Fullerton v. Thompson

• Decision Date: 10 October 1913
• Docket Number: 18,108 - (241)
• Parties: W. S. FULLERTON v. GEORGE THOMPSON and Another
• Court: Minnesota Supreme Court

143 N.W. 260

123 Minn. 136

W. S. FULLERTON v. GEORGE THOMPSON and Another

Nos. 18,108 - (241)

Supreme Court of Minnesota

October 10, 1913

Action in the district court for Ramsey county against George Thompson and the Dispatch Printing Co. to recover $15,000 for libel. The answer alleged that the article published was a fair and true report of the official examination and report of the public examiner of the accounts of the Board of State Medical Examiners and of the records and documents therein referred to; that the article was not intended to charge and did not charge plaintiff, either alone or with anybody else with larceny; nor was meant to charge and did not charge that plaintiff, either alone or with anyone else, had unlawfully converted $6,000 or any other sum of the moneys belonging to the state to his private purposes; and that the article as published was true. The reply denied that the public examiner, in person or by deputy, made an official examination or report of the accounts of the board, but admitted that a deputy public examiner made an unofficial report of an unofficial examination. It also denied that the article was a fair comment upon such report and denied that the comment was made, honestly believing the article to be true, and denied that the article published was true. The case was tried before Kelly, J., who denied the motion of defendants to dismiss the action and their motion to direct a verdict in their favor, and a jury which returned a verdict of $700 in favor of plaintiff. From the order denying defendants' motion for judgment notwithstanding the verdict and granting their motion for a new trial, unless plaintiff consented to a reduction of the verdict to $350 they appealed. Affirmed.

SYLLABUS

Libel.

1. A publication, which purports to convey the meaning that a public official in an official report has charged a public servant with misconduct in office, is libelous if not true in substance.

Libel -- privileged publication.

2. The trial court held the occasion for the publication privileged. He rightly left the jury to say whether the publication exceeded the privilege, for, considering the title and headlines of the article, and comparing its contents with the report it purports to give and discuss, it cannot be said as a matter of law that it is a true resume thereof. To be protected as privileged the publication must be true in substance.

Fair comment upon public officer.

3. Neither can it be held as a matter of law that the publication was excused as a fair comment upon official conduct, honestly made in belief of the truth thereof and upon reasonable grounds for such belief. If the jury find the publication as to the report substantially distorted or untrue, it might justify the conclusion that the comments thereon were neither fair nor made in good faith.

Any member of board may sue for libel.

4. If the jury found the publication libelous, plaintiff can maintain the suit, for it appears clearly that each member of the board referred to in the publication participated in the alleged misconduct.

Durment, Moore & Oppenheimer, for appellants.

W. R. Duxbury, for respondent.

OPINION

HOLT, J.

Plaintiff recovered a verdict of $700 for libel. Defendants moved for judgment notwithstanding the verdict or a new trial. The court denied the judgment asked, but granted a new trial unless plaintiff consented to a reduction of the verdict to $350. Plaintiff has not consented to the reduction, and defendants appeal.

The article complained of was published by defendants in the St. Paul Dispatch, a daily newspaper, on May 21, 1912. It was written by a reporter in the employ of the defendant company, except the so-called headings. These latter were interspersed in large type, presumably to attract attention, and were prepared under the direction of the city editor of the paper. The article with the headings in capitals is as follows:

"USE STATE CASH TO BUY DINNERS.

"EXAMINER SAYS MEDICAL BOARD HAS IGNORED AN ORDER TO RETURN FEES.

"SUM INVOLVED ALMOST $6,000.

"MEALS, CIGARS AND TAXICABS HAVE BEEN CHARGED TO STATE BY MEMBERS OF BOARD.

"Reveling in $20 dinners, smoking choice Havana cigars, riding in taxicabs and 'splitting up' practically all the money that has come into its hands, the State Board of Medical Examiners has spent nearly $6,000 since May 1, 1910, which rightfully belongs to the state, according to charges made by Andrew Fritz, state public examiner, in a report made to the Governor to-day.

