The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-07-11
HEN TRIl ORDERED
OF | LIBEL SUIT
Decision Against The
HiIo Tribune Pub
fishing Co.
DISSENT or JUSTICE eALBRlITH
MAJORITY OPINION BY CHIEF
JUSTICE rREAR AND
JUSTICE PERRY.
The Dissenting Justice Thinks His
Colleagues Have Not Settled the
Law of the case-Henry Lyman
the Plaintiff in the Case.
DISSENT OF JUSTICE elLsalITa
The Dissenting Justice Thinks His
Colleagues Have Not Settled the

majority opinion of the Supreme
Court, written by Justice Perry and
signed by Chief Justice Frear and the
author. has been rendered in the libel
suit OF Henry ]. Lyman VS.. The HiIo
Tribune Publishing Company. Il is
on exceptions of plaintiff. who by the
court is declared entitled to a new
trial. Justice Galbraith writes a dis
senting opinion The law principles
lad down by the majority in the
syllabus are these:
In an action for libel, held. that
there was no evidence which would
warrant the jury in finding that the
words published were true or that
the publication was privileged and
that, under the circumstances. II was
error for the court to refuse to give
an instruction to that effect
Where the alleged libellous words
are capable of being construed as
charging the plaintiff with selling
splrituous liquor and opium without
a license. it is error for the trial nudge
10 express the view, in the presence
ana hearing of the jury. that the said
words do not so charge the pIaintiff
In an action for libel. evidence of
specific acts of misconduct on the
part of the plaintiff is inadmissible
70 prove the reputation of the plain
tiff.'
The action was brought on the fol-
lowing alleged 1ibellous words pub
hshed in the Tribune on December ].
1900: =
Sons of the Deputy Sheriff of the
Island and of the Captain of the Po-
lice for Puma between them control
the unlicensed dope and liquor BUSH
ness of the Pahoehoe district. While
they occasionally appear to be dis
charging their duties by jumping some
individual who endeavors to do bust
ness outside the combine. or in case
such a one is lacking they inveigIe
some perfectly innocent individual in
TO giving them a drink and seize the
profered bottle as evidence upon
which to base q false charge and
conviction unsupported by other evil
dence."
Plaintiff is son of the Deputy
Sheriff referred to- The jury render
ed verdict for the defendant pub
fishing concern.
The general conclusions of the mai
ority of the Supreme Court are giyer
above Their specific reasonings dis
puted by Justice GaIbraith are repro
duced in his dissenting opinion an6
need not be doubly stated to give the
reader view of the main discussion
The testimony of ]. r. Wilson OF
which point turned is. however. Civ
| en- for clearness of the view. Wilson
was asked if he knew plaintiffs gen
/ eral reputation In the communit,
where he lives with reference to hi
| controlling Ia any part or manner tn,
| opium business" To which he an
swered: We'll, I don't know. Their,
| is only one way in which | can answe
that question. On several occasions
these Cinnamon have come to me t,
get opium and said it was for Henri,
Lyman"
On this the majority comment
"An objection to the question and
notice to strike out the answer. an
have the jury instructed to disregar,
it. were both overruled. The answe
was clearly inadmissible as evidenc
either of general reputation or Of tn
truth of the words published, or o.
any other theory. Specific acts ma
not be shown to prove reputation
and as evidence of the truth of tn
charge the statements made to tn
| witness were hearsay."
Justice Galbraith says one reas0
why he is not able to agree with III
| majority is that he has "a settled cor
viction that it is more important {
declare the Law OF a case than {
announce that the trial Judge has com
mitted error In this connection
saws further along If the plaintiff
theory of the law OF the case Is nc
correct his exceptions should be owe
ruled II the publication Is not libe
lous per Sc damages are not presume
but must be alleged and proves
There was no proof of actual damage
and a Judgment in his favor could NJ
|. be maintained under any other vie
OF the Law than that maintained b
the plaintiff. If there was a failui
OF proof on the part Of the plainti
he was not prejudiced By any OF II
, alleged errors and has no Just cans
Il 10 complain So Ii seems to me thu
the ecnrt should have determined ar
announced the law Of this case. i. +,
whether or not the instruction Of u
court that the publication Was lbs
Ious per Sc was correct
With regard 10 Wilson's tesfimon
Justice Galhraith SAYS Il am /
: ciined % agree with the majority III
the testimony Of Wilson was impru
eriv admitted and shoald have be,
stricken out but Il was before 4
;ury when the instruction was ask.
and while IL was there the refusal
rsve the instruction was not errg
The court below erred In one Of the
instances but clearly did not err
both OF them"
Justice Galhraifh points OCT
oversight OF the majority In the {.
lowing statement: Again the OPT
ion proceeds: The court below in
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