Russell v. Farrell

• Decision Date: 12 April 1899
• Citation: 52 S.W. 146,102 Tenn. 248
• Parties: RUSSELL v. FARRELL.
• Court: Tennessee Supreme Court

52 S.W. 146

102 Tenn. 248

RUSSELL v. FARRELL.

Supreme Court of Tennessee.

April 12, 1899

Error to circuit court, Shelby county; L. H. Estes, Judge.

Action by J. H. Farrell against V. C. Russell. Judgment for plaintiff. Defendant brings error. Reversed.

Finlay & Finlay and T. R. Boyle, for plaintiff in error.

Jos. M Greer, for defendant in error.

McFARLAND Special Judge.

This is an action of damages for libel, brought in the circuit court of Shelby county. The declaration alleges that J. H. Farrell the plaintiff below, had been deputy sheriff of Shelby county prior to September 1, 1896, at which time W. W. Carnes had been elected a sheriff; that defendant, V. C. Russell "published in writing to said sheriff and divers others the following statement, viz. 'that plaintiff, while acting deputy sheriff of Shelby county, Tenn., did collect in an action wherein this defendant was a party, twice,' *** and that the inevitable result of such publication was to injure plaintiff in his said office, and that this the defendant knew and intended such result." To this defendant pleaded not guilty. Subsequently, by leave of court, the plaintiff filed an amended declaration, in which he repeats substantially the allegations of the first declaration, and adding as new matter that, since the bringing of this action, the defendant, Russell, had caused to be printed a libelous, scurrilous, false, and malicious statement in a certain newspaper, the Evening Herald, printed in Memphis, the substance of which was a statement of the controversy between himself and Farrell leading up to the libel suit. In this publication in the Evening Herald purporting to be an interview with Russell, the statement nowhere appears that Russell charged Farrell with collecting costs twice, but that Farrell had come to him (Russell) in December, and asked him for the magistrate's costs. "I told him," says Russell, "that I had paid to him his costs, and those due the justice also, showing him my books. Farrell did not deny getting the amount, which needed only five dollars to balance accounts." And subsequently Esq. Haynes had demanded his costs, and, Russell refusing to pay same, Haynes had sued the plaintiffs in the original suits, patrons of Russell, who was a real-estate agent, and had collected these costs. The article also describes a personal difficulty between Farrell and Russell at Haynes' office, in which Farrell had abused Russell, and threatened him with pistol; and concludes: "When Sheriff Carnes was preparing to appoint deputies, I stated the above occurrence to him, and added that we desired better government. I did not approve of John Farrell being reappointed. Now, because Farrell could not get a reappointment, he wants to sue somebody." The article added, "Farrell has lately figured in several unfortunate cases," and this last statement is also charged to Russell in this amended declaration. To this amended declaration there was a plea of not guilty. When the cause came on for trial, Farrell testified first, and offered to read this newspaper article, when its reading was objected to, and the court finally permitted it to be read, saying: "I admit this solely upon the question of the state of Russell's mind towards Farrell,--malice. No recovery can be based upon it. I have decided that it cannot be pleaded in this suit by adding a new count. It being published since the summons was issued, it would have to be made the subject of a new suit." This newspaper article was then read to the jury, over the objections of defendant. The cause then proceeded to final judgment, upon the charges made in the original declaration, the substance of which was that Russell had written Carnes that Farrell, as an officer, collects costs twice. There was a verdict and...