Rosewater v. Hoffman

Decision Date03 July 1888
Citation24 Neb. 222,38 N.W. 857
PartiesROSEWATER v. HOFFMAN.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

An instruction to a jury by the district court that the alleged libelous article set out in the opinion was libelous per se, examined and sustained. 1

In an action for damages resulting from the publication of a libelous article in a newspaper, it was held error for the trial court to admit proof of, and instruct the jury to consider, the wealth of the defendant in estimating the damages which the plaintiff should recover; exemplary damages not being recoverable in this state.

The general rule is that it is the province of the court to construe written instruments and contracts entered into between the parties to the action; but where an instrument between one of the parties to the suit and a third party is collaterally introduced in evidence, the effect of which depends, not merely on its construction and meaning, but also upon extrinsic facts and circumstances, the inferences to be drawn from it are inferences of fact, and not of law, and, being open to explanation, must be submitted to the trial jury.2

Error to district court, Lancaster county; POUND, Judge.Mason & Whedon, for plaintiff.

Sawyer & Snell, for defendant.

REESE, C. J.

This was an action for libel brought by defendant in error against plaintiff in error in the district court of Lancaster county. The petition consists of three counts or causes of action, growing out of the publication of three alleged libelous articles in the Omaha Bee, and which were set out at length in the petition. The answer filed by plaintiff in error consistedof an admission of the publication of the articles as alleged, but alleging that they were true and published without malice, with good motives, and for justifiable ends, and from no feeling of ill will towards defendant in error. No further notice need now be taken of the pleadings.

Upon the trial the court gave a number of instructions asked by defendant in error, among which was the following: “You are instructed that, as a matter of law, each of said three articles complained of are libelous, and, the same not being privileged communications, if you believe from the evidence that the same were published maliciously, that is, without legal excuse, of and concerning the plaintiff, you will bring in a verdict for the plaintiff, unless you further believe from the evidence that said articles and charges therein contained and published of and concerning the plaintiff were and are true.” This instruction was excepted to at the time it was given, the giving whereof is now assigned for error. The objection is based upon the contention of plaintiff in error that the article published and alleged as the basis of the second cause of action was not libelous. The article referred to was as follows:

The Terrible Truth--The Governor's Private Secretary Unmasked--An Interesting Chapter from the Life of J. M. Hoffman.

LINCOLN, March 6th.

