McCurdy v. Hughes

Decision Date20 May 1933
Docket NumberNo. 6102.,6102.
Citation248 N.W. 512,63 N.D. 435
PartiesMcCURDY v. HUGHES et al.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

On Petition for Rehearing.

Syllabus by the Court.

1.In the instant case there is evidence of conversations between the defendants

Hughes and Mann and others from which the jury might draw the inference that both of the defendants had something to do with causing the publication of the alleged libelous article in the Bismarck Tribune.

2.All persons who cause or participate in or aid or abet another in the publication of defamatory matter are liable in a civil action for damages.

3.Bringing to the attention of the Supreme Court, by verified complaint, that any member of the bar of the state is charged with conduct warranting his disbarment or suspension, under section 808, Supplement to the 1913 Compiled Laws, is a proceeding authorized by law and is absolutely privileged and an instruction advising the jury that the making and filing of charges against the plaintiff in the Supreme Court is a privileged communication, unless the making and filing of such charges are with actual malice and without probable cause, is error.

4.The preliminary consideration given to complaints relating to the conduct of attorneys by the Supreme Court(under section 808, Supplement to the 1913 Compiled Laws) in advance of preferment of charges for disbarment is not a public proceeding and the publication of such complaints in a newspaper is not privileged.

5.In an action for libel for the publication of an unprivileged communication malice may be inferred if the publication is libelous.

6.In an action for libel for the publication of an unprivileged communication the jury may infer malice and allow punitive damages, if the publication is libelous.

7.Before a letter can be received in evidence as one of a series of letters in the course of correspondence as an admission against a party, there must be preliminary proof that the party sought to be charged either wrote the letter or had received it in the course of correspondence.Where the record does not show that the party sought to be charged wrote the letter or received the letter, it is not admissible in evidence.

8.Section 9554,Compiled Laws 1913, which makes the delivery of a libel to the person libeled a publication for the purpose of conviction in a criminal case, does not apply to civil actions.

Appeal from District Court, Burleigh County; R. G. McFarland, Judge.

Action by F. E. McCurdy against E. A. Hughes, George D. Mann, and others.From an adverse judgment and from an order denying defendants' motion for judgment notwithstanding the verdict or in the alternative for a new trial, the named defendants appeal.

Judgment and order reversed and a new trial granted.

See, also, 61 N. D. 235, 237 N. W. 748.

O'Hare, Cox and Cox, of Bismarck, for appellantE. A. Hughes.

Zuger & Tillotson, of Bismarck, for appellantGeorge D. Mann.

Scott Cameron, of Bismarck, for respondent.

BURKE, Judge.

This is an appeal from a judgment and from an order denying defendants' motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The plaintiff is an attorney at law and was on the 12th day of January, 1929, and for four years prior thereto, the state's attorney of Burleigh county and on that day he alleges, in his complaint, that the defendants caused to be made a certain affidavit, which is made a part of the complaint and caused the same to be published in the Bismarck Tribune and by the Associated Press and the subscribers to its service and also caused to be written a certain comment by way of editorial and news comment and caused great headlines to be written in the Bismarck Tribune concerning the plaintiff in his capacity and profession as an attorney at law and his past record as state's attorney of Burleigh county, N. D.It is further alleged that the publication is false and defamatory and malicious and that the defendants intended to maliciously injure and defame the plaintiff in his reputation and his business.

The defendant Hughes, by answer, denies that he published, or caused to be published, any of the said charges and alleges that he filed a complaint against the plaintiff with the clerk of the Supreme Court; that the statements made in the complaint were true; and that the complaint filed was a privileged communication to the court.

The defendant Mann denies that he personally published the affidavit, or the said complaint, of E. A. Hughes and alleges that the Bismarck Tribune published the same in good faith, as legitimate news, as shown by the public records in the office of the clerk of Supreme Court, and avers that no malice, ill will, or intent to defame the plaintiff was intended by such publication, and only lawful comments to the said publication were made.

The case was tried to a jury and verdict rendered for the plaintiff, upon which judgment was duly entered and thereafter the defendants moved for judgment notwithstanding the verdict, or in the alternative, for a new trial, which motion was denied and the defendants appeal from the judgment and from the order denying the motion.

