Thorson v. Albert Lea Pub. Co.

• Decision Date: 24 November 1933
• Docket Number: No. 29591.,29591.
• Citation: 190 Minn. 200,251 N.W. 177
• Parties: THORSON v. ALBERT LEA PUB. CO.
• Court: Minnesota Supreme Court

251 N.W. 177

190 Minn. 200

THORSON v. ALBERT LEA PUB. CO.

No. 29591.

Supreme Court of Minnesota.

November 24, 1933.

Appeal from District Court, Freeborn County; Norman E. Peterson, Judge.

Action by Gilbert Thorson against the Albert Lea Publishing Company. From an order denying a motion for judgment notwithstanding the verdict for plaintiff or for a new trial, defendant appeals.

Affirmed.

Meighen, Knudson & Sturtz, of Albert Lea, for appellant.

Moonan & Moonan, of Waseca, for respondent.

HILTON, Justice.

This is a libel action in which plaintiff sought to recover $10,000. The jury returned a verdict in his favor for $250. Defendant appeals from an order denying its blended motion for judgment notwithstanding the verdict or for a new trial.

Defendant is the publisher of a daily newspaper at Albert Lea in Freeborn county, Minn., known as the "Evening Tribune." It consists of fourteen pages, and in its issue of November 12, 1931, on page 3 thereof, appeared the following item:

"On Liquor Charge — On Tuesday night the sheriff's department arrested Gilbert Thorson of 314 Fourth Street on a charge of having liquor in his possession for sale, when he was caught with supply of ten gallons. It was expected that a hearing was to be held sometime this afternoon but at the time of going to press the matter had not been heard."

The paper had a circulation of between 5,000 and 6,000 copies daily, except Sunday, chiefly in the city of Albert Lea and surrounding territory. The circulation was almost wholly by mail and carrier, very few copies being sold by news stands and on the streets. Plaintiff resided at the designated street address. There was no other Gilbert Thorson living in Albert Lea or in Freeborn county. Plaintiff had not committed the offense referred to. The man arrested was a Gilbert Thorson residing in another county, and who later pleaded guilty and was sentenced. Plaintiff was a railroad freighthouse foreman and had lived in Albert Lea for fourteen years at various street addresses. He was a respectable citizen and a member of a local church. He had a wife, a six year old son, and an eleven year old daughter living with him. The latter attended the local schools. As an extra source of income, his wife operated a small grocery for several years, but sold it, and on January 1, 1931, the family moved to the 314 Fourth street address.

The news item was obtained and written by a young lady reporter who was also an assistant editor of the defendant. She was capable and experienced, having been with the paper for over seven years. She obtained her information, except the street address, from the sheriff, who stated to her that Gilbert Thorson had been arrested "in the south part of town" on the evening of November 10th, and that he did not know him. The residence address of plaintiff was in the south part of town. The reporter, who did not know Thorson, examined three directories, one a city telephone directory, one gotten out by a local credit association, and the other a Polk & Co. Freeborn county directory. The only Gilbert Thorson appearing in the directories was this plaintiff. The reporter did not call up any one at the residence of plaintiff, nor at the place of his employment. She did, however, attempt to get in touch with the sheriff in the afternoon, but could not locate him in his office. She made no investigation of the records of the court. A complaint was filed in the justice court some time on the day the article was published. The reporter believed the statements in the article were true; she did not bring it to the attention of the editor before its publication, giving as a reason therefor that he was busy, it was a rush day and the hour for going to press was near at hand, and that in such a situation it was not unusual for her to publish proposed articles without first showing them to the editor. The editor lived five houses from the plaintiff and before that time had lived less than four blocks away from him. Plaintiff and his wife testified that the editor knew them, had traded at their grocery store, and that in meeting plaintiff had called him by name. This was denied.

The same evening of the publication and within an hour after the same, defendant's editor and the reporter responsible for the article learned through plaintiff's wife that her husband was not the person arrested, and made immediate apology and explanation coupled with a promise of correction in the newspaper. In the next evening's issue an apology and retraction was published, which the court instructed the jury constituted, as a matter of law, a full retraction within the terms of the statute (2 Mason's Minn. St. 1927, § 9397). Whether that instruction, favorable as it was to defendant, was correct, we need not here decide. The statute referred to reads: "In an action for damages for the publication of a libel in a newspaper, the plaintiff shall recover no more than special damages, unless a retraction be demanded and refused as hereinafter provided. He shall serve upon the publisher at the principal place of publication, a notice, specifying the statements claimed to be libelous, and requesting that the same be withdrawn. And if a retraction thereof be not published in as conspicuous a place and type in said newspaper as were the statements complained of, in a regular issue thereof published within one week after such service, he may allege such notice, demand, and failure to retract in his complaint, and may recover both special and general damages if his cause of action be maintained. And, if such retraction be so published, he may still recover general damages, unless the defendant shall show that the libelous publication was made in good faith and under a mistake as to the facts. * * *"

A written demand for a retraction was made four days after the libelous publication; no retraction was published after such demand. Defendant in a most laudable and praiseworthy manner attempted to correct the wrong that had been done. The trial court in its charge correctly stated: "There is no evidence in this case of actual malice or intentional wrongdoing."

Defendant makes numerous assignments of error, most of which have to do with the admission of evidence duly objected to and certain instructions given by the court and refusals to give certain requested instructions.

1. The claim that a new trial should be granted because of excessive damages given under the influence of passion and prejudice is not sustainable. If plaintiff was entitled to anything, the verdict cannot be said to be excessive.

2. Over the objection of the defendant, plaintiff was permitted to present proof: (a) That oral repetitions to the wife at her mission circle, at her card club, and at numerous other places had caused her ostracism and distress; (b) of the eleven year old daughter's grief from oral repetitions of the publication by the school children in her room, of the school children pointing their finger at her, and of her crying; (c)...