Estelle v. Daily News Publishing Co.

Sedgwick, J.

The plaintiff had held the office of judge of the district court for the fourth judicial district for about 15 years, and was a candidate for re-election. The defendant Pellman wrote an article in regard to the plaintiff’s candidacy, and the defendant, the Daily News Publishing Company published the article in the Daily News, a newspaper published in Omaha. This action was begun by the plaintiff in the district court' for Douglas county, and was transferred to the district court for Dodge county. The trial there resulted in a verdict for $25,000 damages and a judgment upon the verdict, from which the defendants have prosecuted separate appeals..

The article complained of was as follows: “I am opposed "to the renomination of District Judge Lee S. Estelle because I believe he is for the special interests and against the people. I am opposed to his renomination because I believe he is for the third ward crowd and against their molestation. I am opposed to his renomination because, in common with many other Omaha citizens, I regard the Erdman case a mere ‘frame-up’ by the third ward crowd. Erdman’s real offense as viewed by them was his interruption of their police protected carnival of crime. The witnesses for the prosecution were for the most part gamblers, bartenders and gay sports who consort with them. The testimony of their more reputable witnesses was swept away by men of such standing as Dr. Rigge of iCireighton University and Professor Senter of the high school of Omaha. The first jury disagreed. The second jury returned a swift verdict of guilty in one, two, three order. Mr. J. W. Miller, educational director of the Y. M. C. A., was not allowed to sit on the jury. A single man of his type, would have blocked the game. Judge Estelle, in the face of these facts, gave Erdman the full limit of the law — fifteen years. 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.”

The defendants contend that the petition fails to state a cause of action. After their demurrers to this petition were overruled the defendants each filed separate motions to strike out parts of the petition. These motions related principally to the various innuendoes incorporated in the petition. They also complain that the court refused to give certain instructions requested by the defendants, and that certain instructions given by the court were erroneous. For the most part these criticisms in regard to the instructions depend upon the contention that the innuendoes should have been stricken from the petition, and that the petition does not state a cause of action. The publication was during the campaign for nomination in the primaries, and, as has been before stated, the plaintiff was a candidate for nomination. The defendant, Fellman was a citizen and voter of that judicial district, and was, in common with all other citizens, interested in the nomination and election. The communication was therefore what is commonly called a privileged communication, and must be construed in the light of that fact. One who publishes of a candidate for office a statement relating to the candidate’s qualifications and fitness for the office is not liable in 'damages if the statement was true and was made with good motives and for justifiable ends, although such statement is libelous per se. If the statement is untrue in fact, the burden is upon the party who makes it to prove, not only that he in good faith believed the truth of the statement, but that he had evidence sufficient to justify a reasonable man in belief of its truth.

“The extent to which the cases go in relation to a candidate for a public office is that, where a person, knowing or bélieving that a candidate for public office is guilty of conduct affecting his fitness for the position, communicates that knowledge or belief to the electors whose support the candidate is seeking, the publisher, acting in good faith in the discharge of his duty to the public, may make such reasonable comments and give such information as comes to him from a reliable source, and which he believes to be true, for the purpose of informing the voters of the fitness of the candidate.” Sheibley v. Huse, 75 Neb. 811, 821.

But there is a corollary to this proposition. The principle has been stated in Neeb v. Hope, 111 Pa. St. 145, and quoted and adopted in Bee Publishing Co. v. Shields,. 68 Neb. 750: “An occasion of privilege will not justify false and groundless imputations of wicked motives or of crime. The conduct of public officers is open to public criticism, and it is for the interest of society that their acts may be freely published with fitting comments and strictures. But a line must be drawn between hostile criticism upon public conduct and the imputation of bad motives, or of criminal offenses, where such motives or offenses cannot be justly and reasonably inferred from the conduct.” Farley v. McBride, 74 Neb. 49.

