190 N.W. 320 | S.D. | 1922
This is an, action for libel in which the complaint is, in substance, as follows:
That plaintiff is a resident of the city of Watertown, this state, and has been such for 20 years. That he is a practicing lawyer engaged in a general law practice in said city. That since May, 1915, he has been city attorney of Watertown. That since January 1, 1921, he has been state senator from Codington county. That defendants for many years past were publishers and proprietors of the Watertown Herald, a weekly newspaper published in said city, with a circulation in said city and county and counties adjoining. That on July 14, 1921, defendants, being editors and managers of said newspaper, did willfully, unlawfully, and viciously, with intent to injure plaintiff in his occupation and profession as an attorney at law, and with express malice toward plaintiff, and for the purpose of injuring plaintiff in his occupation and profession, and discredit plaintiff as city attorney aforesaid and interfere with his making a livelihood in said city and county, and for the purpose of destroying the confidence of residents of said city in him as city attorney, and destroying the confidence of residents of said county and state in him as an attorney, and exposing plaintiff to' hatred, contempt, obloquy, and causé him to be shunned and' avoided by society, did write, print, and publish in said newspaper on said July 14th concerning plaintiff, the following scandalous and malicious libel, in words and figures to-wit:
“Came, Saw and Conquered.
“Genial Advance Agent of Circus Saves Money for Show. “ ‘Dogs and Ponies.’
“Adamantine Heart of City Attorney” (meaning this plaintiff) “Touched by Pathetic Plea?
* % 5{c j{c ‡
That by reason of said false, malicious and defamatory publication, plaintiff has been injured in his profession as an attorney and his standing as city attorney, and in the estimation of residents outside of said county. That said articles were written and published concerning plaintiff for the purpose of exposing him to contempt, ridicule, and obloquy, and cause him to be shunned and avoided by all good society.
For second cause of action, after setting forth the preliminary, in substance, as stated in the first cause of action, plaintiff alleges the publication by defendants on July 21, 1921, of another article' in the same paper and that the same was published willfully and maliciously, with intent to injure plaintiff in his occupation and profession, with express malice toward plaintiff, and with purpose of injuring him as city attorney of said city, and for the purpose of destroying confidence of the people of said city and adjoining counties in him as a public official, and to expose him to hatred, contempt ,and ridicule, and cause him to be shunned; that they wrote, composed and printed and published in said newspaper on the editorial page thereof the false and malicious libel following:
“June 25, in 1918, when A. T. Hopkins was mayor, an ordinance regulating circuses and setting the price of licenses was passed. The ordinance is known as ordinance B-38 and regulates the price as follows: ‘If admission fee is more than fifty cents then $300 is fixed as the license fee. If twenty-five cents to fifty cents is charged, then the fee is fixed at $250 per day. If 25 fcients per person is charged, then a fee of $50 is fixed. This being the lowest legal rate.’ However the Rhoda Royal Crcus, which showed here Wednesday of last week, was given a license
By reason of said publication plaintiff has been injured in-his profession and in his standing as city attorney and as a public official of said city and in the estimation of people of the counties outside of said county to whom such publication came. That said article was published for the purpose of exposing plaintiff to-hatred, contempt, and ridicule, and to 'cause him to be shunned.. That more than three days prior to1 commencement of this action plaintiff caused notice to be served upon defendants to retract the statements aforesaid, but defendants have never made any retraction. That by reason of publication of said1 articles plaintiff has been -damaged in the sumí of $25,000, for which he prays judgment.
To the complaint defendants interposed a demurrer to both the first and the second cause of action, on- the ground that the
Does the article published constitute libel? Starkie on Slander, vol. i, p. 169:
“Upon the whole it may be collected that any writings, pictures or signs, which derogate from' the character of an individual, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts, by exposing him to disgrace or ridicule, are actionable, without proof of special damage; in short, that an action lies for any false, malicious, and personal imputation, effected by such means, and tending to alter the party’s situation in society for the worse.”
Quoted with approval by this court in Barron v. Smith, 19 S. D. 50, 101 N. W. 1105. From Parmelee v. Nottage, 119 Minn. 351, 138 N. W. 312, 42 L. R. A. (N. S.) 870, this court quoted with approval the following:
“A charge need not be made directly; indeed, the venom and sting of an accusation is usually more effective when made by insinuations. The floating calumny which each reader may affix to any and every official act which his aroused suspicion may lay hold of is capable of inflicting graver injury and injustice than a direct, specific charge, which may be squarely met and refuted, if untrue.”
In Hutchins v. Page, 75 N. H. 215, 72 Atl. 689, 31 L. R. A. (N. S.) 132, it was held:
That “a tax collector who, in addition to posting- the notices of sales of delinquent taxes, required by. law, publishes the fact of delinquency in newspapers for the purpose of maliciously pn> claiming to the public that the taxpayer was delinquent,' and not in the belief that such advertisement was essential, * * * is answerable for libel, although the statement was in fact true.” •
Here the court said:
“It was not his duty [the collector] to otherwise publish the fact, unless he thought such publication was essential to the success of the tax sale. If he did not so believe, but, on the contrary, used this occasion to maliciously proclaim in a public manner that the plaintiff had not paid his taxes, there is neither legal nor ethical reason why an action should not lie for the damage caused by the malicious and unwarranted act.”
The order of the lower court overruling defendants’ demurrer is affirmed:
Note1 — Reported in 19 0 N. W. 32 0. See American Key-Numbered Digest, Libel and Slander, Key-No. 10(3), 25 Cyc, 243, 244, 25 Cyc. 346, 350, 17 R. C. L. 355, note 18.