Ott v. Murphy, 160 Iowa 730 (Iowa 1913)

Deemer, J.

The defendant, Telegraph-Herald, is a corporation, publishing a daily newspaper of that name in the city of Dubuque. This newspaper circulates, not only in Iowa, but in the adjoining states of Illinois and Wisconsin. Defendants Murphy and Quigley are, respectively, the editor and publisher of said newspaper, and it is charged that Murphy by and with the consent, approval, and command of his codefendant, Quigley, published of and concerning the plaintiff in the Telegraph-Herald the following false, libelous, -and scandalous matter:

Mr. Ott is an extravagant manager and if he had been mayor, we have no doubt that there would have been a large increase in the tax levy.

the people of the community where he lives, and to provoke him to wrath, and by the publication of the false and defamatory words aforesaid, and of the article herein set forth, to insinuate, suggest and charge that he was a man of low, coarse, unclean moral standards, ideas, and methods, and was unworthy the confidence, respect, and association of his neighbors, business associates, and the public generally.

This publication was made on the 3d day of March, 1910, and it seems that on the 18th day of the same month plaintiff commenced his action of libel, based thereon. Thereupon, and on the same day, defendants published of and concerning tbe plaintiff, in said newspaper, the following: “The Telegraph-Herald considers that (Mr. Ott) has revealed a modesty which none suspected him to harbor in asking a mere $20,000' as balm for his wounded vanity. Over in Paris, they are producing a play called Chanticleer. The principal character is a rooster who considers that the sun rises in response to his crowing and that if he should fail to crow the sun would not rise. Doubtless if some dunghill rooster with a far reaching voice -should imply that the sun would rise even if Chanticleer should not crow, Chanticleer would consider that his reputation had been damaged $20,000 worth.” The publication of the last article is made the basis of a second count to the plaintiff’s petition, which was filed April 8, 1910, and it is said that the second publication was made “ maliciously and deliberately intending to give further and wider publicity to the malicious libel published and circulated by them, and to further ridicule the said plaintiff, and to expose him to the contempt, ridicule and hatred of the readers of said newspaper and the people of the community in which he lives, and tO' provoke him to wrath. ’ ’

It is also, charged that the original libel was. republished, on March 18th with the same intent as the former publication. Defendants admit the publications, but justify the first on the theory that it was privileged for the reason that plaintiff was then a candidate for office, that they believed all the.

charges to be true, and published the same in good faith, and for the purpose of advising the electorate of the real character and qualifications of plaintiff for the office which he was then seeking. They admit the republication of the same article on the 18th of March, and of the matter charged in the second count of the petition, and aver that they “were fully informed regarding all the facts and circumstances covered by said editorial, and comment thereon, and believed that the words published, the statements made, and the deductions therein drawn in said editorial and comment thereon were true, and published them without malice and in good faith, after plaintiff had given notorious circulation and publication thereof, by the institution of an action at law for damages, in the district court of Dubuque county, Iowa, against these defendants, wherein said editorial was made the basis of his recovery in said action as a matter of public record in said suit.” They also averred “that the publication of said article was likewise privileged in that the subject-matter thereof, the deductions therein drawn and the comments therein made were reasonable, proper and of general public interest and concern, and that the publication thereof was made in good faith and without malice towards plaintiff in furthering the interests of clean political campaigns, civic purity, and good government.”

In another division of their answer, they also averred “the truth of said articles so published and as charged; that the deductions drawn and the comments made in said articles were reasonable, right, proper, and fitting to be made; and that said articles were so published without málicious and with good motives, and for justifiable ends as stated in divisions one and two of defendants’ answer. And defendants expressly deny that the articles so published were either false, malicious or defamatory.” They further pleaded “that at and before the time of such publication the plaintiff, as defendants then knew, was and had declared himself to be, and it was generally reported that he was, a candidate for

the office of mayor of the city of Dubuque, seeking the support of the electors of said city and the general public for his nomination for said office on what was known as the Citizens’ Nonpartisan Ticket, at an election thereafter to be held on April 4, 1910, in said city; that twovyears prior thereto the plaintiff had been the nominee for the office of mayor of the city of Dubuque on the said Citizen’s Nonpartisan Ticket, and he took an active part in the conduct and management of his political campaign for said office at said election, and the defendants were fully informed and acquainted regarding the facts, circumstances, and conditions involved in and connected with the management of said prior campaign, and were acquainted with the former [political affiliations of the plaintiff, covering a great many years, and knew of his connection with, and management of, some local enterprises, and the defendants were fully informed and acquainted regarding all the facts and circumstances covered by said article, and honestly believed that the article thus published, the statements therein made, were true, reasonable, proper, and of general public interest and concern, touching his qualifications and fitness for the office sought and in furtherance of civic purity, sound morality, judicious economy, and good government, and so published them, solely for such purpose, in good faith in the discharge of their duty to the public and without malice toward the plaintiff; that, furthermore, at and before the time of such publication, plaintiff, as defendants then knew, had instituted and there were had judicial proceedings against them in the Dubuque district court based upon said article and wherein the same was set out; that, by reason of these things, such publications" of said articles so complained about were privileged.”

