177 Iowa 144 | Iowa | 1916
Lead Opinion
I. A demurrer, which was sustained, admits that defendant falsely published concerning plaintiff, who is mayor of Perry, the matter following:
By sustaining the demurrer, the court held that the publication is “not itself libelous;” that nothing is pleaded which “would make the publication a libel upon the plaintiff” and that nothing is pleaded “which would justify a recovery.”
II. We are constrained to differ from this holding. True, no statute crime is charged in the publication. But that is not essential to constitute a libel. Call v. Larabee, 60 Iowa, at 214, 215; State v. Keenan, 111 Iowa, at 291; Morse v. Times-Republican Printing Co., 124 Iowa, at 715, 716; State v. Cooper, 138 Iowa, at 520. The statute, Section 5086 of the Code of 1897, makes any printing a libel if it tends to provoke the one of whom it is published to wrath, or tends to expose him to public hatred or ridicule, or tends to deprive him of the .benefits of public confidence or social intercourse. The cases cited establish that any publication which has a tendency to accomplish either or all of the things which the statute includes in its definition of libel is libelous per se, and that
It is plain nothing said concerning a presumption of actual damages is of the decision.
We held, in Crawford v. Bergen, 91 Iowa, at 677 and 679, that we will not reverse for failure to award nominal damages for slander. True, in Flues v. New Nonpareil Co., 155 Iowa, at 294, we say that there is a distinction between slander and libel, but also that the distinction is that “words are often deemed libelous per se when written which would not neces
Because any libel is actionable per se, it follows that recovery for a libel should and will differ, and follows in turn that recovery for some libels will and should not be more than nominal — that, at all events, the law does not proscribe a nominal verdict for the plaintiff in a libel suit.
IY. The very making of the rule of appellate review which denies reversal for failure to obtain nominal damages establishes the right of the appellate court to determine whether more than nominal damages are justified by the record. For such rule can never be applied if the tribunal empowered to apply it may not determine that the plaintiff is not entitled to substantial damages. In the Crawford case, 91 Iowa, at 677 and 679, we held that nothing more than nominal damages was due for a slander charging arson. The only question, then, which we have is whether a substantial recovery by this plaintiff could be sustained if given. We cannot conceive how it could work a substantial injury to plaintiff to publish that a house mover employed by him had been enjoined from moving a tractor over paving.laid down with the official concurrence of plaintiff as mayor, and that
It is our opinion that, if this case went to trial and the jury found all that the demurrer admits, we should be compelled to interfere if plaintiff had a substantial verdict. It follows that erroneously sustaining such demurrer effects no more than denying nominal damages and costs of suit, and that, therefore, we should not reverse for such error.— Affirmed.
Dissenting Opinion
(dissenting). — I am constrained to register a dissent from the holding of the majority upon two propositions in this ease:
1st. In so far as it holds that the second count of the petition is libelous per se.
2d. In so far as the opinion holds that the court, on demurrer, may substitute itself for a jury and determine what, if any, damages the plaintiff is entitled to recover in an action for libel, where the published words are actionable per se. Or, in other words, that where a demurrer is interposed to a suit charging libel, and the publication is in and of itself libelous per se, the plaintiff is entitled to damages, without alleging or proving special damages, and it is not for the court to say that plaintiff cannot, upon such a charge, recover more than nominal damages.
"We will take up these different questions separately. • That there may be a better understanding of this controversy, it is proper to say that the petition is in two counts. The first count alleges that, on the 6th day of June, 1913, the defendant published, of and concerning the plaintiff, the following article:
“Nevada, Iowa, June 5 — Special.—C. Durant Jones, who was mayor of Perry, has been adjudged second best in his controversy with Mayor Parley Sheldon of Ames. Furthermore, Mr. Jones must pay $15 into Ames city coffers because he was convicted by an impromptu court on the lawn of Mayor 'Sheldon’s home of exceeding the college town’s speed limit in his automobile. Mr. Jones had claimed that his automobile was within the law. When Mayor Sheldon assessed a fine, he refused to pay it, appealing to the district court. Later, a default was entered against him. Yesterday the default was set aside, after Judge Lee had listened to the arguments of attorneys on both sides. The condition imposed by the judge, however, was that former Mayor Jones pay the costs of the case and the $15 fine.”
