Goolsby v. Forum Printing Co.

• Decision Date: 22 March 1912
• Parties: GOOLSBY v. FORUM PRINTING CO.
• Court: North Dakota Supreme Court

23 N.D. 30

135 N.W. 661

GOOLSBY

v.FORUM PRINTING CO.

Supreme Court of North Dakota.

March 22, 1912.

Syllabus by the Court.

Defendant published a libel of and concerning plaintiff, and in an action to recover resulting damages defendant, among other defenses, relied upon an alleged retraction publishedpursuant to section 8889, R. C. 1905. The libelous article was published in good faith, without malice, and at plaintiff's request the jury was restricted to actual damages resulting to plaintiff's reputation by the publication complained of.

Held, that defendant is not entitled to rely on section 8889, for the reason that its alleged retraction was not a full and fair retraction of the libelous article.

Certain assignments of error based on alleged erroneous instructions to the jury and on alleged errors in the admission of testimony, and also on alleged misconduct of counsel in argument, examined, and held without substantial merit.

Appeal from District Court, Richland County; Frank P. Allen, Judge.

Action by George Goolsby against the Forum Printing Company. Judgment for plaintiff, and from an order denying a new trial defendant appeals. Affirmed.

Engerud, Holt & Frame, of Fargo, for appellant. Wolfe & Schneller, of Wahpeton, for respondent.

PER CURIAM.

Action to recover damages for libel; the complaint alleging that defendant libeled plaintiff by publishing a defamatory article concerning him in its newspaper. The answer admits that it published the article as alleged, and that the same was false, but alleges that it made a full and fair retraction within three days after its falsity was discovered, and that there was no malice in its publication. A verdict was directed for plaintiff, leaving the assessment of damages to the jury, which damages were assessed at $500. Judgment was entered on the verdict, and from such judgment and from an order denying defendant's motion for a new trial, defendant appeals.

Appellant urges several grounds for reversal, which will be briefly noticed.

It is first insisted that the court erred in granting plaintiff's motion for a directed verdict. At the request or suggestion of plaintiff's counsel, the court eliminated from the consideration all damages except compensatory damages for alleged injury to the reputation of the plaintiff by the publication complained of. It is appellant's contention that no damages were recoverable because of the retraction. On the contrary, respondent contends, among other things, that the alleged retraction was not a full and fair retraction, such as the statute (section 8889, R. C. 1905) required. Said statute is as follows: “Before any suit for libel can be brought against a newspaper, other than a libel of, or concerning a female, the party aggrieved must, at least three days before filing his complaint, serve notice on the publisher of such newspaper at the principal office of its publication, specifying the statement alleged to be false and defamatory, and then if on the trial it appears that the article was published in good faith, and its falsity was due to a misapprehension in regard to the facts, and a full and fair retraction of the erroneous statement was published in the next issue of the paper, or in the case of a daily paper within three days after the mistake was brought to the attention of the publisher, in as conspicuous a place and type as the original article, the plaintiff will be entitled to recover only such damage as he can show he has sustained to his property, business, trade, profession or occupation. But if the libel is against a candidate for office, the retraction must also be made editorially, and in the case of a daily paper at least three days, and in the case of a weekly paper, at least ten days before the election.”

The libelous article as published was as follows:

“Blind Pigger's Frightful Crime.

Ran Amuck at Geneseo and Killed One Man.

Milnor, N. D., July 11. Martin Polaski, a blacksmith, who lived at Geneseo, was killed by George Goolsby, a ruffian who was running a blind pig at the Fourth of July celebration at Hamlin.

Goolsby ran amuck, injuring several persons...