Greenwood v. Cobbey

• Decision Date: 16 May 1889
• Citation: 42 N.W. 413,26 Neb. 449
• Parties: HORACE A. GREENWOOD, PLAINTIFF IN ERROR, v. THOMAS D. COBBEY, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

42 N.W. 413

26 Neb. 449

HORACE A. GREENWOOD, PLAINTIFF IN ERROR, v. THOMAS D. COBBEY, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 16, 1889

ERROR to the district court for Gage county. Tried below before BROADY, J.

REVERSED AND REMANDED.

L. W Colby, and Chas. O. Whedon, for plaintiff in error, cited Garr v. Selden, 4 N.Y. 91; Teall v. Felton, 1 N.Y. 547; South v. The State of Maryland, 18 How. (U. S.) 403; Haggart's Trustees v. Lord President, 2 Shaw, Scotch App. 134; Yates v. Lansing, 5 Johns. 282; Randall v. Brigham, 7 Wall. 523; Gray v. Pentland, 2 S. & R. 23; Larkin v Noonan, 19 Wis. 83; Mayo v. Sample, 18 Iowa 306.

J. E. Bush, and J. E. Cobbey, for defendant in error, cited: King v. Root, 4 Wend. 113; S. C. 21 Am. Dec. 109; White v. Nichols, 3 How. (U. S.) 266; Palmer v. Concord, 48 N.H. 217; Pierce v. Oard, 23 Neb. 828; Ellsworth v. Hayes, 37 N.W. 252 (Wis.) ; 4 Wait's Act. & Def. 305; Cooley on Torts, 211 to 216; Howard v. Thompson, 21 Wend. (N. Y.) 319; Fawcett v. Charles, 13 Id. 473; Elam v. Badger, 23 Ill. 498; Wyatt v. Buell, 47 Cal. 624; Bourreseau v. Detroit, 30 N.W. 376 (Mich.) .

OPINION

MAXWELL, J.

The defendant in error brought an action against the plaintiff in error in the district court of Gage county, to recover damages for slander, and on the trial obtained a verdict for $ 1,500, and a motion for a new trial having been overruled, judgment was entered on the verdict.

There are three counts in the petition.

In the first and second counts the slanderous words are alleged to have been spoken on the 27th day of July, 1887. The charges in each of these counts need not be referred to, as for reasons which will presently be stated, there must be a new trial. In the third count, the words complained of are alleged to have been spoken on the 28th of July, 1887. The plaintiff in error objected to the third count as not stating a cause of action. This objection was strongly insisted upon in the court below and the overruling of the same is now assigned for error. The count is as follows: "The plaintiff for a third cause of action complains of the defendant for that on the 28th day of July, 1887, and at divers other times, in the county of Gage and state of Nebraska, the defendant then and there being the mayor of the city of Wymore, in said Gage county, Nebraska, and this plaintiff being then and there the duly elected, qualified, and acting, city attorney of the city of Wymore, aforesaid, said defendant wickedly, maliciously, and knowingly, intending to injure, degrade, and defame this plaintiff, as such officer and city attorney, in a certain discourse, which he, the defendant, then and there had of and concerning this plaintiff as such city attorney, at a public meeting of the city council of said city of Wymore, and in the presence and hearing of a large number of people, falsely, wickedly, maliciously, and knowingly, did speak and publish the following false and defamatory words, that is to say: 'He [meaning this plaintiff] is unfit to hold the office of city attorney; his opinion is too easily warped for a money consideration.' Whereby and by means of which false and defamatory words, this plaintiff has been greatly injured in his good name as such officer, to his damage in the sum of five thousand dollars."

At the time indicated, Wymore was a city of the second class, having more than one thousand and less than twenty-five thousand inhabitants, and was governed by the provisions of article I, chapter 14, Compiled Statutes. The plaintiff in error was mayor of said city, and the defendant in error, city attorney thereof. Section 6 of the chapter aforesaid provides that: "At the time of holding the general city election in each year, there shall be elected a mayor, a clerk, a treasurer, a city engineer, and the councilmen hereinbefore provided for; and a police judge shall be elected at each biennial city election; and the mayor with the consent of the council may appoint a city attorney, and an overseer of streets, who shall hold their offices for one year unless sooner removed by the mayor, with the advice and consent of the council."

Section 10 provides that: "The mayor shall preside at all meetings of the city council, and shall have a casting vote when the council is equally divided, and none other, and shall have the superintending control of all the officers and affairs of the city, and shall take care that the ordinances of the city and of this chapter are complied with."

Section 12 provides that: "He [the mayor] shall, from time to time, communicate to the city council such information and recommend such measures as in his opinion may tend to the improvement of the finances of the city, the police, health, security, ornament, comfort, and general prosperity of the city."

There are other provisions in regard to the duty of the mayor in guarding and protecting the rights of the city, to which we need not refer.

The leading case in this country on the subject of privileged communications appears to be Thorn v. Blanchard, 5 Johns. 508. In that case the plaintiff in error, with twenty-three others, inhabitants of the same county presented a petition to the council of appointment, stating that B., district attorney, was actuated by improper motives in his official conduct, and that from malice toward some, and the emoluments arising from the public prosecutions in other cases, gave rise to many indictments, and praying that B. might be removed from office, which petition was read by the council, who removed B. from his office. It was held that an action for a libel would not lie against A. at the suit of B. The first count of the declaration in that case is as follows: "Whereas, the said Anthony is, etc., yet the said Stephen, well knowing the premises, but contriving and wickedly and maliciously intending to injure the said Anthony, in his aforesaid good name, fame, credit, and reputation, and to bring him into public scandal, infamy, and disgrace, amongst his neighbors and others, the good citizens of this state, and to cause him to be dismissed and discharged from his said honorable and lucrative office of district attorney, in the district aforesaid, heretofore, to wit, on the seventh day of April, in the year of our Lord one thousand, eight hundred and three, at Salem, in the county of Washington, to wit, at the city and in the county of Albany, aforesaid, did falsely and maliciously write and publish, or cause or procure to be written and published, a certain false, scandalous, and malicious libel, of and concerning the said Anthony, as such district attorney, of the tenor and effect following, that is to say: 'To the honorable the council of appointment of the state of New York: We, the undersigned, inhabitants of the county of Washington, (meaning the said Stephen and others, inhabitants of the county of Washington,) humbly represent that the manner in which the public prosecutions (meaning the criminal prosecutions of the good people of this state)...