The count alleges further that the statements of fact in
“House Mover Halted by Court. Perry Mayor involved in Peculiar Suit. Perry, Iowa, Sept. 17. — Special.—An interesting case arose in Perry today when some work being performed for Mayor Jones was halted by a temporary injunction charging that an ordinance passed during Mr. Jones’ administration was being violated. Inasmuch as the ordinance was passed with the' indorsement of the mayor, the legal actions which will follow will be watched with interest. Mr. Jones had engaged Austin Howard, a house mover, to move a building from the west part of the city to the Jones Addition in the southeast part of town. To make the trip, it was necessary to go over several paved streets with a traction engine, which is used by the house mover. The ordinance mentioned prohibits the running of traction engines which have lugs on the drive wheels, over the paving. The engine used by Howard came under the ban, and one of the citizens who recently paid for paving in front of his residence stopped the proceeding by the court action. The situation at this time presents the mayor as defendant in an action in which' he should be the plaintiff. ’ ’
The count further alleges that the statements of fact in this article were also false and untrue; that the defendant acted maliciously in publishing the same; that the publication tended to provoke plaintiff to wrath, to expose him to public hatred, contempt and ridicule, and to deprive him of the benefits of public confidence and social intercourse, all in the sum of $5,000.
“First. The petition fails to state a cause of action in this — the publications complained of’ are not in themselves libelous, and nothing is plead in either count of the petition which would justify recovery. Second. The matter plead in Count One does not state a cause of action, for the reason that the publication complained of is not, in itself, libelous, and nothing is averred or plead in the count which would make the publication of the same a libel upon the plaintiff. Third. The matter plead in Count Two does not state a cause of action, for the reason that the publication complained of is not, in itself, libelous, and nothing is averred or plead in the count which would make the publication of the same a libel upon plaintiff.”
This demurrer was sustained as to both counts, and, the plaintiff electing to stand upon his pleading, judgment was entered in favor of the defendant, dismissing plaintiff’s petition at his cost. From this, plaintiff appeals. .The only error assigned, is that the court erred in sustaining the demurrer. We will treat these counts separately.
The facts charged in the first count are that the plaintiff was adjudged guilty in the mayor’s court at the town of Ames, of running his automobile in violation of the speed limit; that, when he refused to pay the fine so adjudged against him, he appealed to the district court, and later, a default was entered against him. Thereafter, this default was set aside. ‘ ‘ The condition imposed by the judge, however, was that the former Mayor Jones pay the costs of the case and a $15 fine.”
The demurrer admits the fact that the publication was made. It'admits that the statements -therein were false and untrue; that the things did not occur as alleged; that the defendant acted maliciously.
As to the article in this first count, we agree with the majority that the words published are libelous per se. It
As to the second count, We dissent from the holding of. the court that the article published is libelous per se, for the reason that it is not sufficient that its publication disturb the mental equanimity of the party against whom it is published, or that it provoke him to wrath. It must be defamatory in order to be actionable per se. Our statute, Section 5086 of the Code of 1897, provides:
“A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.”
