Pokrok Zapadu Publishing Company v. Zizkovsky

• Decision Date: 02 October 1894
• Docket Number: 5738
• Citation: 60 N.W. 358,42 Neb. 64
• Parties: POKROK ZAPADU PUBLISHING COMPANY v. ANTON ZIZKOVSKY
• Court: Nebraska Supreme Court

60 N.W. 358

42 Neb. 64

POKROK ZAPADU PUBLISHING COMPANY v. ANTON ZIZKOVSKY

No. 5738

Supreme Court of Nebraska

October 2, 1894

ERROR from the district court of Douglas county. Tried below before FERGUSON, J.

AFFIRMED.

Moriarty & Langdon and Frank T. Ransom, for plaintiff in error:

As no special damages are alleged, no cause of action is stated in the petition unless the article complained of is libelous per se. (Geisler v. Brown, 6 Neb. 254.)

The language of the publication is not libelous per se. (Odgers Libel & Slander, p. 1; Geisler v. Brown, 6 Neb. 254; Criminal Code, sec. 47.)

The cemetery association was a public corporation. The alleged libel was a privileged communication, and there should be no finding against the publishing company without proof of actual malice. (Shurtliff v. Stevens, 51 Vt. 501; Press Co. v. Stewart, 119 Pa. St., 585.)

There was error in that part of the court's instruction wherein the jury was told that the "plaintiff had filed a reply to the answer in which he denies each and all the allegations of affirmative matter therein set forth." (Dossler v. Wisley, 32 Mo. 498; Missouri Coal & Oil Co. v Hannibal & St. J. R. Co., 35 Mo. 84; Bradshaw v Mayfield, 24 Tex. 482; Bryan v. Chicago, R. I. & P. R. Co., 63 Iowa 464; Galloway v. Hicks, 26 Neb. 536; Code, secs. 132, 134, 144.)

Instructions should be confined to the issues. Where this rule has not been observed, reversal must follow. (Sackett, Instructions, sec. 19; Herron v. Cole, 25 Neb. 704.)

Instructions should be clear, explicit, and concise. (Sackett, Instructions, sec. 5; Milton v. State, 6 Neb. 137; Ballard v. State, 19 Neb. 610.)

Instructions relating to the question of malice and to the question of the injury resulting from the published statement, requested by the publishing company, were erroneously refused by the court. (Odgers, Libel & Slander, sec. 469, 582; Broadwell v. Nixon, 4 N.J.L. 362*; Mills v. Sleght, 5 N.J.L. 565; Todd v. Collins, 6 N.J.L. 154; Marshall v. Hann, 17 N.J.L. 425; Matthewson v. Burr, 6 Neb. 312; Gilbert v. Saddlery Co. 26 Neb. 207; Hancock v. Stout, 28 Neb. 301; First Nat. Bank of Madison v. Carson, 30 Neb. 104; Sackett, Instructions, sec. 25; Fitzgerald v. Meyer, 25 Neb. 77; School District of Chadron v. Foster, 31 Neb. 501.)

Capek & Piatti and Herdman & Herdman, contra:

The language complained of is libelous per se. (Turrill v. Dilloway, 17 Wend. [N. Y.], 428; Townsend, Slander & Libel [3d ed.], secs. 135, 140, 143; 3 Lawson, Rights, Remedies & Practice, sec. 1241; Cooley, Torts [2d ed.], p. 240; Chaplin v. Lee, 18 Neb. 440; Sanderson v. Caldwell, 45 N.Y. 398; Shattuc v. McArthur, 25 F. 133; Solverson v. Peterson, 64 Wis. 198; Hoke v. Brames, 95 Ind. 161.)

In an action for libel evidence that plaintiff had a wife and family is admissible on the question of damage. (Barnes v. Campbell, 60 N. H., 27; Rhodes v. Nagles, 66 Cal. 677.)

It is no defense that others had previously published or spoken the same words. (Townsend, Libel & Slander [3d ed.], sec. 417; Hinkle v. Davenport, 38 Iowa 365; McAllister v. Detroit Free Press Co., 15 Am. St. Rep. [Mich.], 347, and note.)

The cemetery association is a private corporation. (In re Danville Cemetery Association, 66 N.Y. 569.)

Officers and servants of a private corporation are privileged to the same extent from libelous criticism as are private individuals. (Wilson v. Fitch, 41 Cal. 363; Hunt v. Bennett, 19 N.Y. 173.)

A reply is waived where the trial proceeds as though one had been filed. (Schuster v. Carson, 28 Neb. 612; Western Horse & Cattle Co. v. Timm, 23 Neb. 526.)

A reply may be filed after verdict where both parties tried the case on the theory that the allegations of the answer were denied. (Whitney v. Preston, 29 Neb. 243.)

