46 Iowa 576 | Iowa | 1877
Lead Opinion
I. As the plaintiffs at the time the ruling was made excluding the newspapers did not propose to introduce any other or further evidence tending to show that defendants were the publishers of the alleged libels it was entirely proper for the court to refuse to admit the same if the testimony did not, in the opinion of the court, warrant a submission of the question to the jury whether the defendants were the publishers.
Ordinarily, the manner in which evidence shall be introduced will not be controlled by the court. But when testimony is objected to as inadmissible, counsel cannot avail themselves of this rule unless they have other evidence bearing on the question which they propose to introduce in the further progress of the cause and can satisfy the court of their good faith and intent in this respect.
There was nothing tending to show they were the owners,, publishers, or in any manner connected with either of said newspapers. Nor was there any direct proof they or either of them composed or delivered the libelous matter to any one.
The only proof of a publication by either of them in the “ Cedar Post ” was as follows:
“ Clarence, Nov. 16th, 1873.
“Friend Maria: — Your letter received some time ago and answered, but I feel as to write you again, and give you the news of Clarence, as T. &. B. Mink closed up the Banking House of Bent & Cottrell, by the United States Marshal, for a large amount of money due us on our judgment from the United States Court, and we made our demand of them, could not pay, and so the U. S. Marshal made a levy on all, safe and vault, and its contents. Those men have signed that man’s bonds, and did try and (break) us up. But we broke them slick and clean; also the United States Marshal guarded the
T. H. Mink.”
The alleged libel was published in the “ Cedar Post,” on the . 19th day of November, 1876, and was as follows:
“T. & B. Mink, gentlemen well known throughout this county, closed up the banking house of Bent & Cottrell last Friday, having made a demand on Bent & Cottrell for their claim due them on the judgment obtained in the United States Circuit Court, at Des Moines last spring. You doubtless ■ remember the suit between T. & B. Mink, of Clarence, and Mr. Hollilian, of Chicago, decided in favor of the former. On the afternoon of the ldth, as the freight train came along, going east, the United States Marshal stej>ped off; of course the Messrs. Mink expected him, but no one else. Undoubtedly i1 was quite a surprise to the people of Clarence. The United States Marshal went to work and made his demands upon Bent & Cottrell for the above amount. Mr. Bent said they had not the money, but if T. & B. Mink would give them fifteen days time, they would try and pay the amount. This was refused by Messrs. Mink, as they thought they had waited long enough already. Then the United States Marshal made
The writer of the letter, one of the defendants, tells his correspondent: “I must close, for we are writing for Tipton papers on this bank matter.” The “ Cedar Post ” was published at Tipton, and on the third day after the date of the letter the alleged libel appears in said paper, and it is in relation to the “bank matter” he had stated lie was writing to ’ the papers about. The court had the right, and it was its duty, to look at the alleged libel for the purpose of determin- ■ ing the question presented. Taking the letter and alleged libel together, and considering the dates of the two transactions, we are of the opinion the court erred in the ruling made. It seems to us the evidence was sufficient, prima facie, to sat-. isfy the court the defendants, or rather one of them, caused the publication. Whether it would have been sufficient to have satisfied the jury is not the question, but had a prima facie ease been established warranting the submission of the question at issue to the jury.
. The ultimate question in the case was for the jury to determine; hence the finding of the court below, that a prima facie case had not been proved, does not conclude this court from examining, and for itself determining, what is the proper rule in the premises. There was no conflict in the evidence, nor doubt or cavil as to what it was. Whether a proper case had been proven, one that should be submitted to the jury, was a question of law.
III. The article published in the “Chicago Journal” was as follows:
“ Clarence, Iowa, Nov 18,1876.
“ On the lltli inst. the banking house of Bent & Cottrell of this place was closed on an execution by the sheriff, who has placed a guard over it.”
The testimony to connect the defendants with this publication consisted of a letter which was received by the “ Chicago Times ” from one of defendants, in which the writer stated that- the bank pf Bent & Cottrell was closed up. The writer stated it was an item for the paper, but it was not published therein. An item to the same effect was published in the
Eor the error in refusing to admit the “ Cedar Post” and the alleged libelous matter published therein in evidence, the cause must be
Beversed.
Dissenting Opinion
dissenting. — I cannot concur in the foregoing opinion of the majority of the court. “In case of libel before any evidence can be given of its contents prima faeie evidence must be given of a publication by defendant.” Starkie on Slander, Yol. 2, Sec. 14. “After proof of publication by the defendant, the libel itself is to be read.” Philips on Evidence, Yol. 2, p. 239.
‘When plaintiffs offered toread the alleged libels to the jury, they had introduced all their other evidence. They did not propose to introduce additional evidence connecting the defendants with the publication. The question presented was whether there was prima facie evidence of publication by the defendants or either of them. The court below held that it was insufficient as a prima facie showing. Prima facie evidence of fact is, in law, sufficient to establish the facts unless rebutted. Bouv. Law Diet., Yol. 2, p. 370. That the evidence which it is claimed connected the defendants with the publication of any of the alleged libels is insufficient to make a prima facie case, I have no manner of doubt. The only fact which it claims rises to the dignity of legal evidence is
■ It was not shown what, if anything, the defendants or either of them wrote and published, or procured others to write and ■publish, in Tipton papers. The writing of a libel, however gross it may be, unless published, is not actionable. It is no ■more' than the ¡possession of one’s thoughts. The alleged libel afterward published in the “ Cedar Post” does not purport to have been written by defendants or either of them, but by another person. It was not shown that the libel was in the handwriting of either of the defendants, or that it was at any time in their possession or under their control.
Without resorting to the ordinary sources of evidence to prove the publication, as by calling witnesses who had some personal knowledge of the fact, the plaintiffs insisted that the court should, by reason of this merely suspicious circumstance, as it appears to me, hold that the evidence was sufficient to connect the defendants with the publication, and unless rebutted there should be a verdict for plaintiffs. This ■would have been the effect of the ruling as has been seen from the definition of prima facie evidence above given.
It was the court’s duty to weigh the evidence and determine the question. In my judgment the ruling was correct, •but as it was a ruling upon the sufficiency of evidence this court should not disturb it, unless the conclusion reached by ,the court below was palpably against the evidence. Adams, J,, concurs with me in this dissent.