A defendant is not liable for publishing privileged communications unless there was actual malice on his part, and such malice must appear before there can be a recovery. If, however, the statements of fact published are libelous per se, proof that such statements were untrue is sufficient to cast the burden upon the defendant to prove that the evidence of the truth of the statements was such as would justify him in making them, and that he did so in good faith, believing them to be true. As an interested citizen, it was the right of the defendant to inform the voters of any well-grounded belief which he had as to the candidate’s fitness for the office. “I am opposed to the renomination of District Judge Lee S. Estelle because I believe he is for the special interests and against the people” is a statement of opinion. Even if this statement would bear the construction that he believed the candidate was so much in favor of the special interests that he would intentionally favor them in any litigation before him, which would, of course, be misconduct in office, still, if the defendant so believed and such belief was well founded, or if he frankly stated the grounds of such belief and fairly submitted the matter to the voters, he would not be liable in damages.

The defendant’s motion to strike out the innuendoes alleged in the amended petition was upon the ground that “each of the matters sought to be stricken is redundant, immaterial, and irrelevant, and for the further reason that the publication set out in plaintiff’s petition is not cajiable of a double meaning, and is not capable of the meaning given to it by the innuendo allegations, sought by this motion to be stricken from the petition,” and was addressed separately to each innuendo alleged.

The first item of the publication and alleged innuendo was as follows: “I (meaningThe said defendant Benjamin F. Fellman) am opposed to the renomination of District Judge Lee S. Estelle (meaning this plaintiff) because I (meaning the said defendant Benjamin F. Fellman) believe he is for the special interests (meaning thereby that, in the discharge of plaintiff’s official duties as jndge of said district court, plaintiff was prejudiced in favor of some litigants) and against the people (meaning thereby that, in the discharge of plaintiff’s official duties as judge of the district court, this plaintiff, as such judge, exercised the functions of his office with partiality and favor contrary to law)

In this clause of the published article the defendant stated his belief, and did not state as a fact that the plaintiff was “for the special interests and against the people.” It could not be construed as intending to charge as a fact that “plaintiff was prejudiced against some litigants,” or that he exercised his office as judge “with partiality and favor contrary to law.”

The court'instructed the jury: “If the jury believe from the evidence that said article meant what the plaintiff alleges it to mean and was. false, and the plaintiff has suffered some damages thereby, then you should find in favor of the plaintiff and against' both defendants such damages as you believe from the evidence the plaintiff has sustained. The law under such a state of facts would presume that plaintiff has suffered some damage.” Also, other similar instructions. By the instruction above quoted it was submitted to the- jury to find whether this language, as used by the defendant, should be construed as alleged in the innuendo. The jury must have supposed that the question for them to determine was whether the language charged as a fact that the plaintiff was or had been corrupt in his office. There was properly no such question for the jury upon the statement of the publication, and the jury should have been so instructed. The innuendo in connection with the second statement of the publication is of the same character. Allowing these innuendoes to remain in the petition, and instructing the jury that they were to find whether these statements meant what the innuendoes charged they meant, was clearly erroneous. The jury should have been told that these statements were merely statements of defendant’s belief, and that defendant could not be held liable for stating an honest and well-grounded belief as to the qualification and fitness of plaintiff for the office for which- he was a candidate. The third statement as to how defendant regarded the “Erdman case,” that is, what he believed as to that case, is followed by a statement of the facts upon which he based that belief, and some of his own conclusions drawn from those facts. If he made a true statement of facts as the foundation of his belief as to that case, he could not be held liable for expressing his reasonable belief, and conclusions derived from those facts, and submitting the question fairly to the voters.

