Piper v. Woolman

• Decision Date: 03 January 1895
• Docket Number: 5735
• Citation: 61 N.W. 588,43 Neb. 280
• Parties: JOHN PIPER ET AL. v. WILLIAM WOOLMAN
• Court: Nebraska Supreme Court

61 N.W. 588

43 Neb. 280

JOHN PIPER ET AL. v. WILLIAM WOOLMAN

No. 5735

Supreme Court of Nebraska

January 3, 1895

ERROR from the district court of Hitchcock county. Tried below before WELTY, J.

REVERSED AND REMANDED.

M. M House and L. H. Blackledge, for plaintiffs in error:

Defendants should have been allowed to plead sufficient facts to show that the charges were acted upon by the church. (Hale v Wigton, 20 Neb. 83.)

The plea of privilege was sufficient and the evidence proffered thereunder was wrongfully excluded. (Shurtleff v Stevens, 51 Vt. 501; 1 Hilliard, Torts, p. 355; Wright v. Woodgate, 2 Cromp, M. & R. [Eng.], 573; Jarvis v. Hatheway, 3 Johns. [N. Y.], 180; Hale v. Wigton, 20 Neb. 83; Gardemal v. McWilliams, 26 Am. St. Rep. [La.], 195; Dial v. Holter, 6 Ohio St. 229; McKnight v. Hasbrouck, 20 A. [R. I.], 95; 2 Greenleaf, Evidence [14th ed.], sec. 421; Broughton v. McGrew, 5 L. R. A. [Ind.], 406; Abbott, Trial Evidence, pp. 663, 669, 670.)

The defense of privilege may be given under the general issue. (Newell, Defamation, p. 649, sec. 63; 1 Hilliard, Torts, p. 362; Bradley v. Heath, 12 Pick. [Mass.], 163; Fero v. Ruscoe, 4 Comst. [N. Y.], 162; Torrey v. Field, 10 Vt. 353.)

The court erred in admitting the evidence of the witness, Clifton, as to his opinion of the effect certain charges would have on the plaintiff. (1 Sutherland, Damages, p. 793; Alexander v. Jacoby, 23 Ohio St. 358.)

W. O. Woolman, contra:

The alleged finding of the church was properly stricken out. (Tubbs v. Lynch, 4 Har. [Del.], 521; 2 Wait, Actions & Defenses, p. 266; Boone, Code Pleading, secs. 11, 12; McLaughlin v. Campbell, 14 N. Y. Weekly Digest, 194.)

The motion to strike the matter from the reply was properly overruled. (Eikenberry v. Edwards, 32 N.W. [Ia.], 183; Paxton Cattle Co. v. First Nat. Bank of Arapahoe, 21 Neb. 621.)

The words of the charge were clearly libelous per se. (Brooker v. Coffin, 5 Johns. [N. Y.], 188; Matin v. Stillwell, 13 Johns. [N. Y.], 275; Hayner v. Cowden, 27 Ohio St. 292; Odgers, Libel & Slander [1st Am. ed.], 82; Malone v. Stewart, 15 O., 319; Townsend, Libel & Slander, sec. 182; Geisler v. Brown, 6 Neb. 254.)

Defendants omitted the necessary allegation that the charges were preferred regularly and in good faith. (Smith v. Thomas, 2 Bing. N. C. [Eng.], 372; Hilliard, Torts, p. 355; Kleizer v. Symmes, 40 Ind. 562; Coombs v. Rose, 8 Blackf. [Ind.], 155; Jarvis v. Hatheway, 3 Johns. [N. Y.], 180; Farnsworth v. Storrs, 5 Cush. [Mass.], 412; York v. Pease, 2 Gray [Mass.], 282; Odgers, Libel & Slander [1st Am. ed.], 239; Wilson v. Collins, 5 C. & P. [Eng.], 373; Oddy v. Lord George Paulet, 4 F. & F. [Eng.], 1009.)

