161 Iowa 671 | Iowa | 1913
Lead Opinion
A very large part of tbe record is taken up with tbe pleadings in tbe case, which are extremely voluminous. Some of tbe propositions relied upon have reference to these pleadings, but, instead of setting, them out in extenso, we shall, at a proper time, make sufficient reference thereto to elucidate tbe exact points presented.
Midnight Revels Ordinary Resort of Young People — Cherokee is Shaken to Center by Disclosures of Yicious Habits among Persons under Age — Drunkenness is Common— Girls and Boys Mixed in Escapade in Which Drinking is Carried to Point Passing Belief.
Cherokee, la., Jan. 13. A series of revels of high schools boys and girls of this place, culminating in a ‘Little Egypt’ dance on the stage of the opera house, following a performance of ‘Uncle Tom’s Cabin,’ has resulted in the indictment 'of seven young men, the commitment of one girl to the state reformatory and the placing of a number of boys and girls under probation.
The investigation carried on by County Attorney Walter McCulla has scandalized this community. It was found that a number of high school boys and other young men about town had been bringing liquor into the town and staging some high life parties on the steps of the courthouse, in a vacant house and in the opera house.
The story of the jamboree of three young men and three girls in the opera house i§ told here. It is said that all were
Another party of five young men and the same number of young women is said to have been ‘put on’ in a vacant house, from which all went away under the influence of liquor. The skating rink and the courthouse steps were also favorite scenes for the orgies, it is said.
The Offending Parties.
The arrests made thus far have been those of Miss Olive Minor, who has been placed in the state reform school; Roy Wadsley, the twenty year old son of a wealthy retired farmer of Cherokee; Frank Edwards, a twenty year old boy whose father is at the head of the Cherokee Bottling Works; Henry Cooper,'a resident of Cherokee; and C. J. Snyder, who is the owner of a drug store at Cleghorn, Iowa.
A third boy, who is sixteen years old, pleaded guilty to the charge of selling liquor to minor'girls. The youth’s mother is ill at the present time and his name would not be disclosed, Wadsley and Edwards were charged with selling liquor to minor girls. The other two youths, against whom are indictments for selling liquor to minor girls, will probably be taken into custody on Monday, says Mr. McCulla. Snyder and Cooper were charged with maintaining a nuisance, the former, it is alleged, has sold liquor at his drug store in Cleghorn, and the latter at his residence in Cherokee.
Three other young girls, no one of whom is over eighteen years, and one of whom has already spent some time in the state reformatory, are now on probation and will be committed to that institution on their next offense, according to the county officials. One of the three is still in attendance at the high school. No information has been filed against the three girls as yet.
Curfew Law Again.
The investigation has also disclosed conditions that have moved the city council of Cherokee to re-establish the 8:30 o’clock curfew. Some remonstrances have been filed against
It is said the employees of the opera house have been using their keys to return to that building late at night and put on jamborees. .The special instance partially disclosed by the investigation of the county attorney,, revealed some thrilling facts. One of the girls in the party was about twenty-one years old, but the other two were fifteen and sixteen years of age. The employee of the house is about twenty-six years old, but the other two boys are sixteen and twelve years, respectively. The party followed a performance of ‘Uncle Tom’s Cabin’ and the drinking is said to have consisted mostly of beer. All six were intoxicated and the youngest girl is said to have staged such a -dance as was never before seen in Cherokee.
Many Intoxicated.
Special instances of drinking on the courthouse steps and in the skating rink were also disclosed. The party of ten in the vacant house was found out because some of the participants were so drunk they couldn’t get away, according to the statements of a resident here.
Nearly all the persons implicated in the affair are under age. Several of the boys and girls attended the high school last fall, but dropped out as the season advanced. Some of them are said to be in school at the present time.
The investigation was the outcome of vague rumors circulated about the town of the stew-bum parties and the complaints of drunken men appearing on the streets. Cherokee is a dry town. It is thought by the county attorney that most of the liquor was shipped in from Sioux Falls.
