Walker v. Bee-News Publishing Company
| Decision Date | 10 February 1932 |
| Docket Number | 28132 |
| Citation | 240 N.W. 579,122 Neb. 511 |
| Parties | THOMAS H. WALKER, APPELLANT, v. BEE-NEWS PUBLISHING COMPANY, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES E FOSTER, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A newspaper cannot avoid responsibility in a libel suit by proving that a reporter, by mistake, used the wrong person's name. The real question is not, at whom was the article aimed, but who did it injure.
2. In such cases, the law looks at the tendency and consequences of the publication, and not at the intention of the publisher who may be held to answer for negligent wrongs, as well as those that are intentional.
3. Words are libelous per se when they charge a criminal offense involving moral turpitude, but to state in error that a wrestling match was held in one's barn does not constitute such libel.
4. Words are libelous per se when they charge an offense which blackens one's character and exposes him to public ridicule, but the evidence in this case fails to sustain that charge.
Appeal from District Court, Douglas County; Foster, Judge.
Action by Thomas H. Walker against the Bee-News Publishing Company and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
R. H. Olmsted, for appellant.
Kennedy, Holland & De Lacy, contra.
Heard before GOSS, C. J., DEAN and PAINE, JJ., and BROADY and RHOADES, District Judges.
This is a libel suit, in which Thomas H. Walker, appellant, sought to recover $ 10,000 damages from the Bee-News Publishing Company, of Omaha, appellee. The court, at the close of the testimony, and after each party had rested, sustained the motion of the appellee for a directed verdict.
Upon March 29, 1929, the Bee-News published in its home edition a large flashlight picture, reaching across four columns, showing a wrestling match in a barn loft. The picture shows some 40 people, including a number of girls, all much interested in the bout. The large-type headline above the picture reads: "Battle in Barn-Days of Old Live Again." In the half-column news write-up under the picture, we find this paragraph: To attract attention to this unimportant event, a semi-ludicrous write-up described the meet, at which no admission was charged, and added: This libel suit is brought because the reporter inadvertently was in error in stating that the event occurred in "Tom Walker's barn," whereas it was actually held in the barn of D. H. Walker, a few miles away. Appellant contends that said publication was wholly false, and injured appellant's good name and reputation as a citizen, husband and father, and subjected him to ridicule, ignominy and shame.
It is insisted that the large-type heading, heretofore set out, must first be considered, but we find nothing therein libelous. Sheibley v. Nelson, 75 Neb. 804, 106 N.W. 1034; Fitch v. Daily News Publishing Co., 116 Neb. 474, 217 N.W. 947.
1. 2. Where one's name is used by mistake, it has been held that there would be no right of action for libel, although the article would be libelous if it was intended to refer to him. Such was the holding in Hanson v. Globe Newspaper Co., 159 Mass. 293, 20 L.R.A. 856, 34 N.E. 462. However, in examining this case, which was decided in 1893, we find a very vigorous dissenting opinion of Justice Oliver Wendell Holmes, then a member of the Massachusetts supreme court. The news article described the conduct of a prisoner under arrest, and named him as H. P. Hanson, a well-known real estate broker, of South Boston. The man who was actually under arrest and fined was A. P. H. Hanson. Justice Holmes, who was not alone in his dissent, insisted that, if an article should allege falsely that A murdered B with a knife, it would not be a very satisfactory answer to a question by A that the article was a description of the conduct of the murderer of B and was true concerning that murderer. He insists that the words used in the article describe the plaintiff, H. P. Hanson, and no one else, and, while the defendant did not intend them to apply to him, the question narrows down to whether such want of intention is enough to constitute a defense against an action for libel, and he cites many early cases from the English courts which hold that one is responsible for negligent wrongs, as well as for those which are intentional.
The leading English case upon this point appears to be E. Hulton & Co. v. Jones (1910) App. Cas. (Eng.) 20, 79 L.J.K.B. 198, 16 A. & E. Ann. Cas. 166. E. Hulton & Co., owners of the Sunday Chronicle, in publishing an article concerning the crowds at a motor race at Dieppe, purported to describe the doings and behavior of various types of Englishmen abroad, and the defamatory portion of the article referred to Artemus Jones, a supposedly fictitious person, but there really existed a Mr. Artemus Jones, a barrister, who had in times past published articles over his name in this same Sunday Chronicle. He at once sued for libel, and a jury at Manchester returned a verdict of 1,750 L. (pounds) damages. On appeal, Lord Alverson, C. J., of the court of appeals, reached the same conclusion as Justice Holmes did in Hanson v. Globe Newspaper Co., supra, and affirmed the judgment. There being dissent, it was taken to the House of Lords, where, upon December 6, 1909, it was held that, in an action for libel against the owners of a newspaper who published a defamatory article containing plaintiff's name, the fact that neither the writer of the article nor the editor of the paper had ever heard of the plaintiff, and had no intention of referring to him, and believed the name referred to an imaginary person, was no defense if the circumstances were such that persons who read the article would reasonably think that the language referred, not to an imaginary person, but to a real person, and that those among them who knew the plaintiff would reasonably suppose the language to refer to him.
In Colorado and Kansas cases, it was held: Switzer v. Anthony, 71 Colo. 291, 206 P. 391. See Hatfield v. Gazette Printing Co., 103 Kan. 513, 175 P. 382. Judge Pound, in a leading New York case, held that the fact that a publisher of libelous matter has no actual intention to defame a particular man, or to injure any one, does not prevent recovery of compensatory damages. Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 10 A. L. R. 662, 126 N.E. 260. See Cassidy v. Daily Mirror Newspapers, 2 L. R. K. B. (Eng.) 331, 69 A. L. R. 720.
As Lord Chief Justice Coleridge said in Gibson v. Evans, 23 QB 384, it does not signify what the writer meant; the question is, whether the alleged libel was so published by the defendant that the world would apply it to the plaintiff.
An instruction in an action for libel that if, in a circular charging stealing, plaintiff's name "R. Laudati" was used instead of "N. Laudati" as the result of negligence merely, and not intentionally, plaintif...
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