24 S.D. 501 | S.D. | 1910
Lead Opinion
This is an action for libel, and it is alleged in the complaint: “That on the 6th day of February, 1908, the defendant was the editor, publisher, and properietor of the Waubay Clipper, a weekly -newspaper published at Waubay in said Day county, S. D. That on the 6th day of February, 1908, the defendant maliciously composed and published concerning the plaintiff, in said newspaper, the following false and defamatory words, to wit: ‘Will the farmers of Day county vote to retain in power a man who entered a- combination to kill competition ,of the lumber business in Webster? That was the object of the .Williams lumber trust of Webster, which the ‘state government is now investigating. They have levied tribute on every board you buy. If there is a man who thinks of voting for the rotten machine of which Dave Williams is head engineer, let him reflect. Let him reflect. Do the citizens of .Day county like the idea of the man who is one of the chief figures in the lumber trust being the political leader in Day county? That is what the evidence of Mr. Ebert in the lumber investigation conclusively showed. What a spectacle for gods and men.’ That said words and statements were false, malicious, and defamatory; that the said defendant by
To this complaint the defendant filed an answ'er, the material parts of which are as follows: “Defendant admits that plaintiff is a resident of Day county, S. D.; admits that he is in the banking business and that he is president of the Farmers’ & Merchants’ National Bank, and that he is or was president of the Williams Brothers Dumber Company. Defendant further admits that on February 6, 1908, he was the publisher of the Waubay Clipper, published at Waubay, S. D., and further admits that on said 6th day of February there was published in said newspaper the articles set forth in paragraph 3 of plaintiff’s complaint, but defendant alleges in reference thereto that said articles were not published together in said paper nor- one immediately after the o£her, but that they appeared in separate and distinct portions of said paper. Defendant specifically denies that the said articles, or either of them, were false or malicious,
To this answer the plaintiff demurred on the ground: “That the facts stated in said answer are not sufficient to constitute a defense.” The demurrer was sustained and, from the order sustaining the demurrer, the defendant has appealed, and it is assigned as error that the court erred in sustaining plaintiff’s demurrer to the amended answer.
It is contended by the appellant that under the provisions of section 142 of the Code of Civil Procedure which provides: “The defendant may in his answer allege both the truth of the matter charged as defamatory and any mitigating circumstances, to reduce the amount of damages, and whether he prove justification or not, he may give in evidence the mitigating circumstances” ; that the answer in this case must be held to be suffi
it is contended by the respondent, in support of the decision of the trial court in- sustaining the demurrer, that the allegations of the answer are insufficient to constitute a justification on the part of the defendant; that the facts alleged in the answer failed to show that it was a privileged communication, and that there are no sufficient facts alleged to constitute mitigating circumstances. it is somewhat difficult to determine the precise nature of the answer, but we may presume that the pleader intended to set up justification of the alleged libelous article; that he intended to plead that the article published was a privileged communication, and that he intended to plead facts constituting mitigating circumstances for the purpose of reducing the damages. If the answer was not sufficiently definite and certain, the defendant should have been required, on motion, to so amend his answer and set out the defenses separately, in order that the plaintiff might be able to determine therefrom the precise nature of the defenses sought to be interposed by the defendant to the allegations of the complaint. As no .such motion was made, however, and the plaintiff has demurred to the entire answer, the rule is well settled that if the answer contains a good defense to the action, either as a full defense or partial defense, the demurrer should have been overruled.
In 6 Kncy. P. & P. 301, the rule is thus stated: “A demurrer which is too large — that is to say, which reaches the whole pleading — cannot be sustained if the pleading is good in part, and this rule applies alike to the declaration or complaint, and to all subsequent pleadings, and, if a declaration or complaint, though defective in part, contain one good count, a general demurrer to the
Section 770 of the Penal Code of this state defines a trust or monopoly as a combination of capital or skill by two or more persons to increase or reduce the price of commodities or to' fix any standard or figure whereby the price to the public shall be' in any manner established or controlled. And section 776 provides that any combination entered into between persons, co-partnerships or corporations with intent to prevent fair and. full competition in the sale of an article of domestic use, and which does in fact so tend or which tends to advance the price to the user of any commodity of domestic use, beyond the reasonable cost of production or manufacture thereof, or that tends to advance the price to the purchaser of lumber imported into this state, is declared to be against public policy and unlawful; and any person who shall be a party to such unlawful combination is to be deemed guilty of felony.
It will be observed that the charge' made in the alleged libel clearly brings the respondent within the terms of these sections, and unless the appellant is able to justify by allegations and proof the existence of these facts, and that the circumstances were such as to justify the publication of the same, his answer must be deemed insufficient, and the demurrer was properly sustained. Article 6, § 5, of the state Constitution provides that in all trials for libel, both civil and criminal, the truth, when
In 13 Ency. P. & P. 82, the rule is thus stated: “In pleading justification it will not be sufficient to aver generally the tru:h of the alleged defamatory matter. If the charge is made -n general teríns, the particular facts relied upon as constituti ig the charge must be set forth specifically. This must be done by the pleader in order that the court may see whether the defendant was justified in speaking the words complained of, and in order that the plaintiff may know precisely what he has to meet and be prepared for it.” Dowie v. Priddle, 216 Ill. 553, 75 N. E. 243; 3 Am. & Eng. Ann. Cas. and editor’s not, 526; Frye v. Lennett, 5 Sandf. (N. Y.) 54; Warner v. Clark, and note, 21 L. R. A. 507 (45 La. Ann. 863, 13 South. 203); Mull v. McNight, 67 Ind. 535; Deever v. Clark, 47 Kan. 745; Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; Torry v. Field, 10 Vt. 353; Billings v. Waller, 28 How. Prac. 97; Snyder v. Andrews, 6 Barb. 43. In the latter case the Supreme Court of New York in its opinion -says: “The plea in justification must be framed with the same degree of certainty and precision as are required in an indictment for the crime imputed.”