The town is still in great commotion and further developments may appear before the investigation ends.
The head lines of the article were written by the telegraph operator, since deceased.
Plaintiff alleged that:
In the printing and publishing of said article, the said defendant intended maliciously to and did charge this plaintiff with having engaged in the illegal gale of intoxicating
The defendant, among other things, admitted the publication of the article, save that it bore the following introduction, “Special to Tribune;” denied that it was actuated by malice in making the publication; denied that it was wholly false as alleged and denied that it was defamatory or libelous; denied that it was intended to or did -charge that plaintiff was guilty of the illegal sale of liquors to pupils or members of the Cherokee High School; alleged that the publication was, in all respects, substantially true and that it was printed without malice, for good motives and justifiable ends and simply as a matter of news. As a further defense, the answer pleaded in justification matters which will be referred to in another division of this opinion. And further pleaded that: “. . . Said publication was a report of proceedings of a court of record and was substantially true as published; and that the same was published without malice, with good motives, and for justifiable ends; and that said publication was privileged.” Defendant also alleged: “. . . That with the exception of the allegation in said article as published that
Various motions and demurrers were filed to these pleadings and to specific parts thereof, and parts of the petition were stricken, but the answer stood substantially as quoted, and the case went to trial on the issues thus joined; the jury returning a verdict for defendant.
The statute referred to is 305 of the Code, which, so far as material, reads as follows: “No county attorney shall . . . .be directly or indirectly engaged as an attorney or otherwise for any party other than the state or county in any action or proceeding pending or arising in his county, based upon substantially the same facts upon which a prosecution or proceeding has been commenced or prosecuted by him in the name of the county or state. ’ ’
Conceding, for the purpose of argument, that plaintiff’s objections were timely and raised the question in a proper manner, it is manifest that the statute does not apply here, for the obvious reason that the county attorney was not appearing in a civil case in the county of which he was the prosecuting attorney. Bellison v. Apland & Co., 115 Iowa, 599.
Moreover, plaintiff had pleaded guilty to the offense of the illegal sale of liquor before the county attorney appeared for defendant, and the alleged libel, as stated in the petition, had no reference, according to plaintiff’s contention, to the facts upon which he was being prosecuted in Cherokee county.
Aside from this, however, it was distinctly held in State v. Smith, 108 Iowa, 440, that plaintiff’s objections came too late.
Upon the latter matter, the reporter, on cross-examination by plaintiff’s counsel, testified as follows:
When I say the article was correct in so far as Mr. Snyder I have in mind his indictment for the illegal sale of liquor. Q. You don’t pretend to say that the article is correct in connection with these high school orgies? Court: He testified it is a correct report of what Mr. McCulla told him. Mr. Sears: I didn’t understand it that way. If it is understood the record of his testimony is that the article is correct interpretation of what Mr. McCulla told him, then I don’t care to press this line of questions. A. That is exactly what I said. Q. Then, so far as you know, you can’t say whether or not the allegations in the article are true or false, can you? A. No, sir; only I have been informed— Q. Never mind what you have been told. Hearsay isn’t good testimony.
On cross-examination of Kelly, counsel for plaintiff also brought out the following:
Q. As a newspaper man you say that the article, Exhibit A, introduced by the plaintiff, of which he complains, was so worded that Mr. Snyder nor any one else could think he was connected with the high school escapade? A. I wouldn’t say any one else, but I submit that a fair interpretation of it, in accordance with the construction of language and of words, does not charge him with this offense at Cherokee. So far as I am concerned personally in my judgment that article, Exhibit A, wouldn’t be understood and shouldn’t be understood by any one as charging him with being connected with the high school escapades, . . . Q. If in your judgment after reading the article, Exhibit A, you thought it couldn’t be understood by any one reading it as an item of news that*681 Snyder was in any way implicated with the high school escapades, why, then, did you publish these two articles, Exhibits 2 and 3, specifically calling attention to the fact he wasn’t intended to be connected with it? (Defendant objects for the reason Exhibit 3 isn’t in evidence. No ruling.) A. Because of the general rule in my office never to injure anybody needlessly or in any way, if we can avoid it, and because of the rule as published at the top' of the editorial page that includes a notice where injury has been done, perhaps unconsciously, through the management of the paper, notifying them to call attention to it that they may obtain retraction, No one called my attention to this article, Exhibit A. No complaint was made to me by the plaintiff or anybody for him. . . .
