Goolsby v. Forum Printing Co

• Decision Date: 22 March 1912
• Court: North Dakota Supreme Court

135 N.W. 661

23 N.D. 30

GOOLSBY v. FORUM PRINTING CO

Supreme Court of North Dakota

March 22, 1912

Appeal by defendant from a judgment of the District Court for Richland County, Frank P. Allen, J., and from an order denying a new trial in an action to recover damages for an alleged liability.

Affirmed.

Engerud Holt, & Frame, for appellant.

The retraction was full and fair, and, independently of the statute, entitled to consideration in mitigation of damages. White v. Sun Pub. Co. 164 Ind. 426, 73 N.E. 890; Taylor v. Hearst, 107 Cal. 262, 40 P. 392.

Wolfe & Schneller, for respondent.

The retraction published was not full and fair. Palmer v Mahin, 57 C. C. A. 41, 120 F. 737; Gray v. Minnesota Tribune Co. 81 Minn. 333, 84 N.W. 113; Hotchkiss v Oliphant, 2 Hill, 510.

OPINION

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, § 8889, Rev. Codes 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 and fairly trampling the life out of Polaski. The injured man was removed to his home, and died yesterday from concussion of the brain. He leaves a wife and large family almost penniless, as he had only been in the United States two months.

"Goolsby is in jail at Forman, the county seat. Mob violence is threatened."

The alleged retraction was as follows:

"There was no Hamlin Crime.

"Sensational story from Milnor about an alleged killing at Hamlin was unfounded--Goolsby's hands not red with gore. In the Forum July 11, there was an article under a Milnor date line,...