Vifquain v. Finch

• Decision Date: 27 May 1884
• Citation: 19 N.W. 706,15 Neb. 505
• Parties: VICTOR VIFQUAIN ET AL., PLAINTIFFS IN ERROR, v. JOHN B. FINCH, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

19 N.W. 706

15 Neb. 505

VICTOR VIFQUAIN ET AL., PLAINTIFFS IN ERROR, v. JOHN B. FINCH, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 27, 1884

ERROR to the district court for Lancaster county. Tried below before POUND, J.

REVERSED AND REMANDED.

Marquett Deweese & Hall, for plaintiffs in error.

We had the right to open and close. Maxwell Pl. and Pr., 381. Lexington v. Paver, 16 Ohio 330. Heilman v Shanklin, 60 Ind. 443. Tull v. David, 27 Ind 377. Republication in other papers. Hastings v. Stetson, 126 Mass. 329. Gough v. Goldsmith, 44 Wis. 262. Instruction to jury. Sackett, 16. Kendall v. Brown, 74 Ill. 232. Camp v. Phillips, 42 Georgia, 289.

O. P. Mason, for defendant in error, cited: Shaw v. Barnhart, 17 Ind. 185. Jackson v. Pittford, 8 Blackf., 194. Page v. Osgood, 2 Gray, 260. Barrett v. Long, 3 H. L. Cases, 395. Townsend on Libel, § 390. Parmer v. Anderson, 33 Ala. 78. Fry v. Bennett, 28 N.Y. 328. 1 Smith Leading Cases, 132.

MAXWELL, J. COBB, CH. J., and REESE, J., concurring.

OPINION

MAXWELL, J.

On the fourth day of May, 1880, the plaintiffs in error owned and published the Daily State Democrat of Lincoln, in this state, and on that day published in said paper an alleged libel against the defendant, the principal portion of which is the following: "Some time last winter a young girl came to this city from another part of the state for the purpose of attending the university course. Being poor and unable to pay for board, she engaged work in the family of John B. Finch, doing housework morning and evenings and attending the school during the day. She was young and pretty and modest, and any man with a spark of manhood about him would naturally suppose that she would have been safe from insult and lascivious approaches. But it was not the case it seems. The lecherous nature of this man Finch, who was in a measure her protector, could not leave her in peace. Almost from the first hour of her stoppage in his house he began a systematic attempt to induce her to gratify his unholy and shameful desires. By words and deeds and actions he followed up the poor girl, until one evening his conduct became so unbearable that she left the house and went to a neighboring boarding house," etc. There were other charges to which it is unnecessary to refer. The defendant in error brought this action against the plaintiffs to recover the sum of ten thousand dollars for the alleged libel, the alleged libelous matter being set out at length in the petition. The plaintiffs in error (defendants below) in their answer admit that they were the owners and publishers of the Daily Democrat on the fourth day of May, 1880; admit the publication of the alleged libelous words set out in the petition, and allege that said words are true, and that he was "guilty of all that was charged against him in said publication." They also plead in justification public rumor and a want of malice. On the trial of the cause a verdict was rendered in favor of Finch for the sum of $ 500, upon which judgment was rendered.

The first error assigned in this court is, that the defendants below having admitted the publication of the alleged libel and claimed that the words so published were true, that therefore they were entitled to open and close the case.

Sec. 283 of the code provides that, the party who would be defeated if no evidence was given on either side must first produce his evidence. In other words, the party holding the affirmative of the issue is entitled to open and close. If, however, anything remains to be proven affirmatively by the plaintiff he is entitled to open and close. Lexington Ins. Co. v. Paver, 16 Ohio 324. In the fourth paragraph of the answer we find a plea of general rumor as to the matter published, and that the publication was without malice. The answer in this regard must be construed together, and the question of malice was put in issue by the pleadings, and entitled the plaintiff below to open and close.

2. Error in admitting evidence of the publication of the alleged libelous matter in other papers than the Democrat. On his direct examination the plaintiff below testified that the article in question was republished at Lincoln, Illinois and other places. This was objected to, and the objection overruled. The action is brought for the publication of the alleged libelous article in the Democrat of Lincoln, and not in other papers, and the evidence should have been confined to that...