dissenting;
I cannot concur with the majority of the court, and my reasons for dissenting, briefly stated, are as follows; The libelous article set out in full in the majority opinion is construed by considering Its several words and sentences separately, and in a way that, to my mind, will not bear the test of judicial investigation. The published article should be taken up as a whole, and all of its words and sentences should be construed together. There may be sentences in the article which, standing alone, possibly could not be construed as libelous and might not have caused the institution of a suit like the one w'e are considering. To my mind, all parts of the publication should be considered as forming the foundation for the concluding charge in the article. All related to plaintiff’s manner of discharging the duties of his judicial office so as to favor “the special interests,” the gamblers and dis*411reputable persons constituting the “third ward crowd,” and to aid them in getting out of the way any member of the gang who should turn against them and attempt to aid in their undoing. When so taken and construed, I am of opinion that it constituted a direct charge of misconduct in office.
It must be borne in mind that what is termed in the article as the “third ward crowd” was understood and believed by the citizens of Omaha to be composed of gamblers, thieves and criminal violators of the laws of this state, together with other persons of disreputable and criminal character. In justification, defendants offered the evidence of one of the “third ward crowd” to prove that fact. The article charged that Judge Estelle was friendly to that crowd. It alleged, in substance, that the police force, acting with that element, had charged one Erdman with a criminal offense; that on the trial of that case, at which Judge Estelle presided, he had prevented one J. W. Miller from serving as a juror in the case, and if Miller had been retained on the jury he would have blocked Erdman’s conviction. The article further charged that, notwithstanding the fact that the evidence was insufficient to sustain the conviction, Judge Estelle sentenced Erdman to a term of 15 years in the penitentiary, which was the extreme limit of the laAV for the offense charged. If this does not charge plaintiff with corruption and misconduct in office, I fail to understand the meaning of the English language.
The article in question starts out with the statement: “I am opposed to the renomination of District Judge Lee S. Estelle because I belieAre he.is for the special interests and against the people.” It concludes with the charge: “I am not indifferent to the peril of myself and to my little ones if I raise, my voice against the cohabitation of the gamblers and the courts in the temple of justice, but that is a secondary matter to me. Judge Estelle ought to be defeated. I am appealing to decent republicans to defeat Estelle in the primaries Tuesday.” Without further ref*412erence to the publication, I am clearly of opinion that it was libelous per se.
In determining whether the printed declarations were libelous, the courts will not resort to any technical construction of the language used. The publication should be read in court as it would be read elsewhere. The language itself is to be construed in its ordinary and popular sense, and the question is whether the language, when so construed, would convey, or was calculated to convey, to persons reading it, the charge of misconduct in office. Pokrok Zapadu Publishing Co. v. Zizkovsky, 42 Neb. 64; World Publishing Co. v. Mullen, 43 Neb. 126; Barr v. Birkner, 44 Neb. 197; Battles v. Tyson, 77 Neb. 563; Thorman v. Bryngelson, 87 Neb. 53; Thomas v. Shea, 90 Neb. 823; Spencer v. Minnick, 41 Okla. 613; Baker v. Warner, 231 U. S. 588.
