Fontaine v. Cooley

The main contention of the appellant is that the publication set up in each cause of action is libelous per se and that the court should have so instructed the jury.

We are of opinion that the publication set up in the first cause of action is actionable per se, but as to the second and third causes of action the questions were for the jury, and the jury found the publications not actionable.

While it was error to submit the question of whether the publication set up in the first cause of action was libelous or not, the error was not prejudicial under the finding of the jury in favor of appellant and award of damages to him.

The appellant argues the errors assigned under two heads, viz.: (1) failure of the court to hold the articles set up in the second and third causes of action libelous per se; and (2) in submitting to the jury whether libelous or not and whether true or not. These issues were proper under the pleadings, and the evidence submitted under them was nonprejudicial. Counsel for appellant complains of a “flood of evidence” admitted which it is claimed prejudiced the jury and should have been excluded. If counsel for appellant were correct in his contention that the publications set up in the second and third causes of action are actionable per se, then there would be force in the contention; but since this court holds that the articles set up in the second and third causes of action are not libelous per se, the evidence was competent and no prejudicial error was committed in admitting it.

The case seems to have been fairly tried and no prejudicial error committed.

By the Court. — -The judgment is affirmed with costs.