A violation of this statute is a violation of an inhibition enacted for the purpose of protecting a citizen from being
The plaintiff in this case is presumed to possess the intelligence and mental equanimity of the ordinary man. When we consider the allegation of this article, the mind is directed to the ordinary reading, thinking public. What impression would it make upon the mind of the ordinary reader, who had no knowledge of the facts other than as published, assuming them to be true, and reading them on that assumption, as the ordinary reader does? If the article, thus considered, could
In this second count, it is charged that the plaintiff employed one Howard, a house mover, to move a building for the plaintiff from one point in the city of Perry to another point; that the house mover found it necessary to go over several paved streets with a traction engine in order to accomplish this; that in doing so, he used a traction engine which had lugs upon the drive wheels; that there was an ordinance prohibiting him from using such engine on paved streets; that a resident of the town who had recently paid for paving in front of his residence stopped the proceeding by court action; that the plaintiff herein was made defendant in that action. It is alleged that the ordinance, to enforce the observance of which the action was brought, was passed while plaintiff was mayor of the city. We are not called upon to say what effect this publication had upon the mind of the plaintiff, but whether or not it was defamatory in its character; whether it reflected upon the good name, fame, and reputation of the plaintiff as a citizen and a right-living man in the community.
We think there is nothing in this article in itself defamatory, that defamed the plaintiff, that tended to produce any injury to his reputation, or that was, in the least, calculated to bring him into disrepute. A servant whom he had employed to move a building violated the ordinance. He was made defendant simply because of the rule of respondeat superior. He is not charged with any culpable or wilful wrong, or intentional violation of the ordinance; nor is it said that he had any knowledge of the violation of the ordinance, or participated in its violation. We are inclined to think that the mind would be supersensitive that would be even provoked to mild wrath by a publication like this, and that a reader of ordinary intelligence would not hold the plaintiff in less esteem because of these facts. Wé cannot conceive of this
“To render the letter libelous, it must be defamatory, in the sense indicated, and tend to some of the consequences specified in the statute quoted.”
A libel is a malicious defamation. Defamation is defined by Webster as a taking from another’s reputation. Words which produce any perceptible injury to the reputation of another are called defamatory. See Hollenbeck v. Hall, supra; Mosnat v. Snyder, 105 Iowa 500. No publication is libelous that is not defamatory. Nothing is defamatory unless it produces some perceptible injury to the reputation of another. There was nothing in this publication that reflected upon the reputation, character, integrity, good name, or fame of the plaintiff, or that could tend to bring him into public scandal, or in any way affect his character or reputation injuriously. The worst that can be said for this article is that its publication might have a tendency to provoke the plaintiff to wrath, and this is not sufficient to make it libelous per se.
This brings us to a consideration of the second proposition ; and, in the consideration of this proposition, we assume, as the majority does, that the article published and complained of was actionable per s&; that it was a malicious defamation of the reputation and character of the plaintiff in the community in which he lived; that it tended to provoke him to wrath, expose him to public hatred, contempt or ridicule, or to deprive him of public confidence and esteem. To be actionable per se, under the theory of the majority, the publication must be in violation of the inhibition of the statute hereinbefore set out. To violate this inhibition, the article published must be defamatory in its nature, must tend to take
The pertinent question then is, Can the court on demurrer say, as a matter of law, that an article so published of and concerning another amounts simply to an invasion of his right to have his good name unmolested, and entitles him to simply nominal damages for the invasion of such right? Can the court on demurrer say that one who has a right, under the law, to have his good name unassaulted and unmolested in the community in which he lives — except it be by his own act —is not entitled to more than nominal damages from one who has publicly, through the prints, assaulted his good name, traduced his character, and held him up to ridicule among his neighbors? The answer of the majority is:
“Yes, in some cases, not in others. That depends upon the extent of the injury inferable from the naked publication. The character of the publication may indicate that he is 'entitled to substantial damages, or the character of the publication may indicate that he is not entitled to more than nominal damages, and this fact the court may determine and dispose of on demurrer.”
That is, the majority assumes that, even when an article is a violation of the inhibition of the statute, subjecting the violator to a criminal prosecution, yet one who has suffered from the wrong may not recover more than nominal damages, in certain instances, and the court may, on demurrer, determine this question. If the court, on demurrer, may determine that the plaintiff is entitled only to nominal damages, then the court, on demurrer, may assume the position of a jury and assess such damages as the court, in its judgment, upon a mere reading of the article, concludes would fairly compensate plaintiff for the wrong done. As soon as it is assumed that the article is libelous per se, and that the plain
“It is very often the case that a vile and malicious slander may not seriously injure the reputation or business of its victim, and still cause him such mental pain and suffering as to practically unfit him for business, and for that social intercourse with his friends and neighbors which would otherwise be had. . . . We hold that such pain and suffering may be considered by the jury in determining the amount of damages in cases where the words spoken are actionable per se.”