In another division of their answer they pleaded these same facts, and, in addition, rumors and reports of their truth, in mitigation of damages, and finally they pleaded that “there was a combination by and between the plaintiff Joseph J. Ott, Joseph H. Rhomberg, William H. Meuser,

Otto F. Lang, John Steiner, John Moloney, Charles J. Young, Star Brewing Company, and numerous others whose names defendants are now unable to state, whereby they, acting in concert, sought to further and promote the candidacy and election of the plaintiff, Joseph J. Ott, for mayor of the city of Dubuque on the Citizens’ Nonpartisan Ticket, in and during the campaign of 1908, by the use of money, beer, and other liquors, and thereby, and in furtherance of such combination, brought about the conditions stated in said articles; that such purpose and methods were unlawful; that the articles so published related to and touched plaintiff if at all solely respecting such purpose and methods, and that by reason thereof the plaintiff is barred from maintaining his action, and from recovering any damages whatever herein. ’ ’

It was upon these issues that the case was tried, resulting in a verdict and judgment for plaintiff in the sum of $2,500.

Defendants’ counsel have assigned fifty-four errors, and we are solemnly assured that each and every assignment is good. One claim, if prejudicial in character, would be sufficient to reverse the ease, and we may as well say at the outset that we shall not consider each and every error assigned, for counsel, in their briefs, have themselves brought the number down to thirty-six, and many of these are duplicated, and more have relation to the same fundamental legal principles.

I. Counsel do not differ as to many of the propositions involved. It is contended that truth is a defense, and that the testimony shows, without any substantial conflict, that the statements contained in the articles were true. It is also contended that, as plaintiff was a candidate for office, the publications were quaiifiedly privileged; that defendants believed the charges to be true, and published the same with good motives and for justifiable ends, having good reason to believe them to be true. Plaintiff says that he was not a candidate for office; that the statements were false and were not privileged; but that, if privileged, they were actuated

by malice, and were not published in good faith. Defendants further say that, although plaintiff may not have been a candidate for office, he was a public character, having theretofore been a candidate, and that some of his friends were insisting that he again become a candidate at the election, which was then imminent.

1. libel: priviledges. The legal proposition here involved is challenged by plaintiff’s counsel, who say that the plaintiff was not a public character in such sense that defendants were justified in pub-lining matters, which occurred, or were reputed to have occurred, at a prior election, especially in view of the fact that the plaintiff was not again seeking the suffrage of the people, and was no longer actively engaged in practical politics. This difference of opinion raises the principal fundamental legal proposition in the case. "We may as well, although a little out of regular order, dispose of this question now. All who are asking the patronage of the public, whether they be actors or writers, lay themselves open to comment, and so long as that comment is fair, published with good motives, and without malice it is privileged. Cherry v. Des Moines Leader, 114 Iowa, 298; Klos v. Zahorik, 113 Iowa, 161, And it is doubtless true that public characters may also be criticized, but even such comment cannot as a rule be made an excuse for an attack on private character. Clifton v. Lange, 108 Iowa, 472; Morse v. Printing Co., 124 Iowa, 707; Cooper v. Stone, 24 Wend. (N. Y.) 434.

2. Same: candidates for office. Of course, the fitness of candidates for public office may be discussed as also may the conduct of public officials; but we find no authority for holding that, because a person may have once been an unsuccessful candidate for public office, his conduct.m that campaign is a fit subject of comment for all time in the future, although he may have abandoned the thought of becoming a candidate or again seeking the favor of the people. If he is not again'a candidate for office, “the dead past

should bury its dead.” Commonwealth v. Wardwell, 136 Mass. 164; Harriman v. Nonpareil Co., 132 Iowa, 619; State v. Keenan, 111 Iowa, 286; 25 Cyc. pages 401, 402, 404, and 405.

3. Same. It is sometimes said that fair and honest criticism in matters of public concern is privileged, but there is a manifest difference between fair and honest criticism of public events and privileged communications. In the latter case the words may be defamatory, but the defamation is excused or justified by reason of the occasion, while in the former case the words are not defamatory of the plaintiff, and are not libelous — the stricture or criticism is not upon the person himself, but upon his work. In other words, it is impersonal. Bearce v. Bass, 88 Me. 521 (34 Atl. 411, 51 Am. St. Rep. 446); Burt v. Advertising Co., 154 Mass. 238 (28 N. E. 1, 13 L. R. A. 97). Criticism must be founded on truth, and false statements or attacks on private character are not permitted. Clifton v. Lange, 108 Iowa, 472; Fry v. Bennett, 5 Sandf. (N. Y.) 54; Haynes v. Clinton Ptg. Co., 169 Mass. 512 (48 N. E. 275).