"While he makes no direct accusation, Mr. Fritz points to an opinion given by Lyndon A. Smith, Assistant Attorney General, in 1910, in which he said that the 'reciprocal fees' of $50 each, collected by the board, should be turned into the state treasury. Since the opinion was given, the board has collected and kept $6,110, less $985.86 now on hand.

"ATTORNEY GENERAL'S VIEWS IGNORED.

"'Reciprocal fees' come from physicians, who, having obtained license to practice in other states, come to Minnesota and are admitted to practice here without further examination, on payment of the $50 fee. Former Public Examiner Anton Schaefer could find no law giving the board of medical examiners a right to keep the fees, and asked the attorney general's department for an opinion. Replying, Mr. Smith said the money belonged to the state, and should be paid into the treasury. The letter was dated June 8, 1910. The board ignored it, and has continued to keep the money.

"STATE BUYS MEALS AND CIGARS.

"Examination of the records kept by the board reveals some interesting charges for expense. For instance, in August, 1911, a dinner was given by the board to its members which cost $20.25. At the meeting of the board to discuss business matters, $3.75 worth of cigars were smoked. In July W. S. Fullerton drew salary amounting to $100 and $107.85 for attending a board meeting. The bill for dinner in May, 1911, amounted to $14.65; in June to $20.25; in November to $16, and in February, 1912, to $14.90 with $4.50 for cigars.

"TAXICAB CHARGED TO STATE, TOO.

"On November 1, 1910, W. S. Fullerton was given a salary increase of $25 a month for the ten months which had just preceded, and he drew $250 in a lump. At the same meeting at which he was allowed the money, a charge of $4.75 was ordered paid to R. A. Becker & Son for 'cigars, etc.' A charge of $6 for taxicab service was recorded at the July meeting, 1910.

"Charges for attending board meetings usually hovered near the $50 mark, but in many instances went nearer to $100. The following are the regular account charges allowed by the board, according to the public examiner's report:

"Examining papers, each

$1.00

"Attending board meetings, per day

20.00

"Conducting examinations, for each half day

5.00

"Committee meetings

10.00

"Translating examination papers

15.00

"DOES NOT ACCUSE BOARD.

"After recommending that all fees collected by the board be paid into the state treasury and that payments to the board members be then made by regular vouchers, presented to the state auditor, the report of John Swinborne, who made the examination for Mr. Fritz, concludes: 'The tendency of the board and all boards of like nature is to be extravagant.' Mr. Swinborne says the present board is merely following precedent and does not accuse its members of intentionally doing wrong.

"Public Examiner Fritz said today he would go deeper into the probe of the acts of the medical board of examiners, and it is possible that suit may be instituted against them to get back the money which the attorney general says belongs to the state.

"The members of the present board of medical examiners are J. W. Anderson, Mankato, Minn., President; Frank B. Hicks, Grand Marais, vice president; Thomas McDavitt, St. Paul, secretary-treasurer; J. E. Campbell, South St. Paul; F. R. Weiser, Windom; Charles Bolsta, Ortonville; A. C. Moffat, Howard Lake; Annah Hurd, Minneapolis, and R. D. Matchan, Minneapolis."

Since plaintiff has not consented to the reduction required by the court, the motion of the defendants for a new trial has in effect been granted, and therefore the only question upon this appeal is the right of defendants to a directed verdict or judgment in their favor. Their contentions are: (a) The article is not libelous, (b) the occasion was privileged and the publication is excused as a fair criticism of public servants, (c) the truth was proven, and (d) the plaintiff individually has no cause of action, the accusation being against a board.

Plaintiff alleged that the publication accused him of larceny or conversion of state funds. This defendants specifically deny in the answer which admits the publication and by way of justification and excuse alleges: That the state public examiner had made an official examination and report of the affairs and accounts of the state board of medical examiners that this report related to public matters in which all citizens were interested; that after examining this report the article was composed and published in the honest belief that it...