Herringer v. Ingberg

• Citation: 91 Minn. 71
• Decision Date: 04 December 1903
• Docket Number: Nos. 13,649 - (104).,s. 13,649 - (104).
• Parties: E. J. HERRINGER v. PETER O. INGBERG.<SMALL><SUP>1</SUP></SMALL>
• Court: Supreme Court of Minnesota (US)

Page 71

91 Minn. 71

E. J. HERRINGER v. PETER O. INGBERG.¹

Nos. 13,649 - (104).

Supreme Court of Minnesota.

December 4, 1903.

Appeal by defendant from an order of the district court for Norman county, Watts, J., denying a motion for judgment notwithstanding the verdict for $250, or for a new trial. Reversed.

M. A. Brattland and Ole J. Vaule, for appellant.

John M. Hetland and F. H. Peterson, for respondent.

BROWN, J.

Action for libel, in which plaintiff had a verdict, and defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.

The facts are as follows: In 1900 the authorities of Norman county entered into contracts for the construction of what is called the "Hendrum-Hegne Ditch," which extends through the county from east to west for a distance of sixteen miles. The contracts were entered into in July, and by their terms the ditch was to be completed by January 1, 1901. Some of the contractors completed portions of the ditch covered by their separate contracts, but others failed to do so, and the matter ran along, the ditch uncompleted, until 1902. The failure fully to complete it was the cause of much discontent on the part of farmers affected thereby, and it attracted considerable public attention. Plaintiff was county auditor at the time, and was charged with certain duties in respect to the contracts and the completion of the ditch, and was a candidate for office at the fall election of that year. On October 10, 1902, there appeared in one of the newspapers published in the county the following item:

"Bondsmen of Contractors Will be Asked to Pay.

"Auditor Herringer and Clerk of Court Ward was here Saturday, looking up matters in regard to the unfinished portion of the Hendrum-Hegne ditch, with a view to commencing proceedings against the bondsmen of the contractors who did not fulfil their contract.

"The county has been somewhat lenient with them, owing to the difficulties encountered in the work, but they seem to have abandoned it entirely, and it has been decided to have it finished at once. Lenahan & Scribner are the contractors and C. W. Smith, subcontractor."

On October 22, following, defendant wrote and caused to be published in the Norman County Herald the following article:

"Editor Herald: The Hendrum Review of October 10, has an announcement that County Auditor Herringer and Clerk of Court Ward were out looking over the Hendrum-Hegne ditch and stating that proceedings will be instituted to prosecute the bondsmen of the negligent contractor who failed to complete his contract and that it has been decided to have the ditch completed at once. I hope very much that such will be the case as the Hendrum-Hegne ditch has been the biggest failure that the county has undertaken to do from the letting of the contract up to the present date, and I hope that Herringer can for his own sake prove that he has had nothing to do with the management of said ditch, as those county officials that have proven their incapability to manage the county affairs should not be re-elected to continue similar failures.

The ditch was let out on stations from the Red river east, through Hendrum, Hegne and McDonaldsville, and if I am correctly informed the price paid in Hendrum was 11 cents per square yard or from three to four cents more than the state pays for the digging of ditches. Why should the poor farmers along the ditch be compelled to pay more than the state does for such work? Are they more able than the whole state? It looks as though the county officials who were in charge of the matter had that opinion. If Mr. A. C. Tvedt, backed by J. C. Norby and others, had not come in on the day the contracts were made and bid the price down to 6, 7 and 8 cents per cubic yard, the whole ditch would probably have been let out at 11 cents per cubic yard, causing an additional cost of several thousand dollars. Thanks should be given to those who caused the saving in constructing the ditch. When the bidding was over, the contractors took off Tvedt's hands all the stations that he did not want at 6, 7 and 8 cents, thereby proving that the ditching could be done for less than eleven cents per yard. The contract was let so that the ditch should be ready in the fall of 1900, which was partly done in Hendrum from the Red river three or four miles east and completed in Hegne-McDonaldsville seven or eight miles, leaving three miles in Hendrum not dug at all so in the spring of 1901 all the water tributary to the ditch flooded the land in Hendrum and destroyed the crops of the farmers along the unfinished ditch.

Why has not the ditch been dug? It was to have been ready in about four months; now two years and four months have elapsed and no ditch finished. Why have not those in charge of the ditch hired some one else to do the work as they certainly have not paid for the work that has not been done? What makes the statement in the Review doubtful about finishing the ditch at once is that Herringer and Ward who are credited with that statement know that it cannot be done at once. The season is too late for ditching and it is most too late if anything is to be done to the bondsmen to get it in at the fall term of court, but it is good enough to put the ditch taxpayers at rest just now before election to be able to get their votes, knowing that the suffering ditch taxpayers got to pay the ditch tax or else lose their land. Ditch or no ditch, flooded or not flooded.

                                                          "Peter O. Ingberg."
                

On the contention that this article was libelous, intended by defendant as a reflection upon the honesty and integrity of plaintiff as county auditor, this action was brought for damages. The complaint alleges that the statements and inferences of the article are false; that the publication was malicious; and that defendant intended thereby, and was understood to mean by readers of the paper, that plaintiff's action as county...