Spriggs v. Cheyenne Newspapers, Inc., 2349

• Decision Date: 01 July 1947
• Docket Number: 2349
• Citation: 182 P.2d 801,63 Wyo. 416
• Parties: JOHN J. SPRIGGS, Plaintiff and Appellant, v. THE CHEYENNE NEWSPAPERS, INC., a Corporation, Defendant and Respondent
• Court: Wyoming Supreme Court

182 P.2d 801

63 Wyo. 416

JOHN J. SPRIGGS, Plaintiff and Appellant, v. THE CHEYENNE NEWSPAPERS, INC., a Corporation, Defendant and Respondent

No. 2349

Supreme Court of Wyoming

July 1, 1947

APPEAL from District Court, Laramie County; JAMES H. BURGESS, Judge.

Action for alleged libel by John J. Spriggs against the Cheyenne Newspapers, Inc. From an adverse judgment plaintiff appeals.

Affirmed.

For the plaintiff and appellant the cause was submitted upon the brief and also oral argument of the appellant, John J Spriggs of Lander, Wyoming, appearing pro se.

POINTS OF COUNSEL FOR APPELLANT

Under the constitutional guaranty of Section 20, Article 1, Wyo Const., it was for the jury to say if the libel was true, and if the publication was made with good intent and for justifiable ends. Bohlen on Torts, 4th Ed. Page 912; Nixon v. Publishing Co., 101 Minn. 309, 12 L. R. A N. S. 189, and annotations therein; Mannix v. Portland Telegram, 23 P. 2nd. 133, 90 A. L. R. 61; Brown v Glove Printing Co. (Mo.) 112 S.W. 464; Washington Times v. Bonner, Dist. of Columbia Ct. of Appeals, 86 F. 2nd. 836, 110 A. L. R. 393 and Annotations; Harrington v. Butte Minor Co. (Mont.) 139 P. 451; State v. Verry, 36 Kan. 416, 13 P. 838; Deiner v. Star Telegram (Mo.) 230 Mo. 613, 132 S.W. 1143, 33 L. R. A. N. S. 217; Murray v. Braneate, 290 N.Y. 52, 146 A. L. R. 908.

To publish as news is not in the discharge of any duty to the public. Republican Pub. Co. v. Conroy (Colo.) 38 P. 432.

Malice is a wrongful act--intentionally done--and presumed. Childers v. San Jose Mercury Printing Co. (Cal.) 38 P. 903; Turner v. Hearst (Cal.) 47 P. 129; Good v. Higgins (Kan.) 161 P. 673.

Repeating without investigation is evidence of malice itself. Beshiers v. Allen (Okla.) 148 P. 143; Davis v. Hearst, 160 Cal. 143, 116 P. 530; Scott v. Times Mirrow Co. (Cal.) 184 P. 672; Childers v. San Jose Mercury Printing Co. (Cal.) 38 P. 903.

Malice need not be alleged or proven. Hollenbeck v. Post Intelligencer Co. (Wash.) 297 P. 793.

The right to comment on public acts and public men is the right of every citizen and is not the peculiar privilege of the press. Deiner v. Starr Chronicle, 230 Mo. 613, 33 L. R. A. N. S. 217.

Good faith is not enough. Thorson v. Alberta Publishing Co., 90 A. L. R. 1173; Scott v. Times Mirrow Co., 184 P. 672; Kelley v. Independent P. Co., 122 P. 737; Nurata v. Los Angeles N. P. Co., 40 P. 2nd. 521.

News defense is no defense. Republican P. Co. v. Conroy, 38 P. 432; German American Ins. Co. v. Huntley, 161 P. 817. The newspaper publication cannot be justified. Holden v. American News Co., 52 F.Supp. 28.

For the defendant and respondent the cause was submitted upon the brief of J. A. Greenwood and Milton D. Nelson of Cheyenne, Wyoming and oral argument by Mr. Greenwood.

POINTS OF COUNSEL FOR RESPONDENT

It is a general rule of wide application that an appellate court will indulge all reasonable presumptions in favor of the correctness of the judgment, order, or decree from which the appeal was taken. O'Mally v. Eagan, 2 P.2d 1063, 43 Wyo. 233, 77 A. L. R. 582, rehearing denied O'Mally v. Eagan, 5 P.2d 276, 43 Wyo. 350; McCague Inv. Co. v. Mallin, 147 P. 507, 23 Wyo. 201; 5 C. J. S. Appeal & Error, Sec. 1533.

Where the evidence is conflicting and there is substantial evidence to support the finding and judgment of the trial court, the appellate court will not undertake to substitute its own conclusions in favor of those reached by the triers of fact in the district court. Swanson v. Johnson, 1941, 58 Wyo. 1, 122 P.2d 423; Foley v. Hassey, 1939, 55 Wyo. 24, 29, 95 P.2d 85; Murphy v. Livestock Co., 1920, 26 Wyo. 455, 463, 468, 187 P. 187, 189 P. 857, 20 A. L. R. 290; Laverents v. Gattis, 1944, Wyo., 150 P.2d 867, 872; Long v. Forbes, 1943, 58 Wyo. 533, 543, 546, 136 P.2d 242, 158 A. L. R. 224.

