Tennyson v. Werthman

• Decision Date: 17 October 1958
• Docket Number: No. 34413,34413
• Citation: 92 N.W.2d 559,167 Neb. 208
• Parties: Vernon Wayne TENNYSON, doing business as Rapid City Color Laboratories, Appellant, v. Al J. WERTHMAN, Appellee.
• Court: Nebraska Supreme Court

Page 559

92 N.W.2d 559

167 Neb. 208

Vernon Wayne TENNYSON, doing business as Rapid City Color Laboratories, Appellant, v. Al J. WERTHMAN, Appellee.

No. 34413.

Supreme Court of Nebraska.

Oct. 17, 1958.

Syllabus by the Court.

1. An action for libel must be commenced within 1 year of the publication of the defamatory matter, the basis of the action.

2. The statute of limitations is not tolled as to an amended petition which alleges a new and different cause of action but the statute of limitations against the cause of action pleaded in the amended petition runs until the filing of that pleading.

3. An amended pleading which amplifies, expands, clarifies, or elaborates with greater fullness of detail than was alleged in the original pleading does not state a new and different cause of action.

4. In deciding the correctness of a ruling on a demurrer to a pleading, only allegations of fact in the pleading to which it is directed may be considered.

5. A petition, to be sufficient to charge a cause of action for libel, which does not contain an allegation of special damage. must aver a publication which is libelous per se.

6. A demurrer to a petition charging a libel admits the allegations of the petition and the implications following naturally from the publication.

7. The language of an alleged libel should be interpreted in its ordinary and popular meaning according to the sense in which it would be understood by the readers to whom it was addressed.

8. Any language, the nature and meaning of which are to impute to a person the commission of a crime or to subject him to public ridicule, ignominy, or disgrace, is libelous per se.

Reeker, Tews & McFadden, Daniel D. Jewell, Norfolk, for appellant.

Philip H. Robinson, Hartington, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

The substance of the petition of appellant is that the appellee published and distributed through the United States mail on or about May 12, 1955, libelous matter concerning appellant, to wit: 'P.S. ONE OF THESE KIDNAPPERS (TRAVELING PHOTOGRAPHERS) IS SETTING UP SHOP ONE DAY DURING THE WEEK OF MAY 22 IN THE HARTINGTON HOTEL BUILDING IN HARTINGTON. THERE WILL BE OTHERS. REMEMBER--YOU HAVE BEEN WARNED.' Appellant and appellee were business rivals and the object of appellee in publishing the libelous matter concerning appellant was to injure his business and build up the business of appellee. The libelous matter was extensively circulated and caused appellant large damage, injuring his business and reputation in the sum of $30,000 for which he prayed judgment against appellee.

The amended petition of appellant states: He was at the times mentioned a traveling photographer engaged in that business using the name Rapid City Color Laboratories. In 1955 and for several years prior thereto he had operated his business in Hartington, Nebraska, during several weeks each year. Appellee was at the time stated in the pleading engaged in the photography business in the designated city. Appellee published and distributed through the United States mail on or about May 12, 1955, libelous handbills which stated: 'P.S. One of these kidnappers (Traveling Photographers) is setting up shop one day during the week of May 22 in the Hartington Hotel Building in Hartington. There will be others. Remember--YOU HAVE BEEN WARNED:' A copy of one of the handbills was attached to and made a part of the pleading. Appellant and appellee were business rivals and the libelous matter was published and circulated concerning appellant for the purpose of injuring his business and increasing the business of appellee. The libelous matter was extensively circulated and has caused appellant large damage by injuring his business and reputation in the sum of $30,000 for which he prayed judgment against appellee.

A motion of appellee to strike the amended petition of appellant because it stated a new cause of action, was a departure from the one pleaded in the original petition, and was barred by the statute of limitations when the amended petition was filed was sustained by the trial court and the amended petition stricken from the record of the case. A general demurrer of appellee to the original petition of appellant was then sustained. Appellant elected not to plead further and a judgment of dismissal of the case was rendered. The present appeal was occasioned by that action of the trial court.

The amended petition was stricken from the record because the hypothesis of appellee was accepted by the trial court that it stated a new and different cause of action than that claimed to be stated in the original petition; that the petition did not state a cause of action and therefore it was not effective to toll the statute of limitations; and that more than 1 year had elapsed between the publication of the alleged libel, May 12, 1955, and the filing of the amended petition, November 8, 1956. If this hypothesis was true, the ruling of the court was correct when it eliminated the amended petition from the case. An action for libel must be commenced within 1 year of the publication of the defamatory matter, the basis of the action. Section 25-208, R.R.S.1943; Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686. The statute of limitations is not tolled as to an amendment to a petition which alleges a new and different cause of action. If the facts incorporated into a petition by amendment constitute a cause of action independent from that stated in the original petition, the statute of limitations against the cause of action pleaded in the amendment runs until the filing of such amended petition. Buerstetta v. Tecumseh Nat. Bank, 57 Neb. 504, 77 N.W. 1094.

The petition in the first paragraph alleges the publication by appellee of the libelous matter relied upon by the pleader, and the time of the publication. The second paragraph states the libelous matter quoted in the first paragraph was published of and concerning appellant, who was a rival in business of appellee, to injure appellant in his business and to benefit appellee in his business. The concluding paragraph of the pleading asserts wide publication and distribution of the alleged libelous matter with resulting injury to the reputation of appellant and damages in a specified amount.

The first two paragraphs of the amended petition state the nature, character, and location of the business of each of the parties in detail and more fully than the statement of the original petition that they were business rivals. There was an inference or implication from the allegation that they were business rivals and the identification of appellant as a traveling photographer in the libelous matter that each was engaged in the photography business, as is alleged in the amended petition. The identical alleged libelous matter quoted in the petition is repeated in paragraph 3 of the amended petition, and the entire handbill containing the quoted matter was made by proper statement a part of the amended petition. The identical libel and publication alleged in the petition are repeated in the amended petition. The matter alleged in paragraph 4 of it is the same as paragraph 2 of the petition except the first sentence thereof which was omitted as surplusage because it was properly a matter of defense. Paragraph 5 of the amended petition is in substance and legal effect identical with paragraph 3 of the original petition.

An amended petition which only amplifies, clarifies, or gives greater fullness of detail than is alleged in the original pleading does not state a new cause of action. The amended petition is of this character. It preserves in all respects the identity and characteristics of the identical cause of action alleged in the petition. There was but one libel and one cause of action alleged in the two petitions.

Zitnik v. Union Pac. R. Co., 95 Neb. 152, 145 N.W. 344, 345, states: 'The amended petition merely amplified and set out more specifically the various acts of omission and commission of the defendant which it is claimed were included in the general allegations of negligence in the original petition. We think this is permissible, and that the amplification of the charge did not constitute the bringing of a new action for a different cause.' In...