As this matter seems to have been brought out by plaintiff himself on cross-examination, he has no cause for complaint.
This latter case is also authority for the proposition that the libelant may testify as to the sources of his information, not to mitigate actual damages, but to negative express or actual malice. See also, to the same point, Marker v. Dunn, 68 Iowa, 720; Wallace v. Homestead, 117 Iowa, 348; Hinkle v. Davenport, 38 Iowa, 355.
Cherokee Youths Plead Guilty to the Indictments — Opera House Stage Manager, in Default of Payment of $200 Fine is Serving Jail Sentence — Snyder Not Implicated— Cleghorn Druggist and Cooper Charged with Selling Liquor to Persons Other than Those Indicted.
Special to the Tribune.
Cherokee, la., Jan. 17. — Prosecution upon the indictments returned by the grand jury last week, charging well known young men of Cherokee with giving liquor to minors, is proceeding in the district court as rapidly as the cases can be taken up.
George Edwards, janitor and stage manager of the Grand Opera House, pleaded guilty to the charge and was fined $200, in default of the payment of which he is serving a sentence of sixty days in jail. He is twenty-four years of age and a married man. His wife is suing for a divorce.
A young man whose name is withheld because of his mother’s serious illness, plead guilty and was fined $25.
Crowd at Courthouse.
The cases of Frank Edwards, aged twenty, and Roy Wadsley, aged twenty, stage hands at the opera house, were taken before Judge Oliver in the district court yesterday. The court-room was filled with an expectant throng of men and boys who apparently expected to hear some racy testimony. After a delay of an hour waiting for the principal witness subpoenaed by the state, Miss Byrd Casey, it was discovered that the bird had flown. '.
Miss Casey is said to have taken the morning eastbound train bound for a destination unknown to the attorneys in the ease. The impression around the courthouse seemed to be
Wadsley’s case, at the request of his attorneys, Molyneux & Mayer, was continued until the next term of court, which opens March 18, being set for the second jury trial at that time.
Snyder’s Case Different.
While the grand jury,' at the same time the .indictments were brought against the foregoing young men, returned an indictment against C. J. Snyder, a drúggist at Cleghorn, Iowa, charging him with maintaining a nuisance there in that he sold liquors illegally, and another indictment against Henry Cooper, a resident of Cherokee, charging him with selling liquors illegally at his house in Cherokee, it is stated by County Attorney Walter McCulla that these indictments had no connection with the prosecution of the young people whose ‘can parties’ and other convivial functions have become notorious in Cherokee.
Neither Snyder nor Cooper is accused of selling liquor to the boys who have been indicted for staging the merry drinking parties with young friends of the fair sex. The cases against Snyder and Cooper have not yet been set for trial.
Regretted in Cherokee.
The reckless behavior of this coterie of ‘sporty’ young people is a matter of great regret to the citizens of Cherokee. They particularly deprecate the connection of the affair with the high school, in which they take great pride, and declare that only one of the accused participants was a high school pupil at the times the ‘orgies’ were being conducted. It is further stated that this high school girl had no part in putting on any ‘Little Egypt’ dance, if such a stunt was ‘pulled off.’
No petition was filed pursuant to the original notice served on January 15th, and this action was not commenced, until March 13, 1912. After showing the service of the
This second publication was no part of the res gestee, and it was not published until after plaintiff had commenced an action by the service of an original notice. If admissible at all, it was only in mitigation of damages; and as the statute (Code, section 3593), requires that all mitigating circumstances, save such-as are shown by, or grow out of, the testimony adduced by the adverse party, be pleaded, the error is apparent. Ronan v. Williams, 41 Iowa, 680; Halley v. Gregg, 82 Iowa, 622.
