Appeal
from Jefferson Circuit Court; Antonio B. Grace, Judge
affirmed.
STATEMENT
BY THE COURT.
This is
an appeal from a judgment of the Jefferson Circuit Court
wherein appellee, on May 19, 1909, recovered a verdict for
damages in the sum of $ 1,000 in a suit for libel on a second
trial thereof. On the first trial there was also a verdict
for plaintiff, which was reversed on appeal to this court.
Galbraith v. Murray, 86 Ark. 50.
The
complaint alleged that Murray was the editor and proprietor
of The Press Eagle, a weekly newspaper published in Pine
Bluff, having a general and large circulation in the State
more particularly in Jefferson County, also in divers other
States: that plaintiff and one J. B. York and C. Voss were
commissioners of Graveling District No. 1, for paving Fifth
Avenue in the city of Pine Bluff, and as such had charge of
the work, and were still handling the funds of the district
that on the 19th of June, 1906, Arthur Murray falsely and
maliciously composed and published in The Pine Bluff Weekly
Press-Eagle of and concerning the plaintiff the following:
"There
can no longer be any doubt of the fact that there is
'something rotten in Denmark' so far as the affairs
of Graveling District No. 1 are concerned. Despite the
tenderfootedness of two members of the committee appointed by
the interested and defrauded property owners to make an
investigation, facts have developed that clearly prove that
the commissioners have charged their neighbors and fellow
property owners of Fifth Avenue $ 10,477.85 for gravel, for
which they paid the St. Louis Southwestern Railway Company
only $ 3,431.80, leaving a 'net profit' in this
transaction alone of over $ 7,000. If the commissioners
profited in this transaction, it is not unreasonable to
suppose that they profited in the employment of labor and
other items of expense necessary to the completion of this
graveling district, which is conceded to be the most wretched
botch of street paving ever perpetrated in this or any other
community.
"The
Press-Eagle is not addicted to publishing facts and figures
involving the character of public or private citizens without
being thoroughly advised as to the authenticity of these
facts and figures. Therefore, when we stated last week that
an apparent 'overcharge' of $ 7,000 had been made for
gravel by the commissioners of Graveling District No. 1, we
were very careful to be within the bounds of truth, and to
express the matter in language as mild as possible so as to
avoid giving offense or doing injustice to those responsible
for the shortage, pending a thorough investigation by those
most interested. This investigation has now been made so far
as it is possible for the committee to proceed, and the facts
in every way confirm the statement first made in this paper
last week that the commissioners had overcharged the district
for about $ 7,000 for gravel alone. The cost of excavating,
hauling dirt, curbing, etc., has not as yet been
investigated, nor are we advised that it will be. But, if the
investigation should be made, we should not be surprised if
'overcharges' were found in these items, as well as
that disclosed by the investigation as to the cost of the
gravel.
"There
are three men who, by virtue of the trust imposed in them by
their fellow citizens, should be able to explain why their
records show that this overcharge of over $ 7,000 was made in
the purchase of gravel from the St. Louis Southwestern
Railway Company. These men are J. B. York, president; Carl
Voss, secretary, and R. M. Galbraith, treasurer, of Graveling
District No. 1. The two first named have been before the
committee and interested property owners, and admitted their
inability to explain the manifest overcharge. This leaves the
burden of the explanation upon R. M. Galbraith, treasurer,
who has been at Jacksonville, Ill., attending the funeral of
a friend, for the past week or ten days.
"Meantime
another meeting of the property owners of Graveling District
No. 1 has been called at the Board of Trade for Thursday
night of this week. By that time it is hoped that the
obsequies at Jacksonville, Ill., will have been concluded so
as to enable Treasurer Galbraith to return to the city and
produce his vouchers and checks for $ 7,000, good and lawful
money of the realm, that both his records and those of
Secretary Voss show was paid to the St. Louis Southwestern
Railway Company, and which the officers of that corporation
assert over their official signature never came into their
possession.
"In
the classic language of the far-famed Sir Lucius
O'Trigger, 'tis a pretty quarrel as it stands."
