Silence v. Journal Star Printing Co., 41556

• Decision Date: 07 June 1978
• Docket Number: No. 41556,41556
• Parties: , 3 Media L. Rep. 2550 George N. SILENCE and David J. Vivien, Appellants, impleaded with Johnny's American Inn, Inc., Appellee, v. JOURNAL STAR PRINTING COMPANY et al., Appellees.
• Court: Nebraska Supreme Court

Page 533

266 N.W.2d 533

201 Neb. 159, 3 Media L. Rep. 2550

George N. SILENCE and David J. Vivien, Appellants, impleaded with Johnny's American Inn, Inc., Appellee, v. JOURNAL STAR PRINTING COMPANY et al., Appellees.

No. 41556.

Supreme Court of Nebraska.

June 7, 1978.

Syllabus by the Court

1. The publication complained of in an action for libel must be libelous. In the first instance it is a question of law for the court as to whether a particular publication was libelous.

2. In determining whether the language of a publication was libelous, the statement is to be interpreted in its ordinary and popular sense.

D. C. Bradford, III, and John B. Ashford, of Bradford & Coenen, Omaha, for appellants.

Alan E. Peterson, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellees.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

BOSLAUGH, Justice.

The plaintiffs George N. Silence and David J. Vivien appeal from an order sustaining the defendants' motion for summary judgment as to two causes of action in a suit for libel. The plaintiffs were the owners and operators of a restaurant known as "Here's Johnny's" in Lincoln, Nebraska. Early in the evening of May 19, 1971, Jennie Sousek and Al E. Benes drank some coffee at the plaintiffs' restaurant. Several hours later they became ill. According to a news story published in the Lincoln Evening Journal on May 20, 1971, they were treated at a hospital for having consumed a weak solution of methamphetamine or "speed." A similar news story was published in the Lincoln Star on May 21, 1971, and a longer story in the Sunday Journal and Star on May 23, 1971. The plaintiffs alleged five causes of action against the defendants based upon the publication of the three news stories.

The evidence at the hearing on the motion shows that the information upon which the original stories were based was obtained from a police report and a telephone interview between a newspaper reporter and Dr. Robert L. Heines who had treated Sousek and Benes. The news stories related that, according to the police, Dr. Heines had told the police that the coffee contained a weak solution of methamphetamine or "speed." The plaintiffs alleged that the statement attributed to Dr. Heines was false. The first three causes of action are based upon the news stories published in the Lincoln Evening Journal on May 20, 1971, in the Lincoln Star on May 21, 1971, and in the Sunday Journal and Star on May 23, 1971, which stated that the police said Dr. Heines had said that the coffee had contained a weak solution of methamphetamine or "speed." The motion for summary judgment was overruled as to the first three causes of action.

The fourth cause of action was based upon a statement contained in the news story published in the Sunday Journal and Star that the two police officers, Franklin and Underhill, who had been sent to the restaurant at 12:18 a. m., on May 20, 1971, had reported "that the coffee had already been dumped by the time Miss Sousek contacted Thompson so no sample was obtained for laboratory testing." Thompson was the manager of the restaurant.

The plaintiffs alleged that by stating that the coffee containing "speed" was "dumped," the defendants meant and would be understood by their subscribers and other to mean that plaintiffs sought to destroy evidence.

The fifth cause of action was also based upon a statement contained in the news story published in the Sunday Journal and Star. The story concluded with the following item relating to an incident that had occurred in Omaha, Nebraska:

"LSD in Chocolate

"An incident involving an Omaha girl who allegedly ate an LSD-laced piece of chocolate candy last week raised the question of whether the act of one person in knowingly drugging another, unsuspecting person is punishable under Nebraska law.

"The girl, Marilyn Cleveland, said she found a piece of chocolate candy in her purse May 11, ate it, developed a severe reaction and was hospitalized for 3 1/2 days.

"Although the incident was not officially reported to Omaha police, Deputy Douglas County Attorney Francis Pane said that if a person were charged with drugging someone without his knowledge, he could be punished under the state's drug laws. According to Pane, the person would be guilty of the 'unlawful sale, delivery or other disposition of a depressant or stimulant drug.'

"Conviction for a first offense, according to the state statute, 28-489, would mean a fine from $500 to $3,000, or imprisonment for from two to five years, or both."

The plaintiffs alleged that by heading that part of the article "LSD in Chocolate" and placing it in the story in the manner in which it was done, the defendants meant and would be understood by their subscribers and others to mean that the plaintiffs offered for sale to the public chocolates containing a dangerous drug.

With respect to the fourth cause of action the trial court found the statement that the police officers reported that "the coffee had already been dumped by the time Miss Sousek contacted Thompson" was not libelous, and the plaintiffs' contention that the use of the word "dumped" implied an attempt to cover a criminal act or destroy evidence was illogical and not supported by the publication.

As to the fifth cause of action the trial court found the statements concerning the Omaha incident involving chocolate candy containing...