Moreover the court, after receiving this testimony, which in no event could be considered, so far as defendant is concerned, except in mitigation of damages, gave no instructions upon the subject and left the jury to deal with this testimony as it would; and that prejudice resulted from admitting the second publication in evidence, without in any way limiting its effect upon the ease, we have no doubt.
A demurrer was interposed to these defenses pleading the truth of the matters charged in the article, because the justification was not as broad as the charge and of the very charge, and to other parts of the answer setting up, as a defense, justification and privilege, because the article was a report of certain court proceedings. We are of opinion that the demurrer to some of the divisions of the answer should have been sustained. The law is well settled that the plea of justification, based upon the truth of the article must be as broad as the charge and of the very charge. Forshee v. Abrams, 2 Iowa, 571; Hollenbeck v. Ristine, 105 Iowa, 489; Beardsley v. Bridgman, 17 Iowa, 290; Clifton v. Lange, 108 Iowa, 474; Berger v. Publishing Co., 132 Iowa, 290; Prewitt v. Wilson, 128 Iowa, 198; Morse v. Printing Co., 124 Iowa, 707.
As said in Prewitt v. Wilson, supra: “Justification or avoidance of an act which is not charged, or of a matter which is not confessed, is both illogical and absurd and presents no issue. ’ ’ Aside from the allegation in the petition that the entire article was false, defamatory, and untrue, there was no allegation that the statement in the article with reference to plaintiff having been charged with maintaining a nuisance and having sold liquor in his drug store at Cleghorn was the matter complained of, and there is nothing to indicate that this was the matter which constituted the libel.
As said in Wallace v. Homestead Co., supra: “An innuendo is not an averment but only matter of explanation. It means nothing more than the words ‘id est,’ ‘scilicet,’ or ‘meaning,’ or ‘aforesaid,’ as explanatory of a subject-matter sufficiently expressed before; as such a one meaning the defendant, or such a subject meaning the subject in question. An innuendo cannot extend the sense of the expressions in the alleged libel beyond their own meaning. Where the words used are ambiguous or admit of different applications, an innuendo may confine or direct them but cannot extend the intendment of an expression beyond the customary meaning. If this were not true, an explanation of- antecedent matter would be converted into a direct averment.”
Applying this rule, appellee contends that the language used will not bear the interpretation placed upon it,' and that, as the only charge which was made was the illegal sale of liquor, its plea of justification was good.
In McClintock v. Crick, 4 Iowa, 455, this court, speaking through Wright, C. J., said:
In the first answer, however, there is what is claimed to be a plea in justification, which is not contained in the second, and it is urged that the court erred in sustaining plaintiff’s demurrer to such- plea. The substance of this portion of the answer is as follows: ‘And for a further answer defendant says that the said plaintiff, either in person or through his (plaintiff’s) children and with plaintiff’s knowledge and consent, did kill, take, and carry away, and appropriate to his own use, chickens belonging to defendant.’ To understand this language, it is proper to state that plaintiff claims that defendant charged him, on several occasions, with stealing his (defendant’s) chickens. That this allegation of the answer is wanting in almost every essential to make it a good plea of justification is most manifest, It fails to confess the*688 speaking of the words. See Starkie on Slander, 248. It fails to set forth such matters as fix upon the plaintiff any crime,.much less the specific one imputed to him by the words charged in the petition of plaintiff. The justification, so far from being in point of law, identical with the charge in the petition falls short of justifying any offense or of showing that, in the taking of said chickens, there was any crime whatever. That a plea which relies upon the truth of the words spoken, as a bar to recovery, is fatally defective, which is wanting in the particulars above suggested, is well settled. See 1 American Leading Cases, 178, and cases there cited.