Instructions must be construed together, and if as a whole they properly state the law it is sufficient. (City of Lincoln v. Smith, 28 Neb. 762; Campbell v. Holland, 22 Neb. 589; Bartling v. Behrends, 20 Neb. 211; Gray v. Farmer, 19 Neb. 69; St. Louis v. State, 8 Neb. 406; Murphy v. State, 15 Neb. 383; Rice v. City of Des Moines, 40 Iowa 638; State v. Maloy, 44 Iowa 104.)

A charge given by the court must be construed with the evidence in the case. (Maurer v. Miday, 25 Neb. 580; State v. Downer, 21 Wis. 275; Huffman v. Ackley, 34 Mo. 277.)

Neither a newspaper nor an individual has a right to speak or publish defamatory words simply because they relate to matters of public concern. (McAllister v. Detroit Free Press Co., 15 Am. St. Rep. [Mich.], 341, and note.)

OPINION

The facts are stated by the commissioner.

RAGAN, C.

Anton Zizkovsky sued the Poprok Zapadu Publishing Company (hereinafter called the "Publishing Company") in the district court of Douglas county, for damages for an alleged libel published by the latter of and concerning the former. Zizkovsky had a verdict and judgment, and the Publishing Company prosecutes error to this court.

On and prior to October, 1890, the Publishing Company was a corporation engaged in the printing and publishing, in the city of Omaha, of a newspaper in the Bohemian language, which paper circulated almost exclusively among Bohemians of the state--a very large number of whom resided in the city of Omaha--its circulation being about 4,000. On the date above mentioned, Zizkovsky was the secretary of a cemetery association, a corporation organized by a number of Bohemians under the general incorporation laws of the state. The members of the cemetery association were all Bohemians and only people of that nationality or speaking that language were entitled to become members of such corporation and make interments in said cemetery. The article published by the Publishing Company and made the basis of this action, translated into English, was as follows: "The 'cemetery association' held, again on Monday after a long while, one of its meetings. The meeting was not a very harmonious one, and the consequence was that Mr. Anton Zizkovsky, the sec. pro tem., gave up his office. And how could he do otherwise, since the other members of the committee did not approve of his economy and his method of running the society's affairs. He paid out money whenever he felt like it. He paid it to whomsoever and how he pleased, without consulting anybody. But that is not the only thing. Some of his expenditures are suspicious. For instance, he counts that for nineteen days' work he paid $ 1.75 a day, whereas such work is paid $ 1.50 a day, and there are reasons to suppose that he paid no more than that, putting those 25 cents for each day into his own pocket. Another one of his entries also caused bad blood. He charged $ 10 for five visits to the cemetery. Not a single officer ever charged anything for something of that kind, as the inspection was always done on a day when nothing could be lost, as in the case of Zizkovsky's. And he, finding out that the committee cannot approve of such 'economy,' did not wait for them to take away the office from him, but resigned himself. With such economists as Zizkovsky is, the society would very soon end. The blame of this rests mainly with the members, who are indifferent and who do not go often enough to the meetings, all which enables such people as Zizkovsky to sneak into offices and smear their pockets."

1. The first argument made is that the publication complained of is not libelous per se, and, since no special damages are alleged in the petition, it does not state a cause of action. It will be observed that the publication complained of, in effect, made the charge that while Zizkovsky had expended only $ 28.50 of the cemetery association's funds for labor upon the cemetery grounds, he charged to the association and took from its funds the sum of $ 33.25 for said labor, and converted the difference of said sums, or $ 4.75, to his own use. This was, in effect, charging Zizkovsky with having committed the crime of embezzlement.

In Hendrickson v. Sullivan, 28 Neb. 329, 44 N.W. 448, it was held that "words falsely and maliciously spoken of a person, which impute the commission of some criminal offense, involving moral turpitude, for which the party, if the charge be true, may be indicted and punished by law, are actionable per se, and no special damages need be alleged or proved in order to maintain the action. " It is equally true that any written or printed statement which falsely and maliciously charges another with the commission of an indictable, criminal offense is libelous per se, and in a suit predicated upon the publication of such false and malicious statement the plaintiff need neither aver nor prove special damages. In determining whether the words of a printed publication are libelous the courts will not resort to any technical construction of the language used, but the court and the jury will read the words in court as they would read them elsewhere. Language alleged to be libelous is to be construed in its ordinary and popular sense, and the question is whether the language, when so construed, did convey, or was calculated to convey, to persons reading it the charge of a crime. (Turrill v. Dolloway, 17 Wend. [N.Y.] 426; Thomas v. Blasdale, 147 Mass. 438, 18 N.E. 214; Hayes v. Ball, 72 N.Y. 418.)

2 and 3. The second and third errors assigned in the petition in error relate to the admission and rejection of testimony on the trial; but what particular evidence the court erred in admitting or rejecting is not specifically pointed out, and for that reason these alleged errors cannot be considered.

4. The fourth alleged error argued in the brief is that the court in stating the case to the jury, told them that the "plaintiff had filed a reply to the answer, in which he denies each and every allegation of affirmative matter therein...