Williams v. Standard-Examiner Pub. Co.

• Decision Date: 28 November 1933
• Docket Number: 5106
• Citation: 83 Utah 31,27 P.2d 1
• Court: Utah Supreme Court
• Parties: WILLIAMS v. STANDARD-EXAMINER PUB. CO. et al

27 P.2d 1

83 Utah 31

WILLIAMS v. STANDARD-EXAMINER PUB. CO. et al

No. 5106

Supreme Court of Utah

November 28, 1933

Appeal from District Court, Second District, Weber County; Geo. S Barker, Judge.

Action by Fred E. Williams against Standard-Examiner Publishing Company and others. From an adverse judgment, named defendant appeals.

REVERSED AND REMANDED, WITH DIRECTIONS.

George C. Buckle, of Ogden, for appellant.

Stuart P. Dobbs, of Ogden, for respondent.

ELIAS HANSEN, J. FOLLAND, EPHRAIM HANSON, and MOFFAT, JJ., STRAUP Chief Justice, concurring.

OPINION

ELIAS HANSEN, J.

This action was brought by the plaintiff to recover from the defendants damages because of the alleged false and defamatory publication on July 14, 1929, of an article in a newspaper, known as the Standard-Examiner, owned by the defendant Standard-Examiner Publishing Company, a corporation. The trial resulted in the plaintiff securing a verdict and judgment against the defendant corporation for the sum of $ 3,000. A verdict of no cause of action was returned by the jury as to the defendants Abraham L. Glasmann, Joseph U. Eldredge, Jr., and James P. Casey. The defendant corporation appeals. Its assignments of error attack the judgment appealed from upon the following grounds: That the evidence does not support the verdict and judgment; that the trial court erred in the reception and rejection of evidence; in the instructions given to the jury; in refusing to give certain of appellant's requested instructions; and that the court erred in refusing to grant appellant a new trial. The insufficiency of the evidence to support a verdict for the plaintiff was raised in the court below by a motion for a nonsuit at the conclusion of plaintiff's evidence in chief and by a motion for a directed verdict for the defendants and each of them at the conclusion of all of the evidence. The motions were based upon defendants' claim that the publication complained of was shown by the evidence to be a qualifiedly or conditionally privileged communication and as such required proof of actual malice on the part of the defendants and that no such proof was offered, and upon the further ground that the evidence showed that the facts stated in the publication were true, and that the comments and criticisms appearing in the publication were true, and that the comments and criticisms appearing in the publication were true, and that the comments and criticisms appearing in the publication were fair and proper. Both motions were denied. Appellant assigns such rulings as error.

In the main the pleadings of the parties and the evidence given in support thereof agree upon the facts which occasioned the publication concerning which plaintiff complains. The following facts are either alleged and admitted in the pleadings or established by uncontradicted evidence: The defendant Standard-Examiner Publishing Company is a Utah corporation. For many years past it has printed and published a daily newspaper at Ogden, Utah. The paper, known as the Ogden Standard-Examiner, had an extensive circulation in Ogden City and Weber county, Utah. A few papers were sent to other parts of the state and neighboring states. The defendants Joseph U. Eldredge, Jr., James P. Casey, and Abraham L. Glasmann were, at the time mentioned in the complaint and at the time of the trial, the general manager, the associate general manager, and the editor, respectively, of the defendant corporation. During the years 1928 and 1929 plaintiff was one of the duly elected, qualified, and acting members of the board of commissioners of Ogden City, Utah. Soon after he qualified as a city commissioner he was assigned to the duty of supervising the waterworks department of the city. He continued in charge of that department up to the time of the trial of this action. Ogden City secured its water supply for domestic, culinary, and other purposes from forty-two artesian wells and three small streams located in the Ogden river watershed. The streams were known as Wheeler creek, Warm Water spring, and Cold Water creek. The artesian well water was conveyed from the wells by means of a pipe line into two distributing reservoirs. Wheeler creek, after flowing approximately two miles in an open stream, was (when the water supply from other sources was insufficient to supply the needs of the city) diverted into the pipe line which connected with the pipe line which conveyed the water from the artesian wells. The Wheeler creek water was thus commingled with the water from the artesian wells. A distributing system of pipes carried the water from the distributing reservoirs to the inhabitants of Ogden City. The Wheeler creek water had, for a number of years prior to 1928, been used to supplement the water secured from the artesian wells, Warm Water spring, and Cold Water creek whenever the water from those sources was insufficient to supply the needs of the city. During the summer of 1928 the Utah state board of health made an investigation and report of the Ogden City water supply. The report so made reads as follows:'

"The supply is derived from forty-three wells and from three small creeks located on the Ogden River watershed, and is delivered by two distributing reservoirs to the city distribution system.

