Hudson v. Schmid
| Decision Date | 08 April 1937 |
| Docket Number | 29857. |
| Citation | 272 N.W. 406,132 Neb. 583 |
| Parties | HUDSON v. SCHMID ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a case where an innuendo is necessary to make the meaning of alleged slanderous statements clear and understandable, such statements are not slanderous per se.
2. A statement claimed to be slanderous for the reason that it is claimed that a charge of crime is made is not slanderous per se unless the language in and of itself is naturally and presumably capable of being understood by hearers as a charge of crime.
3. Words to be slanderous per se must not only convey the expression of a wrong which is actionable, but also the nature of the particular wrong.
4. When published words are ambiguous or are meaningless unless explained, or are prima facie innocent, but capable of defamatory meaning, it is necessary to specially allege and prove the defamatory meaning of the words, and to allege and prove special damages.
Appeal from District Court, Lancaster County; Frost, Judge.
Action by Edith Hudson against Edward A. Schmid and another. Judgment for plaintiff, and defendants appeal.
Reversed and remanded, with directions.
Flansburg, Lee & Sheldahl, of Lincoln, for appellants.
Lloyd E. Chapman, of Lincoln, for appellee.
Heard before GOSS, C. J., DAY, PAINE, and CARTER, JJ., and TEWELL and YEAGER, District Judges.
In this case, Edith Hudson, plaintiff and appellee, instituted action against Edward A. Schmid and the Iowa-Nebraska Light & Power Company, a corporation, defendants and appellants, to recover damages for slander. Plaintiff based her right of recovery on certain statements which she alleged were, on or about the 24th day of April, 1935, made to her and in the presence of others by the appellant Edward A. Schmid, who at the time was engaged in the business of the Iowa-Nebraska Light & Power Company, a corporation, the other appellant.
The statement of the case to the extent necessary to a determination of this appeal is as follows: A petition was filed wherein plaintiff substantially set forth that at the time in question she was living at 811 Otoe street, Lincoln Nebraska, with her parents; that on the date mentioned the defendant Edward A. Schmid came to the residence, and while there and while acting within the scope of his employment as an employee of the Iowa-Nebraska Light & Power Company, a corporation, made certain maliciously false and defamatory statements to the plaintiff and in the presence of Matilda Hudson, Davie Hudson and Jesse E. Shuff. That portion of the alleged statements with its innuendo pertinent to this inquiry is as follows: " We know you (referring to this plaintiff) have had a jumper on there and we are going to have you arrested (meaning that this plaintiff had been stealing electric current from the defendants and that she would be arrested)." The portions of the foregoing quotation in parentheses are set forth in the petition and instructions as innuendo. The defendants filed answers in which they denied the making of the alleged statements and further denied that the alleged slanderous words were in fact false and defamatory or that they were falsely made. On the issues being joined, a trial was had to a jury, which resulted in a verdict and judgment in favor of plaintiff and against the defendants for the sum of $500. From this judgment the defendants have appealed.
As grounds for reversal of the judgment of the district court the appellants have set forth four assignments of error. We, however, find it necessary to discuss only the third assignment. This assignment deals with the question of whether or not the trial court was in error in the giving of instruction No. 5. In the examination of this instruction it becomes necessary to examine also instruction No. 1. In instruction No. 1 the court limited the jury to a consideration only of the words: " We know you have had a jumper on there and we are going to have you arrested." This limitation is again found in instruction No. 5. No fault is found, nor could properly be found, with the limitation.
The complaint is directed at the following language used in instruction No. 5, wherein the court told the jury that the words hereinbefore quoted were libelous per se: " The words claimed to have been used, as set out in paragraph one hereof, are slanderous per se." It is the contention of appellants that the words which the court submitted were not slanderous per se and that as a necessary consequence, under her pleadings, the appellee, not having alleged any special damage, was not entitled to recover.
Appellants contend that this case comes within the application of the rule that, where an innuendo is necessary to make the meaning of alleged slanderous statements clear and understandable, such statements are not slanderous per se. Kee v. Armstrong, Byrd & Co. (Okl.Sup.) 151 P. 572; Callfas v. World Publishing Co., 93 Neb. 108, 139 N.W. 830; Hays v. Mitchell, 7 Blackf.(Ind.) 117; Carter v. Andrews, 16 Pick.(Mass.) 1. For the purpose of determining this question, it is necessary to examine the language which the court informed the jury was slanderous per se. The particular word upon which this examination must center is " jumper." Is the word in the sense used either alone or accompanied by a threat of arrest capable of being naturally and presumably understood as a charge of crime? If it is not so naturally and presumably capable of being understood by the hearers as a charge of crime, then the language so defined by the court was...
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