There was no sufficient plea of justification. (Odgers, Libel & Slander, p. 174; Van Ness v. Hamilton, 19 Johns. [N. Y.], 349; Andrews v. Vanduzer, 11 Johns. [N. Y.], 38; Billings v. Waller, 28 HOW Pr. [N. Y.], 97; Swann v. Rary, 3 Blackf. [Ind.], 298; Wachter v. Quenzer, 29 N.Y. 547; Robinson v. Hatch, 55 HOW Pr. [N. Y.], 55; Bliss, Code Pleading, sec. 363; Swift v. Dickerman, 31 Conn. 285; Storey v. Early, 86 Ill. 461; Fowler v. Gilbert, 38 Mich. 292; Langton v. Hagerty, 35 Wis. 150; Buckley v. Knapp, 48 Mo. 152; Proctor v. Houghtaling, 37 Mich. 41; Chamberlin v. Vance, 51 Cal. 79; Heilman v. Shanklin, 60 Ind. 424; Dever v. Clark, 25 P. [Kan.], 205.)

OPINION

RAGAN, C.

William Woolman sued John Piper and J. B. Howard in the district court of Hitchcock county for damages for libel. Woolman had a verdict and judgment and Piper and Howard bring the case here for review.

Woolman alleged in his petition that on the 8th day of November, 1891, he was a clergyman of the Congregational church; that on said date Piper and Howard, well knowing the premises, and maliciously intending to injure Woolman in his profession and calling as such clergyman, published and caused to be published of and concerning him in his capacity as such clergyman, in the presence and hearing of divers persons, the following false, malicious, and defamatory matter, to-wit: "We charge him with repeatedly and persistently uttering statements that are contrary to the truth. We charge him with giving way to violent and unchristian temper. We charge him with defaming the good name of members of this church." We have omitted the innuendoes.

To this petition Piper and Howard answered: (1) They admitted the publication of the charges made the basis of Woolman's action; (2) they pleaded that the charges were true; (3) they denied that they made the publication maliciously or with intent to injure Woolman; and denied that they made such charges of or concerning Woolman as a clergyman; (4) they alleged that at the time of making the charges that both they and Woolman were members of the First Congregational church at Palisade, and that they were officers and deacons of the church, and as such it was their office and duty to prefer such charges, and that such charges were preferred in said church by them according to the usage and discipline of the church; (5) they alleged that the church afterwards tried Woolman on the charges thus preferred against him by them, the defendants, that such trial was according to the usages and discipline of the church, and that the church found Woolman guilty of the charges made against him and dismissed him from its membership.

1. This last paragraph of the answer of Piper and Howard was, on motion of Woolman's counsel, stricken out by order of the district court; and this action by said court is the first error assigned here by Piper and Howard. We do not think the court erred in striking out of the answer of Piper and Howard this clause, for the reason that we are of opinion that neither the finding of the church that Woolman was guilty of the charges preferred against him, nor the judgment of dismissal from its membership pronounced on such finding by the church, was competent evidence for Piper and Howard in this action to prove their defense that the charges they made against Woolman were true. If the church had found Woolman not guilty of the charges preferred against him by Piper and Howard such finding of the church would not have been competent evidence on behalf of Woolman to prove that the charges made were in fact false.

2. Woolman in his reply, in addition to other matters, alleged: "Plaintiff further states that these defendants, maliciously intending to injure him in his profession and calling as clergyman, conspired together to bring this plaintiff into public scandal, ridicule, and contempt without the knowledge and consent of the members composing said church." The court overruled the motion of Piper and Howard to strike out this part of the reply, and this is the second error assigned here. The court should have sustained this motion. This language, if it belonged anywhere, belonged in the petition. The office of a reply is to deny the facts alleged as defenses in the answer or to allege facts in avoidance of such defenses. This part of the reply did neither.

3. The other errors assigned, and which we notice, have reference to rulings of the court upon the admission and rejection of evidence at the trial. One Clifton was called as a witness for Woolman and testified that he was a minister of the gospel and a member of the Methodist Episcopal church. He was then asked: "State, if you know, what effect, if any the following charges would have upon a clergyman in the capacity of a clergyman: 'We charge him with repeatedly and persistently uttering statements that are contrary to the truth.'" Counsel for Piper and Howard objected to this question, as incompetent, immaterial, and irrelevant. The objection was overruled, and the witness answered as follows: "They would certainly be detrimental to his reputation and usefulness." The witness was then asked: "You may state what effect the publishing of the following...