As to the allowance of punitive damages where express malice is shown, under a general charge of malice, see Dahl v. Hansen, 152 Iowa 555; also Brandt v. Story, 161 Iowa 451, in which it is said:
“Where the words are spoken, and shown to be spoken, without any belief in their' truth, or reason to believe that
In Andreas v. Hinson, 157 Iowa 43, it is said:
“The charge made against the plaintiff was slanderous per se, and malice was, therefore, implied. The plaintiff was not, for that reason, precluded from proving malice in fact. For that purpose, he had a right to submit to the consideration of the jury the entire conduct and mental attitude of the defendant at the time of the publication of the slanderous words. It is urged that the verdict was excessive, and that only nominal damages should have been allowed. The verdict was $300. The amount of the verdict does not indicate any passion or prejudice. The jury having found that the slanderous word was used by the defendant in an actionable sense, .actual damages were implied, without any formal proof as to the amount thereof. It is not true in such a case, that only nominal damages can be allowed. The amount of damages in süch a case is peculiarly within the discretion of the jury,” citing authorities. See’ Emerson v. Miller, 115 Iowa 315.
If the contention of the majority is to be sustained, and is to be hereafter a rule to guide the trial courts in cases of this kind, we have this situation: The plaintiff makes the formal allegations in his petition from which it is apparent that the party charged has been guilty of a wilful and malicious defamation of his character; has published of him that which tends to affect his good name and reputation in the community in which he lives; holds him up to scorn and ridicule in a way that might reasonably be considered as provoking him to a breach of the peace; has said that about him which tends to injure him in the enjoyment of society, — which tends to throw contempt upon him, which might affect his general fortune and comfort, which might cause him to suffer
“A good reputation is a valuable asset in any community; your right to have your character unmolested in the community has been invaded; the publication was malicious; it was defamatory in its character; it reflected upon your good name and reputation in the community in which you lived; it had a tendency to provoke you to wrath, or a breach of the peace, or to expose you to public hatred, contempt or ridicule, or to deprive you of the benefits of public confidence, or social intercourse; yet it is my opinion, upon the naked allegations of your petition, without a showing, except as it appears in the petition, of the extent of the injury suffered by you from this wrong, that you are not entitled to recover more than nominal damages — those damages which are ordinarily allowed for the invasion of a right where no actual damages are suffered.”
If the court is permitted, from the naked allegations of the petition, to determine that the plaintiff is not entitled to recover more than nominal damages, then, upon the naked allegations of the petition, in every ease of this kind, the court is allowed, on demurrer, to assess such damages as in his judgment, from a consideration of the petition alone, the plaintiff is entitled to recover, and thus deprive the plaintiff of a right to be heard upon the fact question as to the amount of damages which he has actually sustained.
The cases relied upon by the majority are not in point. Those cases are only authority for the holding that, where a case has been fully tried before a jury and all the facts presented to the jury, and the jury has determined that plaintiff is not entitled to recover, .this court will not reverse upon that record, when, from an examination of the whole record, it is of the opinion that the jury erred in not allowing the plaintiff nominal damages; that, where this court finds, upon an examination of the whole record as made, that the plaintiff could,
As to« the first count of the petition, the words spoken being actionable per se, we think the court erred in sustaining the demurrer.
As to the second count of .the petition, the words published not being actionable per se, and no special damages being alleged, we think the court rightfully sustained the demurrer.
"We would reverse as to the first count and affirm as to the second count.
Concurrence Opinion
(concurring). — I concur in the affirmance. I think, also, that neither count of the petition shows a publication which is defamatory.
Concurrence Opinion
I concur in the affirmance on the grounds stated by Justice Evans.
