Sorensen v. Wood

• Decision Date: 10 June 1932
• Docket Number: 28107
• Citation: 243 N.W. 82,123 Neb. 348
• Parties: C. A. SORENSEN, APPELLANT, v. RICHARD F. WOOD ET AL., APPELLEES
• Court: Nebraska Supreme Court

243 N.W. 82

123 Neb. 348

C. A. SORENSEN, APPELLANT, v. RICHARD F. WOOD ET AL., APPELLEES

No. 28107

Supreme Court of Nebraska

June 10, 1932

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. The Federal Radio Act (47 USCA § 81 et seq.) confers no privilege to broadcasting stations to publish defamatory utterances.

2. When one writes libelous words concerning another and reads them before the microphone, with the consent of the owner of the broadcasting station and such owner broadcasts those words, the reader and owner unite in the publication of a libel and may be joined as defendants in an action for damages.

3. An action to recover damages for the broadcasting of a defamatory writing is based on libel and not on negligence.

4. That a licensee of a radio broadcasting station is a common carrier within the meaning of the Interstate Commerce Act (49 USCA § 1 et seq.) is not available as a defense under the issues and evidence in this cause.

Appeal from District Court, Lancaster County; Frost, Judge.

Action by C. A. Sorensen against Richard F. Wood and the KFAB Broadcasting Company. Judgment was entered against the individual defendant for nominal damages and in favor of corporate defendant, and plaintiff appeals.

Reversed and remanded.

Perry, Van Pelt & Marti, for appellant.

Max V. Beghtol, Glen H. Foe, J. Lee Rankin and Fred C. Foster, contra.

Lawrence Vold, amicus curiae.

Heard before GOSS, C. J., ROSE, DEAN, DAY and PAINE, JJ., and HORTH, District Judge.

OPINION

GOSS, C. J.

C. A. Sorensen, who was a candidate for reelection as attorney general, brough this action for $ 100,000 damages against Richard F. Wood, who was the speaker, and against KFAB Broadcasting Company, owner and operator of the station over which the speech was broadcast from Lincoln. The jury found in favor of plaintiff as against Wood, assessing damages at one dollar, and found in favor of defendant company. Judgment was entered on the verdict against Wood for one dollar, absolving the broadcasting company from liability and awarding it execution for its costs. Plaintiff appealed.

The petition charged that, about 6:30 p. m., on August 11, 1930, being the evening before the Nebraska primary election, certain false and libelous statements, concerning plaintiff, contained in an article composed and broadcast by Wood, were published and circulated to a large radio audience by means of machinery and equipment supplied by defendant company; that a copy of Wood's address was available for use of the company before its publication over the radio, that a representative of the company introduced and vouched for Wood, was present and heard him read the article and thereby adopted and published said statements; that in the course of reading and publishing said article and, with the intention of injuring plaintiff in his profession and reputation, and for the purpose of making his election to the office of attorney general more difficult, defendants did maliciously publish the following language:

"In his (the plaintiff's) acceptance of the attorney general's office he took an oath before God and man that he would uphold the law justly and honestly. His promises to man are for naught and his oath to God is sacrilege, for he is a nonbeliever, an irreligious libertine, a mad man and a fool."

To show other things contained in the article, together with their connection and innuendo, as alleged by plaintiff, we reproduce three other paragraphs of the petition:

"7th. That in the same article, the defendants, with the same intent and purpose, did maliciously write, read and publish of and concerning the plaintiff, the following language: 'If you see fit to reward me for my efforts for clean government, I will serve you and every section of this state as fearlessly as I have in my dealing with the Judas Iscariots of our state and party,' meaning and giving his hearers to understand that this plaintiff was guilty of treachery, unfairness, baseness, avarice and dishonesty, and that this plaintiff had the attributes of Judas Iscariot.