The statement upon which he based his characterization of the “Erdman case” is: “The witnesses for the prosecution were for the most part gamblers, bartenders and gay sports who consort with them. The testimony' of their more reputable witnesses was swept away by men of such standing as Dr. Rigge of Creighton University and Professor Senter of the high school of Omaha. The first jury disagreed. The second jury returned a swift verdict of guilty in one, two, three order. Mr. J. W. Miller, educational director of the Y. M. O. A., was not allowed to sit on the jury. A single man of his type would have blocked the game.” He considered the conspiracy or “frame up” of the “Erdman case” to be the work of “the third ward crowd.” He thinks that, “as viewed by them,” Erdman interrupted their “carnival of crime,” and that was their motive in his prosecution. There is no intimation that he believed that the judge was in any way connected with these schemes of “the third ward crowd.” He states as a fact the character of the witnesses for the prosecution of that case, and it seems to be conceded, by both parties that that statement was substantially true. Both parties assert that the “third ward crowd” is a bad organization, as far as the public interests are concerned. Indeed, both parties by their pleadings and their evidence make this very prominent. He then says that the testimony of the witnesses for the prosecution was swept away by the testimony of certain men that he names. That might or might not be construed as a matter of opinion and judgment, rather than a statement of an issuable fact. The next statement, that the jury in that trial disagreed and that the second jury returned a “swift verdict of guilty,” is not seriously controverted. He then named a juror that he says was not allowed to sit upon the jury, which is borne out by the record. The innuendo here alleged, “meaning thereby that, in sustaining a challenge of the state to said J. W. Miller on the ground of his incompetency as a juror in said case, this plaintiff corruptly exercised his judicial functions in sustaining said challenge wrongfully and unlawfully for the purpose of preventing said Erdman from having a fair trial,” presented a question for the jury. That the trial judge considered the evidence in the “Erdman case” sufficient to justify a submission of the case to the jury does not of itself imply corruption. If Erdman was guilty of the crime as found by the jury, a sentence of the full limit of the law does not necessarily mean, and might not be understood to mean, that “plaintiff in the exercise of his judicial office wrongfully and corruptly imposed an excessive sentence upon the said Erdman.” These questions should have been submitted to the jury with proper instructions. The following statement, that a “man of his type would have blocked the game,” of course, is an expression of opinion. He then says: “Judge Estelle, in the face of these facts, gave Erdman the full limit of the law — fifteen years.” That the sentence was 15 years was established by the record. The expression “in the face of these facts” might imply that plaintiff at the time knew all of the recited facts; that the witnesses for the prosecution were for the most part gamblers; that the testimony of their most reputable witnesses was “swept away;” that the first jury disagreed and the second jury returned a “swift verdict,” and that the juror named was peremptorily challenged and necessarily therefore excluded. It was a question for the jury to determine whether the meaning was that the plaintiff knew the facts, or merely that the facts existed. The statement then concludes: “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.” Thus he assumes that, if he is right in his belief that the candidate is for the special interests and against the people, and is for the “third ward crowd” and against their molestation, and that the “third ward crowd framed up” the prosecution against Erdman with the result stated, then there is “cohabitation of the gamblers and the courts in the temple of justice.” He appeals to decent republicans and expresses the opinion that the judge ought to be defeated.

The innuendo with the closing statement above quoted is alleged: “Meaning thereby that there existed unlawful relations and intercourse between gamblers and this plaintiff as a judge of the district court of said judicial district, and that such unlawful relations and intercourse wrongfully and corruptly influenced this plaintiff in the discharge of his judicial functions as a judge of said court.” The word “cohabitation” may in some connection have a very disgraceful meaning. The jury might well regard it in this connection as an extravagant expression. The primary meaning of the classical words from which it is derived is to have (or have possession of) a common place. Webster’s New International Dictionary. Its evident meaning in the connection used is that this plaintiff and gamblers associated together in the building-used by the courts. Whether the defendant’s meaning was, and the understanding of those who read the article would be, that “there existed unlawful relations and intercourse between gamblers and this plaintiff as a judge of the district court of said judicial district, and that such unlawful relations and intercourse wrongfully and corruptly influenced this plaintiff in the discharge of his judicial functions g,s a judge of said court,” should have been submitted to the jury with proper instructions.

