to be defeated. I am appealing to decent republicans to defeat Estelle in the primaries Tuesday."

The defendants contend that the petition fails to state a cause of action. After their demurrers to this petition were overruled the defendants each filed separate motions to strike out parts of the petition. These motions related principally to the various innuendoes incorporated in the petition. They also complain that the court refused to give certain instructions requested by the defendants, and that certain instructions given by the court were erroneous. For the most part these criticisms in regard to the instructions depend upon the contention that the innuendoes should have been stricken from the petition, and that the petition does not state a cause of action. The publication was during the campaign for nomination in the primaries, and, as has been before stated, the plaintiff was a candidate for nomination. The defendant, Fellman was a citizen and voter of that judicial district, and was, in common with all other citizens, interested in the nomination and election. The communication was therefore what is commonly called a privileged communication, and must be construed in the light of that fact. One who publishes of a candidate for office a statement relating to the candidate's qualifications and fitness for the office is not liable in damages if the statement was true and was made with good motives and for justifiable ends, although such statement is libelous per se. If the statement is untrue in fact, the burden is upon the party who makes it to prove, not only that he in good faith believed the truth of the statement, but that he had evidence sufficient to justify a reasonable man in belief of its truth.

"The extent to which the cases go in relation to a candidate for a public office is that, where a person, knowing or believing that a candidate for public office is guilty of conduct affecting his fitness for the position, communicates that knowledge or belief to the electors whose support the candidate is seeking, the publisher, acting in good faith in the discharge of his duty to the public, may make such reasonable comments and give such information as comes to him from a reliable source, and which he believes to be true, for the purpose of informing the voters of the fitness of the candidate." Sheibley v. Huse, 75 Neb. 811, 821, 106 N.W. 1028.

But there is a corollary to this proposition. The principle has been stated in Neeb v. Hope, 111 Pa. 145, 2 A. 568, and quoted and adopted in Bee Publishing Co. v. Shields, 68 Neb. 750, 94 N.W. 1029: "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 public 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 cannot be justly and reasonably inferred from the conduct." Farley v. McBride, 74 Neb. 49, 103 N.W. 1036.

A defendant is not liable for publishing privileged communications unless there was actual malice on his part, and such malice must appear before there can be a recovery. If, however, the statements of fact published are libelous per se, proof that such statements were untrue is sufficient to cast the burden upon the defendant to prove that the evidence of the truth of the statements was such as would justify him in making them, and that he did so in good faith, believing them to be true. As an interested citizen, it was the right of the defendant to inform the voters of any well-grounded belief which he had as to the candidate's fitness for the office. "I am opposed to the renomination of District Judge Lee S. Estelle because I believe he is for the special interests and against the people" is a statement of opinion. Even if this statement would bear the construction that he believed the candidate was so much in favor of the special interests that he would intentionally favor them in any litigation before him, which would, of course, be misconduct in office, still, if the defendant so believed and such belief was well founded, or if he frankly stated the grounds of such belief and fairly submitted the matter to the voters, he would not be liable in damages.

The defendant's motion to strike out the innuendoes alleged in the amended petition was upon the ground that "each of the matters sought to be stricken is redundant, immaterial, and irrelevant, and for the further reason that the publication set out in plaintiff's petition is not capable of a double meaning, and is not capable of the meaning given to it by the innuendo allegations sought by this motion to be stricken from the petition," and was addressed separately to each innuendo alleged.

The first item of the publication and alleged innuendo was as follows: "I (meaning the said defendant Benjamin F. Fellman) am opposed to the renomination of District Judge Lee S. Estelle (meaning this plaintiff) because I (meaning the said defendant Benjamin F. Fellman) believe he is for the special interests (meaning thereby that, in the discharge of plaintiff's official duties as judge of said district court, plaintiff was prejudiced in favor of some litigants) and against the people (meaning thereby that, in the discharge of plaintiff's official duties as judge of the district court, this plaintiff, as such judge, exercised the functions of his office with partiality and favor contrary to law)."

In this clause of the published article the defendant stated his belief, and did not state as a fact that the plaintiff was "for the special interests and against the people." It could not be construed as intending to charge as a fact that "plaintiff was prejudiced against some litigants," or that he exercised his office as judge "with partiality and favor contrary to law."

The court instructed the jury: "If the jury believe from the evidence that said article meant what the plaintiff alleges it to mean and was false, and the plaintiff has suffered some damages thereby, then you should find in favor of the plaintiff and against both defendants such damages as you believe from the evidence the plaintiff has sustained. The law under such a state of facts would presume that plaintiff has suffered some damage." Also, other similar instructions. By the instruction above quoted it was submitted to the jury to find whether this language, as used by the defendant, should be construed as alleged in the innuendo. The jury must have supposed that the question for them to determine was whether the language charged as a fact that the plaintiff was or had been corrupt in his office. There was properly no such question for the jury upon the statement of the publication, and the jury should have been so instructed. The innuendo in connection with the second statement of the publication is of the same character. Allowing these innuendoes to remain in the petition, and instructing the jury that they were to find whether these statements meant what the innuendoes charged they...