Defendants' assignments 1, 2, 14, 16, 17, and 35 all relate to the question of the liability of the defendant Hughes for the publication of the affidavit and articles complained of as libelous.The only wrongful acts alleged in the complaint, as a basis for recovery against the defendants, are charged in paragraph three of plaintiff's complaint, which is as follows: “That on or about the 12th day of January 1929, at Bismarck, the defendants caused to be made a certain affidavit, which is annexed hereto, marked exhibit ‘A’ and made a part hereto by reference as completely as though the same were set out in full, and caused the same and references thereto to be published in The Bismarck Tribune and by the associated press and the subscribers to its service and also caused to be written a certain comment by way of editorial and news comment and caused great headlines to be written in the Bismarck Tribune which said headlines and news matter and editorial matter are set out on exhibit ‘B’ attached to and made a part of this complaint by reference as completely as though set out in the body herein and which said affidavit and words concerning the plaintiff and said editorial comment and said news item were written of and concerning the plaintiff in his capacity and profession as an attorney at law and his past record as state's attorney of Burleigh County, North Dakota.”There is no allegation in the complaint relating to any publication other than as alleged in the foregoing paragraph three.It is clear from this paragraph that plaintiff's cause of action for damages is based upon the publication of the affidavit as alleged in said paragraph three.

It is the contention of the defendants that there is nothing in the evidence connecting the defendantE. A. Hughes with the publication of the article in the Tribune, which article is the basis of plaintiff's cause of action.That the defendant Hughes, in a casual conversation with Mann, simply stated that he was going to file a complaint, or charges, against Mr. McCurdy in the Supreme Court; that Mr. Mann said that the Tribune or Associated Press might be interested to know when they were filed and Mr. Mann is not sure, but thinks, that Mr. Hughes did call him up and tell him that the complaint had been filed; that while Mr. Hughes denies that he called Mr. Mann and told him the complaint had been filed, that even if Mr. Mann is correct in his statement, then the information given to Mann that the charges had been filed was in accordance with Mr. Mann's express wish to get the information and that it was public matter, filed in a public office which Mr. Mann could have secured by telephoning the clerk.

Defendants rely upon the case of Schoepflin v. Coffey, 162 N. Y. 12, 56 N. E. 502, 503.In this case the complaint charges “that on the 15th day of May, 1895, * * * the defendant maliciously spoke and published concerning the plaintiff the false and defamatory words following: ‘An indictment has been issued against Schoepflin (meaning this plaintiff) by the grand jury of Albany county in connection with Campbell's ice bill, and a warrant is out for his arrest.’‘I know that an indictment has been found against Schoepflin (meaning this plaintiff) by the grand jury in connection with Campbell's ice bill, from the best authority in the world.I would gamble on it,’-meaning and declaring thereby that he knew the grand jury of Albany county had found an indictment against the plaintiff, who was then a member of the legislature, for corrupt and criminal conduct in connection with a bill which had been introduced and was pending in the assembly.That such statements were made in the presence of G. Edward Graham, and Lewis J. Seabold, and that Graham was the manager of the Associated Press at Albany, and Seabold was a reporter and news gatherer for the New York World.It then averred, ‘And thereby defendant caused said false and defamatory statement to be printed and published in most of the daily newspapers of the state of New York and in the said New York World.”The court said: “Obviously the complaint contains no sufficient allegation that the defendant caused the printing or publication of the words spoken, to constitute a cause of action against him for libel.”The complaint alleged that he made the defamatory statement in the presence of certain newspaper correspondents and there is nothing to show that he had anything to do with the publication of these statements.There is no allegation that he had anything to do with the publication of the statement which he made.He simply made the defamatory statements in the presence of newspaper correspondents.The court continues: “The next question presented is whether the proof was sufficient to justify the court in...

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  • Ramstead v. Morgan
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    ...plaintiff to amend his pleadings to this effect if he wishes to do so.' 61 L.J.Q.B. at page 727. The court in McCurdy v. Hughes, 1933, 63 N.D. 435, 248 N.W. 512, 87 A.L.R. 683 clearly recognizes that a complaint made to the supreme court of the state, charging an attorney with misconduct is......
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