The plaintiff' contends that the fact that defendant testified at the trial that he did not believe that the plaintiff was guilty of corrupt practices in his office as judge establishes that defendant did not believe that the plaintiff Avas “for the interests and against the people,” and did not believe the other matters Avhich he stated as his belief in the article complained of, and that therefore his statements of his belief are shown by his own evidence to have been wilful and malicious. The defendant was not asked whether he believed that the plaintiff was “for the interests” when he made that statement, nor in what sense he used that expression. The language used by him, under the familiar vernacular of the times, might mean that he believed that the plaintiff’s social or business affiliations were with those who represented special, as distinguished from the public, interests, and that he was, or might be, unconsciously, rather than corruptly, influenced thereby. The defendant’s denial upon the witness-stand that he believed the plaintiff to be corrupt in his office should be regarded as his construction of the language used by him, rather than an admission that he did not in good faith believe what he stated to the voters that he did believe.

The communication being one of privilege under the circumstances, it follows from what has been said that the question of the liability of the defendant Fellman depends upon his good faith in writing and publishing the articles complained of. If the matters stated by him as facts were true, or if he had reason to believe that they were true upon evidence that would justify reasonable men in such belief, he would not make himself liable by stating such facts to the voters. If in stating his belief as to existing facts and conditions he did so in good faith, upon sufficient ground to justify a reasonable man in such belief, he would not be liable in damages for expressing to the voters such belief. Whether the published comments made as beliefs or conclusions were honest expressions of opinion made in good faith, and not without foundation, and were such as a fair man, though entertaining extreme views, mig'ht make honestly and without malice, were .questions for the jury. This principle was entirely ignored in the instructions, though defendant suggested several upon the point. By instruction 14 the jury were told unqualifiedly that, if they believe the article was false, plaintiff would be entitled to recover. This excludes entirely the idea of privilege, and of exoneration of Fellman if he believed upon good and reasonable grounds his statement to be true. Those matters should have been made plain to the jury. The questions to be submitted to the jury are: (1) Did the defendant, in the several statements of what he believed and as to what he regarded as a fact, state in good faith what he believed as to those matters and upon sufficient ground, under all the circumstances, for such belief? (2) If the fact was that the juror in the Erdman trial was challenged for cause, then would this defendant in that connection be fairly understood to charge this plaintiff with an improper motive in excusing said juror, and, if so, did the defendant act wilfully and maliciously in making the statement that the juror was not allowed to sit in the case? (3) Did the language used by defendant suggest to those who read the article that the judge, when he sentenced Erdman, knew the facts recited in the statement as to the conspiracy of the third ward crowd to convict Erdman, and would those who read the article so understand it, and, if so, did the defendant act wilfully and maliciously in stating those facts and the severity of the sentence? (4) Would the expression, “the cohabitation of the gamblers and the courts in the temple of justice,” under the circumstances, and in connection with the whole article, be understood by those who read it to charge “that there existed unlawful relations and intercourse between gamblers and this plaintiff as a judge of the district court of said judicial district, and that such unlawful relations and intercourse wrongfully and corruptly influenced this plaintiff in the discharge of his judicial functions as a judge of said court,” and, if so, did the defendant act wilfully and maliciously in using that expression?

Of course, the entire article must be considered as a whole, and each distinct statement construed in the light of all other statements; but this does not mean that, when a voter states his belief upon a given subject, it must be construed as a positive statement of fact because there are some matters stated as facts in the article complained of. Common sense dictates that we should ascertain what matters are stated as facts, and not treat mere statements of opinion as statements of fact. The newspaper published the article, without comment, as the vieAVS of the defendant Fellman. The instructions referred to, in the light of the construction placed upon the innuendoes by the rulings thereon, were also erroneous as to that defendant. The defendants requested that separate verdicts be submitted to the jury, which Avas erroneously refused.

The judgment of the district court is reversed and the cause remanded.

Reaudrsed.