By its answer the Daily News Publishing Company admitted the facts alleged in the first seven paragraphs of the petition, admitted publishing the article in question, and set the same out in full in its answer. It pleaded the calling and character of defendant Fellman and thfe part he was taking in political affairs, and alleged that the answering defendant, at the request of Fellman, published the article and believed the statements contained therein to be true, so far as appears from the ordinary import and meaning of the language used. It was alleged that defendant published the article without comment, except the caption which it prepared, viz., “Fellman Urges the Defeat of Estelle;” that it published the same without malice toward plaintiff, in the public interest, and with good motives and for justifiable ends; and that the publication was privileged. It denied that the words contained in the article had, or could have, the meaning or import alleged by plaintiff in his petition, averred that plaintiff was successful at the primary and election, and denied that he was, or has been, in any respect damaged. Defendant Fellman admitted the writing and publication of the arti*413cle in question, and alleged, in substance, that Dennison, with his “third ward crowd,” had sufficient influence with public officials to afford protection to persons and corporations so that gambling, the illegal sale of liquors, disorderly houses, and other vices were rarely interfered with, when operated by followers and members of that crowd; that it was well understood in Omaha that the only way to secure the privilege of violating the law was to do so through the “third ward crowd” and its bosses, and one way to secure such privilege was to obey their commands in voting and working for their candidates at primary and general elections. Fellman’s ansAver further alleged that for years prior to August 4, 1911, the “third ward crowd” controlled the vote of most precincts in that ward; that for years the votes of those precincts had been counted for candidates favored by them; that for years prior to the publication in question there had not been a fair, free or honest primary or election in said precincts, and in many other precincts that were under the control of the “third ward crowd;” that during plaintiff’s service on the bench he had not taken any action as a citizen, or as a judge, to interfere with or lessen the political power and influence of said “third ward crowd,” but, on the contrary, had rendered decisions as a judge on the bench which, have aided the members of that crowd to violate the law and to terrorize those who had interfered . with such violation; that the plaintiff, as a judge, had been satisfactory to the “third ward crowd;” and that because of the record made by plaintiff in the Erdman case, and in other cases which came before him as judge, and because of the protection Avhich the “third ward crowd” had been able to give to violators of the law without interference from plaintiff, whose duty it was to interfere, defendant Fellman came to the conclusion that plaintiff was not the proper kind of a man to occupy the position of district judge.
The plaintiff’s replies were, in substance, a denial of the affirmative allegations of the answers.
*414On tlie trial, plaintiff introduced evidence of his professional standing as a lawyer, of his long and satisfactory service as one of the judges of the fourth judicial district, and also as to how the article affected him when he saw it as published by the defendant the Omaha Daily News Publishing Company. The evidence showed that the effect of the published article upon plaintiff was such that he became severely ill in mind and body; that it caused him such great anguish that he Avas unable to perform his duties as judge of the district for about six Aveeks; that the result of the publication was such as to nearly cause his defeat for renomination and election; that he ran many votes behind his associates, and but for the fact that he had served the people of his district for twelve years, and was well knoAvn as an upright and conscientious judge, the publication of this article would have accomplished its purpose aud he would have been defeated.
The defendants testified in their own behalf, and both stated that, when the article was written and published, neither of them believed that the plaintiff had ever been guilty of corruption or misconduct in office, and it appears that the matters charged in the publication, so far as they related to plaintiff, were untrue. This was sufficient to show malice. Whiting v. Carpenter, 4 Neb. (Unof.) 342; Sheibley v. Fales, 81 Neb. 795; Thomas v. Shea, supra. This also disposes of the appellants’ claim that the article published was privileged.
The rule in some courts is that a public statement to the Aroters during an election campaign as to the qualifications and fitness of candidates for election to office is one Of qualified privilege; that one who publishes a statement relative to a candidate’s qualification and fitness for office is not liable in damages if the statement be true and is made with good motives and for justifiable ends; and decisions can be found that hold this to be true, although the statement on its face would be what might be termed libelous per se; but even those cases hold that, if such statement is in fact untrue, the burden is upon the one who *415makes it to prove, not only that he in good faith believed the statement, to be true, but that he had evidence sufficient to justify an ordinarily prudent and fair-minded man in believing in its truth. When the published statement is libelous per se, that is to say, is untrue when published, and the one who publishes it does not in fact believe that the one against whom the published statement is directed has been guilty of any wrongdoing, or when the person charged is a public official, and the person publishing the article does not believe that he has been guilty of any malfeasance or misfeasance in office, the doctrine. of qualified privilege has no application, and the one publishing the statement is subject to the general rule of law in relation to libel. In an action for damages for libel by one holding a public office, where the defendant testifies that at the time of publishing the libelous article he did not believe that the plaintiff had ever been guilty of either malfeasance or misfeasance in office, there is no room for the application of the rule that where one publishing a statement as to another merely states his belief as to existing facts and conditions, in' good faith and upon sufficient ground to justify a reasonable man in such belief, he will not be liable in damages for expressing such belief to the voters at a pending election. It is a travesty to hold that a party should be excused on a plea of good faith or upon evidence which might be thought sufficient to justify reasonable minds in believing the truth of his publication, when he himself, in fact, did not believe it was true at the time he made it. Courts should not permit such subtle distinctions to control their decisions.