Again in Fountain v. West, 28 Iowa, 9, the court said:
Nor did the court err in refusing to allow another witness, on the trial, to testify ‘that the plaintiff was in the habit of committing larcenies; that he had stolen large quantities of timber, corn, posts, etc., and was thereby guilty of all manner of meanness and rascality.’ The court certifies that it sustained the objection to this evidence on the ground that the substantial charge, in the alleged libelous writing, was that plaintiff had poisoned Geqrge West’s cattle, and the remainder was aggravatory matter to the main charge. The court accordingly confined the defendants, in proof of their justificatory plea, to facts and circumstances tending to prove that the plaintiff did poison the cattle. In our judgment the view of ,the court was manifestly correct.
In that case the libel charged by the plaintiff was as follows:
We, whose names are hereto affixed, have good reason to believe, from circumstantial evidence and from threats that have been made to certain individuals, that you are the man that poisoned George West’s cattle; knowing that you are a man who is guilty of all manner 'of meanness and rascality, and a man that bears the worst character of any man in Harrison county, and the only man we believe would be guilty of the like, therefore, if you are hereafter known to be guilty of any more villainous conduct or any more stock poisoning, you will be dealt with as justice may demand.
Again in Halley Gregg, 82 Iowa, 622, the court said:
We think the court did not err in striking the parts of the pleading upon this motion. The amendment to the answer clearly showed an attempt to plead matter (other words spoken and written) constituting wholly new transactions as a defense to the action. He does not plead these matters in justification or in mitigation but denies the speaking of the words and the making of the writing and declares as a defense to the action that he did speak other words and publish other writings of and concerning the plaintiff which are true, and therefore. the plaintiff ought not to recover. We need not waste time in pointing out the great error of this kind of pleading. It would lead to the trial of issues not in the ease, which could be indefinitely multiplied by defendant. He could bring before the court in his pleadings all he ever said or wrote to the plaintiff’s discredit and demand that issues be found thereon and tried by the court. The district court, we think, rightly sustained the motion to strike the amendment to the amendment and rightly ruled in excluding evidence offered as to matter of the character pleaded in the amendment stricken. . . .
In one division of defendant’s answer, it pleaded: “And further answering in defense the defendant, alleges that said publication was in all respects substantially true; and that said article was printed and published without any unkindness, ill will, or malice towards the plaintiff, and with good motives, and for justifiable ends, and for the sole purpose of giving, as information to the public, the true facts. ’ ’ To this plaintiff filed a motion to strike and a demurrer and both were overruled. Under the doctrines announced in the cases just cited, these rulings were erroneous.
Again defendant pleaded: “And further answering as
Appellee’s claim that the language used in the article complained of will not bear the interpretation put upon it by the innuendo is unsound, and hence almost the entire structure of his argument falls. Appellee admits that, if
In other words, defendant was permitted to prove the truth of the article on its theory that it did no' more than charge the keeping of an ordinary liquor nuisance, while plaintiff was denied the right to show that he was not in any manner connected with the orgies referred to in the article or to prove in rebuttal of defendant’s testimony advanced in justification that he was not in any manner connected with the orgies charged and that the article as explained in the innuendo was entirely false and untrue.
Of course plaintiff cannot complain of the testimony brought out by his counsel on cross-examination. We are not to be understood as saying that it was necessary for plaintiff to introduce any testimony as to how the readers of the article understood it. But we do think that it was a fair question for the jury to say whether or not it would reasonably bear the interpretation placed upon it by the innuendo. At any rate, because of the instructions asked, plaintiff has no ground of complaint.
For the errors pointed out, the judgment must be, and it is, Reversed.
Dissenting Opinion
(dissenting). The publication set forth in the petition was libelous per se without innuendo. The innuendo purported to set forth additional meaning or intent in such publication. I think, therefore, that the defendant was entitled to plead the truth of the publication in justification and yet deny the innuendo. Where a defamatory meaning is apparent on the face of the alleged libelous publication, no innuendo is necessary. If pleaded, it may be insisted on by the plaintiff or be ignored and treated as surplusage.
