Farley v. McBride

• Decision Date: 08 June 1905
• Citation: 74 Neb. 49,103 N.W. 1036
• Parties: FARLEY v. MCBRIDE.
• Court: Nebraska Supreme Court

74 Neb. 49

103 N.W. 1036

FARLEY

v.MCBRIDE.

Supreme Court of Nebraska.

June 8, 1905.

Syllabus by the Court.

1. The manner in which a public officer conducted the duties of his office is a fair subject for comment by the press when he is a candidate for re-election, and a newspaper is justified in calling the attention of the public to illegal charges made by him, as a reason why he should not again be chosen.

2. Where a newspaper states, in substance, that the sheriff of the county, who is a candidate for re-election, had obtained from the county a certain sum of money upon a false and “imaginary” account for expenses which he had never incurred, this is a charge of moral turpitude and dishonesty, and, if false, is libelous per se.

Commissioners' Opinion. Error to District Court, Cass County; Jessen, Judge.

Action by John D. McBride against George L. Farley. Judgment for plaintiff. Defendant brings error. Affirmed.Byron Clark, A. L. Tidd, and C. S. Polk, for plaintiff in error.

Matthew Gering and S. M. Chapman, for defendant in error.

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 re-election. The defendant below, George L. Farley, was the editor and publisher of the Evening News, a newspaper published at Plattsmouth, Neb. 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 $15.00 ‘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 Platts-mouth. 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, Neb.; 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...