Sheibley v. Fales

• Decision Date: 21 May 1908
• Docket Number: 15,365
• Citation: 116 N.W. 1035,81 Neb. 795
• Parties: THOMAS J. SHEIBLEY, APPELLANT, v. FRANKLIN D. FALES, APPELLEE
• Court: Nebraska Supreme Court

116 N.W. 1035

81 Neb. 795

THOMAS J. SHEIBLEY, APPELLANT, v. FRANKLIN D. FALES, APPELLEE

No. 15,365

Supreme Court of Nebraska

May 21, 1908

APPEAL from the district court for Dixon county: GUY T. GRAVES JUDGE. Affirmed.

AFFIRMED.

W. V Allen and W. E. Gantt, for appellant.

J. J McCarthy, W. D. McCarthy and John V. Pearson, contra.

ROOT, C. FAWCETT and CALKINS, CC., concur.

OPINION

ROOT, C. J.

Some years since plaintiff became involved in litigation with Dixon county over a claim made by him for services rendered as its clerk, and a counterclaim made against him for fees collected as such officer, and alleged to have been illegally retained. In 1898 plaintiff was defeated in that action, and in March, 1901, this court affirmed said judgment.

J. J. McCarthy, an attorney residing in Ponca, plaintiff's home, was employed to assist the county attorney in said litigation, and later became a candidate for congress. In November, 1901, plaintiff secured three affidavits, from as many persons, containing statements reflecting seriously on McCarthy's character, and during the summer and fall of 1902 actively published their contents throughout the congressional district wherein McCarthy and plaintiff resided. Defendant was chairman of McCarthy's congressional committee. He learned of plaintiff's conduct, made an investigation of the facts, secured copies of the affidavits in plaintiff's possession, and procured counter affidavits from the persons who had signed and sworn to the ones used by plaintiff. The counter affidavits contained statements that affiants did not know or understand the contents of the affidavits given by them to plaintiff, and that the alleged facts therein stated were untrue. A few days before election defendant wrote and published the following article: "The republican congressional central committee has been informed that a base, slanderous attack is being made by our opponents on the character of Hon. J. J. McCarthy in these closing days of the campaign. The committee have carefully and fully investigated the statements being circulated and know them to be false in every detail; that they have been prepared for their supposed political effect, and are being used in an attempt to estrange voters from the republican candidate, and to promote the interest of the fusion nominee. This committee is in possession of counter affidavits showing conclusively that all of the charges against our candidate are absolutely false. J. J. McCarthy has led a clean and honorable life in this district for twenty years, and no breath of suspicion as to his morality was ever hinted until his political enemies in their desperation, knowing his strength with the people, conceived the idea of procuring perjured statements, with the hopes of thereby injuring his candidacy. Every fairminded man will condemn this contemptible method of attack, and every lover of justice and fair play will register his protest against this outrage. The animus of this attack originated in a case in which J. J. McCarthy was employed to assist the county in an action brought to recover fees belonging to Dixon county, which T. J. Sheibley (meaning the plaintiff), as county clerk, failed to account for. This case is reported in 61 Neb. 409, and since which time T. J. Sheibley (meaning the plaintiff) has been active in originating and circulating false and malicious reports attacking the character of the republican candidate for congress in this district."

Plaintiff then instituted this suit to recover damages for the publication of said article. The only innuendoes in the petition are the two copied above, but it was generally alleged that the publication was false and malicious and made of and concerning plaintiff. Defendant answered, admitting the publication of the writing, "and alleges that the same is true, and that the defendant published the same with good motives and for justifiable ends." To the answer plaintiff replied: "Denies that the libelous matter set out in the petition is true, and further denies that the defendant published the same with good motives and for justifiable ends." Upon the trial plaintiff demanded that he be given the opening and closing of the case. The court denied the request, and thereupon plaintiff asked that he be permitted in the first instance to introduce testimony for the purpose of showing the circulation of the libelous article and the amount of his damages. This request the court also refused. Defendant then assumed the laboring oar, and the trial continued throughout two days. Immediately after the close of the evidence plaintiff moved "to strike out all the evidence in this case introduced by the defendant and direct a verdict for plaintiff," for the reason that there was no evidence showing the truthfulness of the libelous matter, and that the evidence did not tend to establish good motives on the part of defendant in publishing the alleged libel. The motion was overruled. The court limited the argument of counsel to 30 minutes on a side. Plaintiff's counsel moved for a modification of this order. The motion was overruled, and thereupon counsel waived argument because of the alleged insufficiency of time to present plaintiff's case to the jury. A verdict was returned for defendant, and plaintiff has appealed, assigning 94 alleged errors of the trial court. Not all the errors assigned are argued in the brief, and we will only consider those referred to in the written argument.