That on
the same date these paragraphs appeared in the said
Press-Eagle:
"Graveling
District No. 1 is not the only paving district formed in Pine
Bluff that was boodled. There are others."
"Still
we see no very good reason why the check book can not be
produced, even if the vouchers are missing."
Thereby
seeking and intending to charge the plaintiff with the crime
of embezzling the funds of the district, or fraudulently
converting the funds of the district to his own use, and
defrauding said district of said funds, thereby seeking and
intending to falsely impeach the honesty, integrity, veracity
and reputation of this plaintiff, and thereby exposing him to
public hatred, contempt and ridicule.
Among
other defenses set up in the answer were the following:
"5.
Defendant states that at the time of publication of the
matter complained of by plaintiff he, the defendant, was
reliably informed and honestly believed that same was true,
and that same was a fair criticism upon the official conduct,
as public officers, of the commissioners and officers of
Graveling District No. 1 of the city of Pine Bluff.
"6.
Defendant says that he was induced to publish the matter
alleged by plaintiff as libelous with the belief that same
was true, and that same was a fair criticism upon the conduct
of the officers of Graveling District No. 1 of the city of
Pine Bluff, as public officers, by reason of the conduct of
the plaintiff, whereby he made it to appear that such
criticism was fair, and, so believing, defendant published
the same in good faith, and without malice against plaintiff,
and for the sole purpose of advising the property owners of
said graveling district and the public interested of the true
condition of affairs of said graveling district, which was at
the time of said publication of great public concern and
interest to said property owners and the public in said city
of Pine Bluff, where said paper was published.
"7.
Defendant states that the published matter set forth in the
complaint, and now complained of by the plaintiff, was
commonly and generally reported and believed prior to the
time of said publication in the neighborhood where plaintiff
resided, and where said publication was made; that defendant
heard the reports relative to such matters, and believed same
to be true, and published same with such belief, without
malice toward plaintiff or the intent charged in the
complaint, and without intention to injure plaintiff.
"8.
Defendant states that, since the publication complained of,
towit: on June 26, 1906, he published in said. Pine Bluff
Press-Eagle an article entitled 'Are Satisfied,'
wherein it was stated that plaintiff, R. M. Galbraith, had
explained satisfactorily to the property owners present at a
meeting of the property owners of said Graveling District No.
1, held at the Board of Trade in the city of Pine Bluff, his
conduct as commissioner and treasurer of said graveling
district, about which so much has been said, etc., and on the
same day he also published therein an article entitled
'R. M. Galbraith Makes Statement,' setting forth in
full a statement publicly made by plaintiff, Galbraith,
explanatory of matters concerning said Graveling District No.
1, which had been the subject of investigation and his
official conduct, as a public officer, with reference
thereto."
The
testimony on the second trial was the same as on the first
except that on the last trial Chester Flournoy testified that
he was in the employ of appellant as foreman in the office
and assisted in printing the Press-Eagle on June 19, 1906. On
that day it was much after four o'clock in the afternoon
when the paper went to press. The paper was not printed and
not put in circulation that day until after four o'clock,
P. M.
Appellee
testified in part as follows: "About the 10th of June I
went away to Jacksonville, Ill., on account of the sickness
of my brother-in-law. This was on Sunday. On the following
Tuesday he died. He was buried on Thursday, and I stayed
there until the following Monday, when I left for home at
Pine Bluff, and returned here on Tuesday afternoon about 3
o'clock. (This was June 19.) I first heard of the
publication of the articles in the Press-Eagle as soon as I
reached home. I had not heard of it before."
Appellee
also testified over the objection of appellant in part as
follows: "When I came to the bank, I found all of our
people, that is the employees of the bank, and the directors
that I met, all in a great state of excitement. The first
thing they said, "We are awful glad you got back. We
didn't know but what this thing would go under, this
bank." They insisted that I had to vindicate myself. In
fact, it was a trial such as I never want to go through
again; the effect was far-reaching. I was trying to have my
sons do business in Jacksonville in the furniture and carpet
business. From some means or other it was whispered around
there that things were not quite straight."
Appellee
was asked the following question: "Did the publication
of that...