In Billings v. Waller, supra, the court held that: “The
This brings us to a consideration of the second contention of appellant that by reason of the facts stated the alleged libelous communication was privileged and comes within the rule laid down by this court in the cases of Myers v. Longstaff, 14 S. D. 98, 84 N. W. 233; Boucher v. Clark Publishing Co., 14 S. D. 72, 84 N. W. 237; Ross v. Ward, 14 S. D. 240, 85 N. W. 182, 86 Am. St. Rep. 746. But in our opinion those cases are not applicable to the case at bar. In those cases this court held that the publication as to the conduct of certain persons wbo were candidates for office was justified on the ground that the public had a right to know the character of such candidates before being called upon to cast their votes at the election, but in the case at bar the respondent occupied no public position, and was not, so far as the record discloses, a candidate for any public office. He was a private citizen pursuing the business of a private citizen in the city of Webster, and his private business
The allegation in the answer that an investigation was had, and that the defendant, from reading the testimony of a witness in that investigation, and from his own knowledge of facts, considered himself justified in making the statements in regard to the plaintiff,, did not constitute the alleged libelous article a privileged communication. While the publisher of. a newspaper may publish a fair and impartial report of judicial proceedings had in a court, mere private investigations by officers or the public .authorities confers no more right upon the publisher of a newspaper than upon private individuals. In 25 Cyc. 406, the rule is thus stated: " \ full, fair, and impartial report of a judicial proceeding is qualifiedly privileged, unless the court has itself prohibited the publication or the subject-matter of the trial or proceeding bo unlit for publication. And no action will lie therefor except on pi oof of malice in making it. This privilege has been extended to writers of law hooks referring to reponed cases faithfully and fairly, although failure to use reasonable cure and diligence in order to be correct destroys the privilege.” ( >n page 407 it is stated: “A distinction has been' drawn between reports of what takes place in open court and that which is done out of court by one party alone, and it is held that the publication of the contents of a petition or of other pleadings or papers filed in civil proceedings before trials or before any action has taken place on such pleadings or papers by the court is not privileged/’ It seems to be generally held that publishers of newspapers have no greater privileges to comment upon the conduct of private citizens than has a private individual. In 18 Am. & Eng. Ency. of Raw, 1051, the law is stated as follows: “It is well settled that in the absence of statute newspapers as such have no peculiar privilege, but are liable for what they publish in the same manner as the rest of the community, and this whether the publication is in the form of an item of news, an advertisement, or corresponence. This rule, is not inconsistent with the ‘liberty of the pi ess,’ as this right is recognized in England and guaranteed
This brings us to the third and last contention of appellant which is that assuming that the answer is insufficient in stating facts justifying the charge made in the" alleged libelous article, and that it is not a privileged communication, yet that facts sufficient to constitute a defense to the action in mitigation "of damages are alleged. Wc are inclined to take the view that the appellant is right in this contention. Section 2292 of our Civil Code provides: “In an action for the breach of an obligation not arising from contract, where the defendant has been guilly of oppression, fraud or malice, actual or presumed, the jury, in addition to actual damages, may give damages for the sake of example, and by way of punishing- the defendant.” This section is a verbatim copy of section 1839 of the proposed Code for the state of New York, and the Code commissioners in their note to this section say: “In this the commissioners have taken the rule a-s now settled in this state by tire Court of Appeals in Hunt v. Bennett, 19 N. Y. 173.” Jonson v. Jenkins, 24 N. Y. 252; Fry v. Bennett, 1 Abb. Prac. 289; Id. 4 Duer (N. Y.) 247; Brown v. Chadsey, 39 Barb. 253, 259; Sharon v. Mosher, 17 Barb. 518.
It was held by the learned Court of Appeals of New York in Hunt v. Bennett, supra, that : “The law .presumes it (the publication) to be false, and where, as in this case, it is unambig
For the error of the court in sustaining the demurrer in its present form, including all the defenses set up- in the answer, th. order of the circuit court sustaining the demurrer is reversed.
Concurrence Opinion
While concurring fully with Justice CORSON that the order of the circuit court sustaining the demurrer to the answer must be reversed for the reasons stated in the foregoing opinion, I am unable to fully agree with him in what he says concerning the plea in justification. The answer as interposed was divided into several paragraphs, the second paragraph therof clearly being the paragraph wherein the pleader intended to and did set forth those matters which he desired to plead in justification, which said paragraph is quoted in full in the foregoing opinion, commencing with the words “Defendant specifically denies” where the same appears immediately following the words “of said paper” and closing with the words “should be sold at retail in Webster and vicinity.” Justice CORSON says : “The answer in this case to be good therefore as against a general demurrer must state facts and circumstances which, if proven, would warrant the legal conclusion that the plaintiff did enter into such a combination.” As- I understand the views of my associate, as stated in the words above quoted, it is that the defendant in his answer should have made a statement of the facts, or acts of the parties which would go to show that an