Courts are most lenient in allowing a wide latitude in opening statements. 53 A. J. 357, Trial, Sec. 457.

Limiting the time to be used by counsel in argument is within the sound discretion of the trial court, which is not subject to review by a higher tribunal unless abused. 3 A. J. 534, Sec. 973.

Appellant cannot assert for first time on appeal that the remarks of the Court were prejudicial and constituted error. 53 A. J. Trial, Sec. 92; Bancrofts' Code Practice & Remedies, Vol. 2, Page 1852; State v. Hyde, 234 Mo. 200, 136 S.W. 316; Snyder v. Mass., 1934, 291 U.S. 97, 78 L.Ed. 674, 90 A. L. R. 575; Ward v. DeMartini, 1930, 108 Cal. A. 745, 292 P. 192, 194; Price v. Northern Electric Ry. Co., 168 173, 142 P. 91, 95; Foley v. Hornung, 35 Cal.App. 304, 169 P. 705, 709.

The manner and extent of examination of prospective jurors rests to a large extent in the sound discretion of the Judge, the exercise of which will not be disturbed except in a clear case of abuse. Bancroft's Code Pleading & Practice, 10 Yr. Supp. Vol. 3, Sec. 1142; 3 A. J. 531, Appeal and Error, Sec. 970; 31 A. J. Jury, Secs. 106 and 107; Abbott's Civil Jury Trials, 5th Ed., Sec. 66.

In the absence of statutory direction, it is in a great measure left to the sound discretion of the court as to what papers, books, other matters of evidence, or instructions the jury shall be permitted to carry with them to their room upon retiring. Bancroft's Code Practice & Remedies, Vol. 2, Sec. 1530, Page 2004.

The basic law of libel is contained in the Wyoming Constitution in Sec. 20 of Article I: "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and for justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law under direction of the court."

An attorney is an officer of the court, and, as such, is a public official. 7 C. J. S. Sec. 4, P. 706.

The power to discipline and disbar an attorney is inherent in the courts, and such a power is judicial in its nature. 7 C. J. S. Sec. 18, Page 728; Conley v. U.S. 59 F.2d 929.

Disciplinary or disbarment proceedings are judicial actions. Board of Law Examiners v. Brown, 53 Wyo. 42, 77 P.2d 626.

The general rule is that the reporting of a judicial proceeding carries with it a conditional privilege. Mannex v. Portland Telegram, 144 Ore. 172, 23 P.2d 138, 90 A. L. R. 55.

Matters of public interest and concern are legitimate subjects of criticism, and everyone has a right to comment thereon as long as he does so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are made maliciously. 33 A. J. Libel & Slander, Sec. 161.

OPINION

ON MOTION TO DISMISS

PER CURIAM.

The appellant has filed a motion seeking to have this court make an order striking respondent's brief from the files because, as appellant claims, it contains improper material reflecting upon the "character, honor, and rights of the plaintiff and appellant" herein. This motion was argued at the same time the hearing on the merits of this case was had. There was language used by counsel for each of the respective parties which doubtless could very well have been omitted from their briefs. It did not aid the court in determining the questions presented by the record. It is perhaps possible that some of the language employed in appellant's brief may have provoked what is complained of in this motion made by him. However, we may say that we have not been influenced by any of this material but have disregarded intemperate language wherever found. The reporter of the decisions of this court in reviewing the briefs of both parties will undoubtedly bear in mind and report only the arguments advanced by the parties. Thus improper language will not be preserved. We think, therefore that the appellant's motion should not be sustained and the court deprived of the aid of respondent's counsel's view in the disposition of the case at bar. People ex rel Board of Commissioners vs. Parks, 26 Colo. 322, 57 P. 692; Cox et al vs. Aetna Casualty & Surety Co. of Hartford, Conn., 286 Ill.App. 515, 3 N.E.2d 964; Cox vs. Wood, 247 U.S. 3, 38 S.Ct. 421, 62 L.Ed. 947.

ON THE MERITS

The district court of Laramie County rendered a judgment upon the verdict of a jury against the plaintiff John J. Spriggs and in favor of the defendant, the Cheyenne Newspapers, Inc. The action was one for alleged libel because of the publication of certain Associated Press and United Press dispatches by two newspapers owned and operated by the defendant. The parties hereto will be ordinarily mentioned hereinafter as they were designated in the district court or as appellant and respondent respectively.

The first dispatch published by the defendant was one that appeared in the issue of June 14, 1943 of the Wyoming State Tribune, that newspaper being a daily publication customarily distributed to the public locally in the afternoon and being one of the two newspapers mentioned above. The dispatch thus printed and published reads as follows:

"ACTION ASKS DISBARMENT OF SPRIGGS

Lander Attorney Named in Suit

"Lander Wyo.--(AP)--The state board of law examiners seeks the disbarment of John J. Spriggs, Lander attorney who sought nomination to run for supreme court justice in the 1942 primary election.

"He was named respondent in an action filed Saturday by the board in Fremont county district court. The proceeding was instituted by Attorney General Louis J. O'Marr at the request of the board, the president and secretary of which, C. A. Zaring, Basin, and L. C. Sampson, Cheyenne, signed the court complaint.

"The complaint charged that during the primary campaign in July 1942, Spriggs 'prepared and circulated among citizens of Wyoming a...