Murray v. Galbraith

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.,
• Citation: Murray v. Galbraith, 128 S.W. 1047, 95 Ark. 199 (Ark. 1910)
• Decision Date: 23 May 1910
• Parties: MURRAY v. GALBRAITH

128 S.W. 1047

95 Ark. 199

MURRAY v. GALBRAITH

Supreme Court of Arkansas

May 23, 1910

[Copyrighted Material Omitted]

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...