Farley v. McBride

• Decision Date: 08 June 1905
• Docket Number: 13,714
• Citation: 103 N.W. 1036,74 Neb. 49
• Parties: GEORGE L. FARLEY v. JOHN D. MCBRIDE
• Court: Nebraska Supreme Court

103 N.W. 1036

74 Neb. 49

GEORGE L. FARLEY v. JOHN D. MCBRIDE

No. 13,714

Supreme Court of Nebraska

June 8, 1905

ERROR to the district court for Cass county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

Byron Clark, A. L. Tidd and C. S. Polk, for plaintiff in error.

Samuel M. Chapman and Matthew Gering, contra.

LETTON C. AMES and OLDHAM, CC., concur.

OPINION

LETTON, C.

This is an action for libel. John D. McBride, plaintiff below, at the time of the publication of the alleged libel, was the sheriff of Cass county, and was at that time a candidate for reelection. The defendant below, George L. Farley, was the editor and publisher of the Evening News, a newspaper published at Plattsmouth, Nebraska. The publication which is complained of is as follows: "Question of Fees. The question of the sheriff's fees in the Shepard case has been under discussion on our streets for several days, and having gathered some information from the county records, and from parties more or less familiar with the particulars, the News has the following to offer:

"On the 18th day of April Shepard was complained against for daylight burglary with intent to steal. The next day (Sunday) Mr. McBride went to Malvern, Iowa, and arrested him. Besides fees, known or admitted to be legitimate, he charged $ 15 'mileage' and $ 18.50 'expense.' The legal fee for mileage for that distance is $ 2.30. The expense seems to be a fiction, created in the fertile mind of McBride himself. One item of this imaginary 'expense' is $ 1.50 hotel bill. Shepard was not taken to a hotel by McBride nor was he furnished any meals by him until the next day in the jail at the expense of the county. Mr. McBride, it appears, did not go to a hotel while in Malvern, but ate supper with deputy sheriff Bushnell of that town, on invitation, and even if he had done so the county would be under no obligation to pay the bill.

"Another item of expense is 'railroad fare for prisoner' $ 2.65. The C., B. & Q. railroad apparently took advantage of Mr. McBride's inexperience by charging him $ 1.96 too much, the regular fare being only 69 cents.

"Another item is $ 1.50 for 'livery.' This must be pure 'pad' as he hired no livery.

"Still another item is $ 1.50 for 'hack hire.' This, if paid at all, was for a hack in Plattsmouth. Shepard was put into a hack upon his arrival here, without request, and driven two blocks to the jail. Such kindness to a prisoner in the matter of hacks is quite unprecedented, and was a McBride invention both in kindness and expense.

"Shepard is charged with a daylight offense. Mr. McBride's transaction was a daylight effort, but here the parallel ends. Shepard is charged with 'evil intent' but got nothing. McBride received a nice little compensation which was paid by the taxpayers of the county. Shepard is now under bond, awaiting trial, and may be sent to the penitentiary while McBride is running for sheriff on his honesty and efficiency as a public official."

After the article was published, McBride wrote a letter to the defendant demanding a retraction, and attached to the letter an itemized statement and explanation of the fees and expenses charged in the return to the warrant for Shepard's arrest. A retraction was refused, and subsequently this action was brought. The defendant justifies the publication as a just criticism of the acts of a public official, asserts that it was made without malice, and that the charges made as to the collection of illegal fees and expenses are true.

It appears that the matter of the charges made by Mr. McBride as sheriff had been a matter of discussion before the publication of this article, and that the defendant had been advised by different attorneys that the charges made in the Shepard case for money paid to the deputy sheriff in Iowa and for expenses and mileage incurred outside of the state of Nebraska were illegal. It does not appear that any attempt was ever made by the defendant to ascertain whether or not the sheriff had actually paid out the money for expenses which he charged in his bill.

The evidence shows that in April, 1903, Shepard was accused of an attempt to perpetrate a daylight burglary at Weeping Water Nebraska; that upon information being given to the sheriff of the fact that such an attempt had been made, and that Shepard was suspected of being the criminal, he immediately took steps to ascertain his whereabouts, went to Auburn and Lincoln in the search for Shepard, and sent out directions to local peace officers in that vicinity to arrest and hold Shepard if within their reach; that under the direction and advice of the sheriff to a local deputy sheriff Shepard was found near Malvern, in the state of Iowa, and that on receipt of this...