"8th. That this plaintiff as a part of his official duties as attorney general of the state of Nebraska had prepared, prior to August 11th, an opinion for the use of the secretary of state declaring that the purported filing of George W. Norris of Broken Bow, Nebraska, for nomination on the Republican ticket as United States senator from Nebraska was ineffective, out of time and unlawful; that the defendants, well knowing said facts, nevertheless in said article so composed, written and read after referring to the filing of the said George W. Norris of Broken Bow, and with the same aforesaid intent and purpose, did maliciously write, publish and read: 'It was the act of Sorensen,' meaning, inferring, and giving his listeners to understand that plaintiff had induced and secured the filing of the said George W. Norris of Broken Bow, and then had publicly attacked the validity of that filing, thus using his office and position for the dishonest purpose of deceiving and defrauding the people whom he was elected to serve.

"9th. That the plaintiff as attorney general of the state of Nebraska and as a part of his duties as such official had applied for and secured temporary injunctions against certain gambling places in Omaha, Nebraska, all of which was well known to the defendants and the electors of the state of Nebraska; that the defendants in the aforesaid article maliciously wrote, published and read the following language, with the aforesaid intent and purpose: 'Attorney General Sorensen made public appeal to you on his record of law enforcement. Let me tell you the inside story of his law enforcement in Omaha. You have heard of his injunctions in Omaha. You will remember that his assistant, Mr. Stalmaster, of Omaha, applied for temporary injunctions against gambling places, one of which was run by Gene Livingston, the alcohol baron. Well, these injunctions have not been called up for hearing. They are "statu quo" because of failure on the part of Stalmaster and Sorensen to prosecute them. This, then, explains the big gambling racket of Mr. Sorensen, for while these applications for injunctions are pending, the police of Omaha are helpless in stopping the gambling in these places for they are under the supervision of the attorney general by his having an application on file asking temporary injunction against them. It would be interesting for you to know how many of these buildings harboring gambling houses affected by Sorensen's application for injunctions are owned by Mr. Lapidus of Omaha, the father-in-law of Mr. Stalmaster, who is Sorensen's assistant and who is handling the Omaha end of the Sorensen racket,' meaning, inferring, and giving the listeners to understand that the plaintiff, in violation of his duty and his oath as attorney general of the state of Nebraska, was protecting the gambling interests in Omaha, and was himself a grafter and engaged in the gambling 'racket' or business in said city, and was using his high office to secure temporary injunctions which he then failed to call up for hearing in order to prevent interference by Omaha police with plaintiff's graft and gambling business."

Plaintiff negatived the truth of the foregoing statements and inferences against him, alleging their damaging effect upon him and his reputation and praying judgment against defendants and each of them.

The defendants answered separately. Wood admitted the corporate existence and description of the equipment, functions and nature of service of the company and generally denied the rest of the petition. The company made like admissions and denial, alleged a misjoinder of defendants, pleaded that it was a common carrier of intelligence by wire and wireless under the interstate commerce act, duly licensed and subject to the regulation of the federal radio commission; pleaded general order No. 31 of the commission, dated May 11, 1928 providing that, in broadcasting material for candidates for public office, "such licensee shall have no power of censorship over the material," and that equal opportunities must be afforded legally qualified candidates for any public office in the use of such broadcasting station; that Wood was a candidate for railway commissioner. George W. Norris (then and now United States senator) and W. M. Stebbins were candidates for the Republican nomination for the office of United States senator; that Senator George W. Norris had been permitted to use the broadcasting station to promote his candidacy, and so on August 11, 1930, this defendant permitted W. M. Stebbins to do likewise, and Richard F. Wood was presented by Stebbins to speak on his behalf and was permitted to do so; that this defendant had no knowledge in advance of its utterance as to what the speech was to be except that it was to be a political speech in favor of Stebbins against Senator Norris, nor did this defendant or its agents hear that part of the speech alleged as slanderous, libelous and defamatory, nor did it have any power to censor the speech; that plaintiff had been furnished a copy of the speech in advance, knew its context, was possessed of full knowledge of Wood's intention to utter its words over the radio, gave no notice to either Wood or this defendant of any objection and so is estopped to claim damages; that said words were privileged and invited by plaintiff; that this defendant's first knowledge of any objection by plaintiff was not had until about 11 a. m. the next day, whereupon it announced over its broadcasting station four times that afternoon a statement fully set out in the answer, describing the situation and advising its...