In the case before us, the innuendo could be treated as Surplusage at any stage of the trial or the jury could reject the same upon submission; and yet this would not necessarily defeat plaintiff because his petition set forth a publication libelous per se, regardless of innuendo. The only defense which defendant has is to plead the truth thereof as justification. By the majority opinion he is not permitted to plead such justification unless he confess the innuendo. If the innuendo were essenldgl to the cause of action, a different
Odgers lays down the rule as to “Justifying the Innuendo” as follows:
Justifying the Innuendo. Again the plaintiff often attempts by the aid of an innuendo in his statement of claim to give the words a secondary meaning different from that which they would naturally bear. In such a case the defendant may justify the words either with or without the meaning alleged in such innuendo, or he may do both. Watkin v. Hall, L. R. 3 Q. B. 396; (37 L. J. Q. B. 125; 16 W. R. 857; 18 L. T. 561). He may deny that the plaintiff puts the true construction on his words and assert that, , if taken in their natural and ordinary meaning, his words will be found to be true; such a plea involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel. Digby v. Financial News, Ltd. (1907) 1 K. B. at page 507. Or he may boldly allege that the words are true even in the worst signification that can be put upon them. But a defendant may not put a meaning of his own on the words and say that in that sense they are true, for, if he deny that the meaning assigned to his words in the statement of claim is the correct one, he must be content to leave it to the jury at the trial to determine what meaning the words naturally bear. Brembridge v. Latimer, 12 W. R. 878;. (10 L. T. 816). Nor may he plead, £I did not publish precisely the words stated in the claim, but something similar, and that something similar is true in substance and in fact.’ Rassam v. Budge (1893) 1 Q. B. 571; (62 L. J. Q. B. 312). If the defendant pleads simply that the words are true without any reference to the innuendo, he must be prepared at the trial to prove the words true in whatever sense the jury may think it right to put upon them. Ford v. Bray (1894) 11 Times L. R. 32. But, if he pleads in the more qualified form that ‘the words without the said meaning’ are true, he will not*694 be allowed at the trial, should the jury deem the said meaning the true one, to turn round and give evidence that the words in that sense are true. (Odgers on Libel and Slander (5th Ed.) pages 188, 189.)
The following excerpts from Words and Phrases, vol. 4, page 3631, is a sufficient indication of the general state of the authorities on this question:
When the new matter stated in an innuendo is not necessary to support the action, it may be rejected as surplusage. Cooper v. Greeley (N. Y.) 1 Denio, 347, 361; Thomas v. Croswell, 7 Johns. (N. Y.) 264, 271 (5 Am. Dec. 269).
The office of an innuendo is to aver the meaning of the language published; but if the common understanding of mankind takes hold of the published words, and at once, without difficulty or doubt, applies a libelous meaning to them, an innuendo is not needed and, if used, may be treated as useless surplusage. Wood v. Boyle, 177 Pa. 620 (35 Atl. 853, 854, 55 Am. St. Rep. 747); Continental Nat. Bank v. Bowdre, 92 Tenn. 723 (23 S. W. 131, 134); Benton v. State, 59 N. J. Law, 551 (36 Atl. 1041, 1043). See, also, Grand v. Dreyfus, 122 Cal. 58 (54 Pac. 389, 390).
“The term ‘innuendo’ is used in the law of slander and libel to designate the averment in the plaintiff’s statement of claim of the construction which he puts upon the alleged libelous words and ‘which he will endeavor to induce the jury to adopt.’ ‘Where a, defamatory meaning is apparent on the face of the libel itself, no innuendo is necessary, though even there the pleader occasionally inserts one to heighten the effect of the words; but where the words prima facie are not actionable an innuendo is essential to that action. It is essential to bring out the latent injurious meaning of the defendant’s words, and such innuendo must distinctly aver that the words bear a specific actionable meaning.’ ”