When I stepped into the office of the Gorham House Wednesday evening, I was accosted by Hon. James M. Woolworth, who said: ‘You are creating considerable commotion at the capitol. I should think you would be afraid to come down here at this time.’ ‘Not at all,’ said I. ‘There is no man in this or any other city whom I am not ready to face. I presume you refer to my editorial about the governor's secretary?’ ‘Yes,’ said Mr. Woolworth. ‘You fired a terrible bombshell. The article created most intense excitement. Is there really any truth in that charge? They are liable to give you trouble with a suit for libel.’ ‘Let them come on with their libel suits,’ I replied. ‘I am well fortified. My witnesses are right here, and they are responsible and reliable.’ Later in the evening I met that veteran Lincoln lobbyist, John McConnell, who said: ‘Well, you have got yourself into a terrible snap in charging Hoffman with stealing a horse. It is utterly incredible. He has lived here eight or ten years. He has a very nice family, and is highly connected. You must surely be mistaken.’ ‘I am very sorry for Mr. Hoffman's family,’ replied I, ‘but I don't believe I have made a mistake in the man. My informant is one of your most solid citizens. He owns $40,000 or $50,000 of property here, and certainly would not concoct such a story out of whole cloth. I saw him this evening just as I came in from the depot, and he gave me some more particulars, which more than ever confirm my belief in the truthfulness of the charge.’ ‘How did he come to tell you about this?’ asked McConnell. ‘It was by mere accident,’ replied I. ‘Last fall, two or three weeks after the election, a letter appeared in the Chicago Tribune, from Lincoln, in which the writer undertook to discuss the political outlook. He interpreted the call issued for a meeting of the Farmers' Alliance as a part of the scheme for meeting the Democrats, and agreeing upon a division of the federal patronage. He represented the Bee as one of the important factors in the division of the spoils by the Democrats, and declared that the owners of the Bee were Democrats, while I was simply editing the paper for them. This was really a repetition of campaign falsehoods, which were circulated by Jim Laird and his strikers, in the Second district, last fall. As a matter of fact, out of the $50,000 Bee stock I own four-fifths. My brothers in Cleveland own all but $2,000 of the balance. The only Democrat that owns stock in the Bee is Max Meyer, who owns just one share, and, as you know, is not a politician. I was somewhat provoked over this letter, and intended first to contradict, through the Tribune; but, being suddenly called to Washington, I dropped the matter. When the legislature was about to convene, I went to Lincoln, and incidentally inquired who was the correspondent of the Tribune. I was told by General McBride that Hoffman was the correspondent. The same day I met the man who is my informant, and we talked over the political situation. After giving him my views, I referred to the letter in the Tribune as a tissue of falsehoods. “Who wrote the letter?” asked my friend. “Hoffman, Dawes' private secretary,” said I. “Indeed! Are you after that fellow?” said my friend. He once served me a very scurvy trick. He borrowed my horse and saddle some years ago, and rode off and sold the property. He was arrested near Springfield, Missouri, and lodged in jail. The sheriff telegraphed me that he had him in charge, but I finally concluded I would not prosecute him. He was then released. If you write down there, you will get other particulars.” This was a great surprise to me, and I questioned my friend, at considerable length, about the matter, and became satisfied that Hoffman was a very bad man. Meantime I was called away to the death-bed of my mother, in Cleveland, and later on to Washington, a second time; and the matter, for the time being, dropped out of my mind, when the report reached me about the testimony before the coroner's jury that was investigating Griffin's death, and the facts connected with the burglary of the state treasury; and the fact was drawn out that Dawes and Hoffman had both held conferences with the detectives before the shooting. It flashed across my mind that Hoffman might have been deeper in the scheme than has yet appeared on the surface. That's why I wrote the article.’ ‘Well,’ said McConnell, ‘in your article you charge it upon Milton S. Hoffman. His name is J. M. Hoffman. He has been living here for years, right along, and nobody has ever heard a word against him.’ ‘That may all be,’ said I. ‘Many bad men have enjoyed good reputations until they were exposed. I may have made a mistake in the name; but the Hoffman I mean is Dawes' secretary.’ ‘How about that burglary?’ asked McConnell. ‘Never mind about that,’ was my reply. ‘For the present I can't go into the details; but I know what I am talking about.’ This morning I met Secretary Roggen at the capitol, and, after talking over the Hoffman affair, he said: ‘May you not be mistaken after all? There was a George Hoffman here on the Democrat, who was a dissolute character, and who was shot in Denver. He was not too good for horse-stealing, or any other thing.’ ‘Mr. Roggen,’ said I, ‘there is a bare possibility that a mistake has been made, and, if so, no man would be more sorry than I, and no man could make a more outspoken retraction than I.’ In order to make assurance doubly sure, I asked a friend this afternoon to accompany me to the residence of my informant, and found him as positive as ever. ‘Can't there be some mistake about this man Hoffman?’ asked the friend who accompanied me. They say at the capitol there is some other Hoffman.’ ‘Do I know my horse when I see it?’ said my informant. ‘Do I know my wife? Why, of course it is J. M. Hoffman, Dawes' secretary. I'll tell you just how it happened. It was in the summer of 1879. Hoffman was going down south of here to fix some land claims, and he asked me to lend him my horse. She was a bay, which I paid $125 for, and I had refused $150 for her. I put on a new bridle. Hoffman also asked me to lend him a little money, with which he bought some clothing. A week or so afterwards I met an officer [naming the man] who asked me if had lost my horse lately. I said I hadn't; but the officer then said he had seen a man with a mare just like mine a few miles below Firth, which he offered to sell for $40. His suspicions were aroused and he had a notion to arrest him. I asked him to describe the man, and it answered to Hoffman, and then I felt sure he had got away with my horse. Two or three weeks later I received a dispatch from Springfield, Missouri, saying Hoffman had been arrested, and was held to my order. After thinking it over, I concluded not to prosecute him. I wrote him to come back at once with the horse, and assured him I would not prosecute. He returned a week or two later, but without the horse. He was haggard in ...

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8 cases
  • Bank of Commerce v. Goos
    • United States
    • Nebraska Supreme Court
    • February 20, 1894
    ...is for the refusal by a bank to pay a check when it has in its hands sufficient funds of the drawer for that purpose. In Rosewater v. Hoffman, 24 Neb. 222, 230, is found following language: "It is a well settled rule in this state that punitive, vindictive, or exemplary damages cannot be al......
  • Bank of Commerce v. Goos
    • United States
    • Nebraska Supreme Court
    • February 20, 1894
    ...to pay a check, when it has in its hands sufficient funds of the drawer for that purpose. In Rosewater v. Hoffman, 24 Neb., on page 230, 38 N. W. 857, is found the following language: “It is a well-settled rule in this state that punitive, vindictive, or exemplary damages will not be allowe......
  • Bee Publishing Company v. Shields
    • United States
    • Nebraska Supreme Court
    • April 30, 1903
    ... ... [68 Neb. 752] a suit for libel was commenced by the plaintiff ... in the lower court against the Bee Publishing Company, and ... Edward Rosewater and Victor Rosewater, editors of the ... Bee, on account of the publication of this article ... An answer was filed to plaintiff's petition by ... of the publication. For this purpose it was held proper by ... this court in the case of Rosewater v. Hoffman, 24 ... Neb. 222, 230, 38 N.W. 857. It has also been held proper in ... other states for the purpose of taking away the alleged ... privilege of ... ...
  • Rosenthal v. Ogden
    • United States
    • Nebraska Supreme Court
    • January 7, 1897
    ... ... sufficiently indicated by the above language, and the ... principle involved was recognized in Rosewater v ... Hoffman, 24 Neb. 222, 38 N.W. 857, and again invoked in ... Simms v. Summers, 39 Neb. 781, 58 N.W. 431. The ... theory of plaintiffs was ... ...
  • Request a trial to view additional results

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