Sheibley v. Nelson

• Decision Date: 07 May 1909
• Docket Number: No. 15,364.,15,364.
• Citation: 84 Neb. 393,121 N.W. 458
• Parties: SHEIBLEY v. NELSON.
• Court: Nebraska Supreme Court

84 Neb. 393

121 N.W. 458

SHEIBLEY

v.NELSON.

No. 15,364.

Supreme Court of Nebraska.

May 7, 1909.

Syllabus by the Court.

If a defendant admits the publication of an article libelous per se, but alleges that his statements are true, it is error to charge the jury, in effect, that the burden is on plaintiff to prove malice and damages.

If a defendant denies that he published a libel of and concerning plaintiff, he will not be permitted to prove the truth of his publication.

Hearsay evidence, tending to prove an issue, if admitted without objections, may sustain a verdict; its probative force being for the jury, and not the court, to determine.

If any competent evidence concerning a material fact is introduced on the trial of a case, it is error for the court to instruct the jury that there is not any evidence on said point.

Where it becomes material to ascertain whether a woman was assaulted and the identity of the person who attacked her, evidence of her appearance at the time she was fleeing from her assailant and seeking shelter in a neighbor's house, and her spontaneous declarations with regard to the transactions, is admissible as part of the res gestæ.

Commissioners' Opinion. Appeal from District Court, Cedar County; Welch, Judge.

Action by Thomas J. Sheibley, revived in the name of Anna W. Sheibley, administratrix, against George L. Nelson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See, also, 119 N. W. 1124.

Reese, C. J., dissenting.

W. E. Gantt, for appellant.

J. J. McCarthy and J. V. Pearson, for appellee.

ROOT, C.

The pleadings in this case are referred to at length in an opinion of Mr. Commissioner Duffie on a former appeal to this court. 75 Neb. 804, 106 N. W. 1034. Upon the second trial a jury found for defendant, and plaintiff again appeals.

1. In its fourth instruction the court informed the jury “that the burden of proof is on the plaintiff to prove by a preponderance of the evidence all the allegations of his petition which are not admitted by the answer”; and in its second instruction told them that the answer admitted the publication, but denied that it was published “falsely, wickedly, or maliciously or with intent to injure or defame plaintiff,” but charges that, in so far as it referred to plaintiff, the same was true. On the former appeal it was held that the article was libelous per se. Since that opinion was written section 47d of the Criminal Code, which attempted to provide penalties for blackmail, etc., has been held void in Greene v. State (Neb.) 119 N. W. 6, but section 46 of said Code, defining blackmail, still exists. Independent of any statute, the popular definition of the word “blackmailer” describes an odious creature. We are still of opinion that to print and circulate a statement that one is a blackmailer, and has been guilty of circulating false, malicious, and blackmailing stories of and concerning another person, is libelous per se. On the trial of the case plaintiff admitted that he had never resided in Cedar county, and had never affiliated with the Fusion Party. The term “Fusionist” has a well-known meaning in Nebraska, and is descriptive of those individuals who support candidates for elective offices nominated by the joint action of electors of the Democratic and People's Independent Parties, or their representatives. So much of the alleged libel as referred to the fusionists of Cedar county was therefore immaterial. There remained, then, for consideration the charges that plaintiff was a blackmailer, and had circulated false, malicious, and slanderous stories concerning McCarthy. The justification is indefinite, so that it is extremely difficult, if not impossible, to say from an inspection of the pleadings what was admitted and what denied. The rule is well settled that a defendant may justify as to part of the charge, provided such part contains a distinct imputation which can be separated from the rest. Odgers on Slander and Libel (4th Ed.) p. 180. Plaintiff did not by motion or demurrer test the sufficiency of the answer, and the trial proceeded on the evident theory that the parties and the court assumed that the answer amounted to a partial justification.

2. The alleged libel contains several charges, and defendant should have plainly indicated the part thereof he claimed was true. The Franz transaction referred to in the affidavit of McLean and more fully detailed in Mrs. Franz' affidavit seems to have been one of the slanderous stories referred to in the publication. Malice in law will be presumed from the publication of an article libelous per se, and that presumption will become conclusive unless the truth of the libel is established. Such malice does not mean hatred or ill will, but the want of legal excuse for the publication. Damages will also be presumed from the publication of an article libelous per se. Bee Publishing Co. v. World Publishing Co., 59 Neb. 713, 82 N. W. 28;Sheibley v. Fales, 75 Neb. 823, 106 N. W. 1032;Prewitt v. Wilson, 128 Iowa, 198, 103 N. W. 366;Conroy v. Pittsburg Times, 139 Pa. 334, 21 Atl. 154, 11 L. R. A. 725, 23 Am. St. Rep. 188, 189;Childers v. San Jose, M. P. P. Co., 105 Cal. 284, 38 Pac. 903, 45 Am. St. Rep. 41. If the defendant justified the publication of the charge that plaintiff was a blackmailer, or that he was guilty of circulating the aforesaid slanders and failed in the proof, both defendant's malice and plaintiff's damage would be presumed. The record discloses that defendant did offer evidence to prove that plaintiff was guilty of circulating such stories, and the fourth instruction given was erroneous.

3. The...