Wertz v. Sprecher
| Decision Date | 05 December 1908 |
| Docket Number | 15,372 |
| Citation | 118 N.W. 1071,82 Neb. 834 |
| Parties | GEORGE W. WERTZ, APPELLANT, v. JOHN C. SPRECHER, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Colfax county: CONRAD HOLLENBECK JUDGE. Reversed.
REVERSED.
George W. Wertz, pro se.
John J Sullivan, contra.
ROOT C. FAWCETT and CALKINS, CC., concur.
Plaintiff is a duly licensed attorney at law residing in Colfax county, and has been engaged in the active practice of his profession for some years past. In 1903 he was elected county attorney for said county. Thereafter defendant published in his newspaper the following article of and concerning plaintiff: Plaintiff brought this action, alleging that said statement was false and maliciously made; that thereby defendant charged him with improperly and corruptly acting in the interests of an individual client against Colfax county, and that he was guilty of unprofessional conduct and malfeasance in office. Defendant admitted that plaintiff was a duly licensed attorney at law in Nebraska and county attorney of Colfax county, and that defendant published said article, but alleged that the same was true, and denied all other statements in the petition. Upon motion, defendant answered with particularity that preceding plaintiff's election he had represented one Dunkle in resisting a claim of Colfax county; that after plaintiff's election he represented both Dunkle and said county in compromising said demand, and represented Dunkle in filing a confession of judgment in favor of the county for the amount of that compromise. Plaintiff replied, denying all allegations in the answer. The court charged the jury that the publication was libelous per se, to which defendant did not except, nor complain in this court, so that we will accept the interpretation of the learned trial judge. Plaintiff, in a motion for judgment on the pleadings, by objections to the introduction of defendant's evidence, by moving for a verdict, and by excepting to the instructions, challenged the sufficiency of said answer. The court denied all of said motions, and instructed the jurors that, if they found from the evidence that the statements in the publication were true, they should find for the defendant. Defendant prevailed, and plaintiff appeals.
Defendant has not appeared in this court, and we are somewhat embarrassed by the lack of argument of brief to support his theory of the case. However, this record squarely presents for our consideration the value of the truth of an article as a defense in a civil action for libel, or whether, in addition thereto, a defendant must plead and prove good motives and justifiable ends to complete his defense. In Pokrok Zapadu Publishing Co. v. Ziskovsky, 42 Neb. 64, 60 N.W. 358, we held that the verity of the publication alone was not a sufficient defense in a civil suit for libel, but that the further elements of good motives and justifiable ends must be made to appear to exonerate defendant. We confirmed that decision in Neilson v. Jensen, 56 Neb. 430, 76 N.W. 866. In the opinion of Mr. Justice SULLIVAN in Larsen v. Cox, 68 Neb. 44, 93 N.W. 1011, there is an intimation that the rule is not correctly stated in Pokrok Zapadu Publishing Co. v. Zizkovsky and Neilson v. Jensen, supra, and much dependence is placed upon the opinion of Mr. Chief Justice Horton in Castle v. Houston, 19 Kan. 417, to justify the criticism made upon our former holdings. Larson v. Cox, supra, was a slander suit, and all of the suggestions therein concerning a defense in libel cases is dictum merely. The learning of the author of that opinion is such that his statements have caused practitioners to doubt somewhat the former decisions of this court, and possibly said opinion had a potent influence in inducing the learned counsel for the defense in the instant case to omit from his answer the allegations of good motives and justifiable ends, and not to mention in his evidence proof of those elements of a defense. Mr. Chief Justice Horton in Castle v. Houston, supra, was correct in stating that the decision of the New York supreme court in People v. Croswell, 3 Johns. Cas. (N.Y.) 336, that the truth of a libel would not be received as any part of a justification in criminal prosecutions for libel, caused state legislatures and constitutional conventions thereafter to provide by statutory or fundamental law that the old harsh maxim of the common law in such cases should give way to a more merciful, just and rational rule.
The third subdivision of the bill of rights in the constitution of 1866 provided: It will be noticed that reference is not made therein to the truth of a publication as a defense in civil actions, and it is likely that the framers of said article understood and believed, as they properly might, that action on their part was not necessary to make the truth alone a defense in civil suits for libel. The fifth section of our present bill of rights reads: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense." Now if it was not the intention of the men who formed the constitutional convention in 1875 to compel the defendant in civil as well as criminal cases, if he attempted to justify, to prove good motives and justifiable ends, as well as the truth of his charges in publishing a libel, the inclusion of the words "both civil" in the later constitution was and is senseless and surplusage. The same amendment was proposed in the constitution prepared in 1871, but not ratified by the people. It was adopted by the convention without debate, and with the sole amendment of the word "for" next preceding the word "justifiable." 1 Nebraska Constitutional Conventions, pp. 205, 219, 220, 506. The individuals who formed the body of those...
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