Rhodes v. Star Herald Printing Co., 35149

• Decision Date: 09 March 1962
• Docket Number: No. 35149,35149
• Citation: 173 Neb. 496,113 N.W.2d 658
• Court: Nebraska Supreme Court
• Parties: Paul E. RHODES, Appellant, v. STAR HERALD PRINTING CO., a corporation, The Scottsbluff Star Herald, Len Propp, Floyd Wisner, Maryland Casualty Co., Inc., Appellees.

Page 658

113 N.W.2d 658

173 Neb. 496

Paul E. RHODES, Appellant, v. STAR HERALD PRINTING CO., a corporation, The Scottsbluff Star Herald, Len Propp, Floyd Wisner, Maryland Casualty Co., Inc., Appellees.

No. 35149.

Supreme Court of Nebraska.

March 9, 1962.

Syllabus by the Court

1. In order for a publication in a newspaper to be libelous per se, its nature and obvious meaning must be such as to impute to a person the commission of a crime, or subject him to public ridicule, ignominy, or disgrace.

2. There is no civil liability, in the absence of actual malice, for qualifiedly privileged, defamatory publications.

3. Whether or not a newspaper article is libelous per se is a matter of law for the court.

4. Newspaper article not expressing newspaper's opinion, but stating the acts and proceedings of courts and their officers relating to conduct of the plaintiff, is qualifiedly privileged, and not actionable in the absence of actual malice.

5. In determining whether publication is libelous per se, language of publication can alone be looked to, without the aid of innuendos not supported by the language used.

6. As a general rule fair and impartial reports of judicial, executive, or legislative official proceedings are considered as qualifiedly privileged, and are not actionable in the absence of actual malice.

7. Under the provisions of section 25-2221, R.S.Supp., 1959, all courts and their offices may be open for business on Saturdays, Sundays, and holidays in the discretion of the judges of such courts.

Paul E. Rhodes, Howe, pro se, for appellant.

Atkins, Ferguson & Nichols, Scottsbluff, James L. Macken, Bridgeport, for appellees.

Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ., and SCHEELE, District Judge.

CARTER, Justice.

This is an action for libel brought by the plaintiff, Paul E. Rhodes, against the defendants, Star Herald Printing Company, a corporation, the Scottsbluff Star Herald, Len Propp, Floyd Wisner, Norval Houston, and Maryland Casualty Company, Inc. The trial court sustained general demurrers to the petition and, upon failure of the plaintiff to file an amended petition, dismissed the action. Plaintiff has perfected his appeal to this court.

The action is grounded on a news article published in the Scottsbluff Star Herald, a daily newspaper of general circulation in western Nebraska, which is owned by the Star Herald Printing Company, a corporation. Floyd Wisner is alleged to be the publisher of the Scottsbluff Star Herald and Len Propp is alleged to be the writer of the article constituting the basis for the action. The petition alleges that Norval Houston is the sheriff of Morrill County, Nebraska, and the person alleged to have communicated the statements, contained in the published article, to Len Propp with the intention that they be published for the purpose of damaging the business and reputation of the plaintiff, a practicing lawyer at Bridgeport, Nebraska.

The headline of the published article, dated January 14, 1960, stated: 'Sheriff Continues Search for Bridgeport Attorney Rhodes.' The article continued in substance as follows: The sheriff of Morrill County late Wednesday said he is still looking for Paul E. Rhodes, Bridgeport attorney, whom he intends to take into custody unless a $1,000 bond is posted. He stated that he had been unable to find Rhodes since he had been released from jail on Tuesday. The bond referred to by the sheriff was set by Judge A. W. Crites of Chadron following a hearing in district court on Monday in which Rhodes was charged with second degree arson. Earlier in the day Rhodes released a $1,000 bond posted on December 5, after a preliminary hearing on the same day, was taken into custody, and filed for a writ of habeas corpus. He was brought before Judge McFarland, a hearing was set for January 27, and he was released without bond. After Judge Crites again set a $1,000 bond, Rhodes declined to post bond and was lodged in the county jail at Gering. At Gering he was also issued a writ of habeas corpus and released on a $1,000 bond after hearing was set for February 2.

It is the contention of plaintiff that the foregoing is libelous per se and that it was not published with good motives and justifiable aims. It is alleged that the publication was made for the sole purpose of injuring the plaintiff in his business and to cause him and his family mental pain and anguish, which he asserts they have suffered. He alleged that his business, his reputation, and his credit have been damaged in the aggregate sum of $998,000, for which amount he prayed judgment.

A party who stands on a general demurrer to a petition thereby admits the material facts averred, and must take all the consequences which result from such admission. Panebianco v. City of Omaha, 151 Neb. 463, 37 N.W.2d 731. For the purposes of this appeal we shall treat the facts well pleaded as true. It will be noted however, that plaintiff does not contend that the facts stated in the published article are false. The published article does not charge the plaintiff with the commission of crime or assert that he is a fugitive from justice. It does state that the sheriff of Morrill County intends to take Rhodes into custody for failure to post a $1,000 bond fixed by the district court. The contention of plaintiff that the published article imputes an indictable offense cannot be sustained.

In World Publishing Co. v. Mullen, 43 Neb. 126, 61 N.W. 108, 47 Am.St.Rep. 737, this court stated the general rule to be as follows: 'The rule is that any language the nature and obvious meaning of which is to...