Shumway v. Warrick
| Decision Date | 12 June 1922 |
| Docket Number | 22045 |
| Citation | 189 N.W. 301,108 Neb. 652 |
| Parties | GRANT L. SHUMWAY, APPELLANT, v. STEPHEN K. WARRICK, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Scotts Bluff county: WILLIAM H WESTOVER, JUDGE. Affirmed.
AFFIRMED.
Burkett Wilson, Brown & Wilson, for appellant.
F. A Wright and Mothersead & York, contra.
Heard before MORRISSEY, C. J., DEAN, ALDRICH, DAY and FLANSBURG, JJ.
Plaintiff filed his petition in libel. Defendant filed a general demurrer. The demurrer was sustained and plaintiff's action dismissed.
The petition contains the following allegations:
(2) That the plaintiff was from January, 1917, to January, 1919, commissioner of public lands and buildings of the state of Nebraska.
(3) That since the first of January, 1919, the plaintiff has been engaged in making financial investments and handling and dealing in real estate and loans for other people, in which business his reputation for honesty, integrity and fair dealing was of great value, and that he had a good reputation in and about Scotts Bluff county for uprightness and probity of character.
(4) That the defendant is a man of great wealth and influence in Scotts Bluff county and surrounding territory, and is president of the First National Bank of Scottsbluff, and by that position he has great influence in the community.
(5) That on or about the 19th day of April, 1919, the plaintiff and others formed a banking association under the name of "Commercial State Bank of Scottsbluff" and adopted articles of incorporation, and on the 8th day of May, 1919, filed with the banking board an application for a charter to do a banking business.
(6) That the plaintiff was at the time of making said application a stockholder in said Commercial State Bank, holding 110 shares of the capital stock thereof of the face value of $ 100 each, and was one of the promoters and organizers of said bank.
(10) That on or about the said 13th day of June, 1919, the defendant wrote and published of and concerning this plaintiff the following false and libelous language, to wit:
"The protestant (meaning the defendant herein) questions the integrity of G. L. Shumway (meaning the plaintiff herein) while he held the office of commissioner of public lands and buildings of the state of Nebraska in connection with the potash industry of Nebraska (meaning and intending thereby to charge, and charging, this plaintiff with malfeasance in the office of commissioner of public lands and buildings of the state of Nebraska)."
(11) Plaintiff says that the language used by the defendant of and concerning this plaintiff as set forth in the tenth paragraph of this petition was contained in a document in the form of a protest, filed in the office of the state banking board of the state of Nebraska, for the purpose of preventing this plaintiff and his associates from obtaining a charter for said bank, and that said protest was filed by the defendant and was uttered and published by the defendant of and concerning the plaintiff.
(12) By reason of the filing of said protest, said libelous matter gained great circulation in the state of Nebraska and in Scotts Bluff county, and was largely copied and circulated by the public press of said county and of said state.
(13) Plaintiff further says that in using, writing, and publishing the said libelous language of and concerning this plaintiff, set forth in the tenth paragraph of this petition, the defendant was impelled and actuated by hatred, ill will, and express malice toward this plaintiff, and that each and all of said charges and insinuations were and are false and were known at the time of their publication to the defendant to be false.
(15) That, by reason of the foregoing facts, the plaintiff was damaged in his good name and reputation to the amount of $ 50,000.
For the purposes of this review the demurrer admits the truth of each and every allegation of the petition that is well pleaded, including the allegation that in writing and publishing the matter complained of defendant was actuated "by hatred, ill will, and express malice, * * * and that each and all of said charges and insinuations were and are false and were known at the time of the publication by defendant to be false."
In addition to the allegations of the petition set out, it contains two other counts. But, disregarding the rule of absolute privilege claimed by defendant, the language used was not actionable, and we, therefore, omit them.
The accusation of malfeasance in office was a serious charge made, as confessed on the record, with malice. "Words which impute a want of integrity to any one holding an office of confidence or trust, whether an office of profit or not are clearly actionable in themselves." Newell, Slander and Libel, (3d ed.) sec. 184. The language used was libelous per se. Defendant relies upon the rule of absolute privilege, and asserts that though the language may be libelous it cannot be made the basis for an action for damages. In order to determine this question it is necessary to consider the functions of the tribunal before which plaintiff's application for a banking charter was pending, and the nature of the proceeding therein. Chapter 6, Rev. St. 1913, being sections 280-345, inclusive, is a comprehensive act creating a banking board and establishing rules and regulations for the organization of banks, issuance of charters thereto, and prescribing general regulations for the conduct of institutions organized under its provisions. Under section 284 a state banking board is created and is given general supervision and control of banks and banking within the state, and it is specifically provided that no person, or persons,...
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