"Wells: The wells are located near where the Forks of the Ogden River converge in a natural gravel basin. The average flow from the wells is 9,500,000 gallons per day, which may be increased to 16,000,000 gallons per day. However, there is no meter or measuring device to determine the amount of water supplied by the wells. The State Water Engineer has measured the flow from time to time but other than his measurements the city has no way of knowing accurately how much water is supplied by the wells. The average depth of the wells is approximately 140 ft., some being as shallow as 90 ft. At the time of the investigation eight wells were being operated by the use of air pressure. Twenty-two of the wells are connected to air pumps. The water from the wells passes through three miles of 36 in. wood stave pipe to a collection box near the mouth of Wheeler Canyon. The water from Wheeler Canyon enters the box and together it is conveyed through two lines, a 34 in. wood stave pipe and a 24 in. Kalemein pipe down the canyon, a distance of five miles, passing over the hill through a steel pipe and to the distributing reservoirs through a 35 in. wood stave pipe.

"Wheeler Creek: The Wheeler Canyon intake is located approximately one-fourth mile above the Pine View Lodge and Summer Resort. The flow is diverted by a concrete dam into two 8 in. wood stave pipes, which converge in a collection box below resort and the remaining distance of 1,500 ft. to the point where Wheeler's Canyon supply enters the well supply is a 12 in. kalamein pipe. The water from the springs in Wheeler Canyon flows in an open stream for possibly two miles before it is diverted into the pipe line.

"The water shed above the intake is subject to serious potential contamination from day camping and picnicking parties. A sign near diversion dam warns people not to contaminate their culinary supply, but no signs were posted along the stream above the intake. A beaten trail leads up this canyon, which is often used by hiking parties. Cantaloupe rinds and empty cans caught on the grating of the intake were mute evidence of human contamination. Some cattle also graze on the upper watershed, which adds another source of pollution to the canyon supply.

'There are no means provided for accurately measuring this supply, but it is approximately 4 second ft., or roughly 2,500,000 gallons per day.

"Cold Water Creek: The water is diverted from the creek, by a concrete dam, one-fourth mile from Ogden Canyon Highway, into a wood stave pipe line and enters the main supply line at the roadway. This canyon is a favorite haunt for picnics. The amount of water obtained from this supply is approximately 648,000 gallons per day.

"Warm Water Spring: The Warm Water Spring is about one-half mile below Cold Water Spring intake. Very little water is obtained from this source, estimated at 1/4 second ft., or approximately 162,000 gallons per day.

"Contamination During the summer months when the volume of available water from the streams is reduced, the number of visitors to the canyons is great, a goodly number of these are flagrantly careless from a sanitary standpoint, as proved by indications of contamination found near the streams. The danger of chance pollution by visitors on the drainage area is great. In this day few spots are so remote as not to attract the attention of visitors, many of whom dispose of their waste regardless of consequences.

"It is impractical to attempt to sanitate water sheds by adequately policing them. Wastes washed into stream water supplies during fall rains may lead to disastrous results in Ogden City. Drinking water from a surface source should be subjected to adequate storage and treatment.

"The bacteriological analyses from the Ogden supply during the summer months substantiate the sanitary survey findings of the pollution of the city water supply. The finding of the Bacillus Coli, an inhabitant of the intestinal tract, in a water is a certain indication of contamination with animal or human excreta. Since there are typhoid carriers at large, and also people convalescing from the disease, but still harboring the bacilli, the possibility of contaminating the water with typhoid organisms is very great.

"When there is reasonable possibility of a disease outbreak due to a polluted water supply it behooves the responsible city authorities to take all necessary measures to protect the people.

"Consumption There are no records of consumption. ...