Williams v. Fuller , 68 Neb. 354 ( 1903 )

The following opinion on rehearing was filed October 21, 1903:

Pound, C.

The facts are fully and accurately stated in.the former opinion. Upon re-examination we are fully in accord with that opinion upon substantially every question passed upon therein. But our attention has been called to two further points, which do not seem to have been brought sufficiently to the notice of the court at the former hearing, and escaped attention. The petition in error contains twelve assignments. Of these, eleven are clearly insufficient to raise any question whatever for review. The remaining assignment is that “the court erred in excluding from the testimony proof as to the truth of the article and the charges made therein.” In'view of the fact that at least a portion of the testimony offered with respect to the truth of the article and the charges therein made was rightly excluded upon points of practice,' and that this assignment is not confined to the remainder but seeks to strike at some seventy different questions contained at different points of a large record, we think it is entirely too general and. indefinite to be entitled to consideration. Eagle Fire Co. v. Globe Loan & Trust Co., 44 Neb. 380; Chicago, St. P. M. & O. R. Co. v. Lagerkrans, 65 Neb. 566, and cases cited.

Moreover, upon the merits, we think the testimony offered in justification was rightly excluded. We do not think that this was a case for a motion for more specific statement, nor that the plaintiff joining issue on the answer, without requiring a more definite statement, waived his right to insist that the particular portions of the answer in question were insufficient to serve as the foundation for evidence as to the truth of the article with respect to the plaintiff. The answer, among other things, denies that the libelous article “was published of and concerning the plaintiff,” and then proceeds to allege that it was true. The several allegations of a pleading must be construed so as to make them consistent, if possible. -If we accept the allegation that the charge was not published of and concerning the plaintiff, or, in other words, that it did not refer to him, we must construe the allegation that it was true as meaning that it was true of the person of and concerning whom it was published, which would be some other person than the plaintiff. The case is on. all fours with Shanks v. Stumpf, 51 N. Y. Supp. 154. While this is the decision of an inferior court, it is based on sound reason and commends itself to us as a correct exposition of the law. We are therefore of opinion that the trial court was right in refusing to admit the evidence offered, and that the judgment should be affirmed.

Duffie and Kirkpatrick, CC., concur.

By the Court: For the reasons stated in the foregoing opinion it is ordered that the former judgment of this court be vacated and the judgment of the district court be

Affirmed.