What are the facts in this case? The defendant Fell-man at the trial testified as follows: “Q. Did you at the time you wrote this article believe that Judge Estelle had been guilty of any corrupt acts or illegal acts in the discharge of his official duties as a judge? A. I did not. * * * Q,. Did you believe that Judge Estelle had been guilty of any crime in the discharge of his official duties when you wrote this letter? A. I did not. * * * *416Q. Did you have in mind or believe at the time you wrote this letter that Judge Estelle had been guilty of any misfeasance or malfeasance in office? A. I did not.” Mr. Polcar, who at the time of the publication of the notice was, and for ten years prior thereto had been, managing editor, of the defendant publishing company, and who at the time of the trial was the president and only resident director of the company, testified at the trial as follows: “Q. I think you testified in your direct examination that you did not believe Judge Estelle guilty of corruption in office? A. I don’t believe so. Q. You don’t believe he ever was guilty of any malfeasance in office? A. No, sir. Q. You don’t believe he was ever guilty of any misfeasance in office? A. No, sir.” This testimony, given by the two men who are responsible for the publication, entirely eliminated from the case the doctrine of qualified privilege. And, there being no evidence in the case showing that the charges made in the published notice were actually true, the defense that the notice was published from good motives and for justifiable ends, as I view the case, entirely failed. It would be an absurdity to hold that a statement which is libelous upon its face could be published for justifiable ends when it in fact was not true, and when the ones who published it did not believe it to be true. In this condition of the record, the trial court should have instructed the jury that the published statement was libelous per se, and should have submitted to them the one question only, viz., the amount of plaintiff’s damages. If I am correct in this view of the matter, then the discussion of the innuendoes set forth in plaintiff’s petition is beside the mark, and the instructions of the trial court which are set forth in the opinion of the majority and which are relied upon for reversal of the judgment, if erroneous at all, could only affect the plaintiff’s rights and are most favorable to the defendant.
In Bee Publishing Co. v. Shields, 68 Neb. 750, in an opinion by Oldham, 0., concurred in by Barnes (myself) and Pound, 00-, and by Chief Justice Sullivan and Judges *417Holcomb and Sedgwick, we held: “An occasion of privilege will not justify false and groundless imputations of wicked motives or of- crimes against public officials in the performance of their duty. While the conduct of such officials is open to criticism, a line must be drawn between hostile criticism upon public conduct- and the imputation of bad motives or of criminal offenses to officials.”
In Mertens v. Bee Publishing Co., 5 Neb. (Unof.) 592, we held: “The doctrine of qualified privilege applicable to communications in a newspaper regarding a candidate for public office does not extend to statements injuriou; to reputation or character if such statements are false in fact.”
The record shows that the defendants sought to justify the charge relating to the trial and sentence of Erdman by offering testimony as to the vicious and criminal character of what they termed the “third ward crowd.” As we view the evidence, it shows that no substantial fact existed which would justify the publication, and the jury were warranted in returning a verdict for the plaintiff.
That Fellman was the writer of the article is admitted; that he wrote it to be published in the Omaha Daily News, and that the editor in chief of that newspaper was vested with complete authority to say whether the article should or should not appear in the paper. He testified that Fell-man brought the letter and handed it to him; that he read it and hurried it into the composing room. The purpose of Fellman in writing the letter, and of the editor in publishing it, was to defeat the plaintiff in the primary and at the election; the purpose of one was the purpose of both of the defendants. There could be no separation on the ground of qualified privilege, because neither of the defendants was privileged to write or publish the article in' question. There was no ground on which to separate .the defendants in determining plaintiff’s damages.
That the publication failed to accomplish its purpose in this particular instance should not be urged in excuse *418or mitigation. That it did come very near producing the result is true. That it did not entirely do so was doubtless because of the fact that the judge ivas wéll known in Ms district, where he had lived and in which he had served for many years. It will not do to lightly pass over an offense of the land under consideration, nor to enter into any nice mathematical computation in considering the amount returned by the jury as compensation for the wrong done. The record shows that the trial was had in a district other than the one in which plaintiff resided, before a fair-minded and unprejudiced jury. The presiding judge was a man of many years of experience and well learned in the law. To my mind the instructions contain no reversible error, and the judgment of the district court should be affirmed.
Morrissey, ¡O. J., concurs.