1. It is insisted that the answer does not state a defense to the petition, because the attempted justification is a statement of the pleader's conclusion, and not an allegation of fact; that the alleged libel contains five distinct charges: (1) Making a base, slanderous attack on McCarthy's character; (2) circulating false statements for political effect; (3) procuring perjured statements for the purpose of injuring McCarthy's candidacy; (4) failure to account for fees while holding an office of public trust; (5) making such charges for personal revenge; that, to justify, defendant must have alleged with particularity every fact essential to sustain the truth of all said charges, and with a certainty sufficient to uphold an indictment. We do not think that the article should be construed as counsel interpret it. To us it seems to charge that plaintiff, from a desire to be revenged on McCarthy and defeat him for congress because that attorney appeared against him in his litigation with Dixon county, procured affidavits containing untruthful charges concerning McCarthy, and circulated them in the congressional district where McCarthy resided; that Dixon county had recovered a judgment against plaintiff for fees he had earned as clerk of said county and failed to account for. The article does not directly or indirectly charge plaintiff with embezzlement. The statement is not made that plaintiff committed perjury or subornation of perjury, nor does it appear from any allegation in the petition, or a reasonable construction of the language used in the article referred to, that an oath had been falsely taken or procured in any judicial proceedings, and therefore it does not indirectly charge any one with perjury or subornation of perjury. Power v. Miller, 2 McCord (S.C.) 220. Section 132 of the code provides: "In the actions mentioned in the last section, the defendant may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances to reduce the amount of damages, or he may prove either." The sufficiency of an answer justifying a publication, in an action for libel, depends upon whether the charge in the petition is general or specific. Where the charge is specific, it is sufficient to state that the alleged defamatory words set forth in the petition are true. Where the charge is general, the answer must state facts which show that the defamatory words are true. And, generally, if the answer gives the plaintiff sufficient notice of whet defendant will attempt to prove, it is sufficient. McLaughlin v. Cowley, 127 Mass. 316; Dever v. Clark, 44 Kan. 745, 25 P. 205; Fenstermaker v. Tribune Publishing Co., 12 Utah 439, 35 L. R. A. 611, 43 P. 112; Hauger v. Benua, 153 Ind. 642, 53 N.E. 942; Stark v. Publishers Knapp & Co., 160 Mo. 529, 61 S.W. 669; Kuhn v. Young, 78 Tex. 344, 14 S.W. 796; Myers v. Longstaff, 14 S.D. 98, 84 N.W. 233. Plaintiff did not ask to have the answer made more definite and certain, and was ready with, and introduced, his evidence to show that the statements he circulated were true. Counsel objected to the introduction of a transcript of the proceedings in the case of Sheibley v. Dixon County, supra, as incompetent, irrelevant and immaterial, and moved to have it stricken from the record because the facts upon which it was based were not pleaded in the answer. At the close of taking testimony plaintiff's counsel also asked to have all evidence introduced by defendant stricken from the record, not because the answer was inadequate, but because the evidence itself did not make out a defense to plaintiff's case. Now, if the petition is definite concerning one branch of the case, it is that the libel charged plaintiff with failing to account to Dixon county for fees, that he was sued therefor and judgment rendered against him, and clearly an allegation in the answer that those statements were true was certain enough. None of plaintiff's requests to charge the jury intimate he was claiming that the allegations in the answer did not state a defense to the petition. One ground in the motion for a new trial is that the answer did not state a defense to the petition, but we think, unless the answer can be said to be totally insufficient, that objection came too late in said...