*4. same : newspapers. Newspapers are not exempt from these rules. Morse v. Printing Co., 124 Iowa, 707; Republican Co. v. Conroy,* 5 Colo. App. 262 (38 Pac. 423). The trial court properly submitted the question of the truth of the statements, and as to whether or not the same were qualifiedly privileged, making the last depend upon whether or not plaintiff was a candidate for office when either publication was made, and we see no error in the instructions with reference thereto. There was ample testimony to justify the submission of these issues to a jury.

5. Same: second publication: malice. II. The publications were, as we view it, both libelous per se. Wallace v. Homestead Co., 117 Iowa, 348; Prewitt v. Wilson, 128 Iowa, 198; Sheibley v. Ashton, 130 Iowa, 195; Morse v. Printing Co., supra; Sunley v. Insurance Co., 132 Iowa, 123; Dorn v. Cooper, 139 Iowa, 749.

And, as the last was not a mere repetition of the first, it in itself constituted a distinct cause of action. It is true that the second publication may also be considered upon the question of defendants’ malice in making the first one. Murray v. Galbraith, 86 Ark. 50 (109 S. W. 1011); Halley v. Gregg, 74 Iowa, 564; Ladwig v. Heyer, 136 Iowa, 196.

6. same: privilege: instruction. The trial court instructed the jury that the second publication was not privileged; but that the first was conditionally privileged, provided the jury found that plaintiff was a candidate for the office of mayor at the time it was made. This, among other instructions, was given upon this proposition:

Upon the question of qualified privilege the court instructed :

lished if they are in good faith, and on probable cause believed to be facts. Where a person, honestly believing that a candidate for public office is guilty of conduct affecting his fitness for the position to which he aspires, communicates that belief through a newspaper to the electors, whose support the candidate seeks, acting in good faith in the discharge of his duty to the public, such publication is privileged. In this case if you find from the evidence and a fair preponderance thereof that the article published on March 3, 1910, was so privileged, then the burden of proof is upon the plaintiff to show malice. If a party publishing an article did not honestly believe the facts published to be true, any claim of privilege would not be a protection to him. A man who knowingly makes false charges cannot take advantage of a privilege; and, if he had no reasonable cause for believing the statements to be true and the statements were false, it would amount in legal contemplation to a wanton statement, or a statement made without knowing or caring whether it was true or malicious.

to the article published on March 3, 1910, has been established, and is a complete defense, and exonerates the defendants from any liability because of the publication of said article on said date.

These instructions were manifestly correct. Thompson v. Rake, 140 Iowa, 232; Hulbert v. Nonpareil Co., 111 Iowa, 490; Harriman v. Nonpareil Co., 132 Iowa, 619; Nichols v. Eaton, 110 Iowa, 509; Wallace v. Homestead Co., 117 Iowa, 348; Jensen v. Damm, 127 Iowa, 555; Cherry v. Des Moines Leader, 114 Iowa, *298; Vial v. Larson,* 132 Iowa, 208.

No such confusion as to express and implied malice exists as to justify the complaints made by appellants’ counsel. The defendants did not offer sufficient testimony in support of what is called their defense of conspiracy as found in the last division of their answer to justify the submission thereof to the jury. These considerations dispose of the vital and fundamental propositions in the case; but some rulings during the trial are complained of which demand further attention.

9. jurors • chailenge. III. A juror was challenged for cause because of having formed and expressed an opinion as to the merits of the case, The ruling is sustained by so many eases that we nee(j n0£ get out the record, or do more than

cite the following: Wilson v. Wapello County, 129 Iowa, 77; Croft v. Railroad Co., 134 Iowa, 411; Harris v. Moore, 134 Iowa, 704; In re Hannaher’s Will, 155 Iowa, 73.

10. Libel : evidence. IY. In order to show that plaintiff was not a candidate, plaintiff was permitted not only to testify to the fact that he was not, but also to show declarations made by him to various persons, before any of the publications in question, to the effect that he was not and would not be a candidate. These declarations were admissible as showing plaintiff’s state of mind at the time in question, and were in the - nature of verbal acts which are generally admissible in evidence. ’Wigmore on Evidence, section 1790; West v. Beck, 95 Iowa, 520.

Y. Complaint is made of the cross-examination of some

of defendants’ witnesses; but we see no reason for interfering with tbe discretion lodged in tbe trial court in such matters. Tbe nature of the 1908 campaign, as made by the contending parties, became a prominent feature of the case, and the cross-examination of defendants’ witnesses did not exceed due bounds. „

VI. Complaint is made of certain testimony offered by plaintiff to show how the publication affected some of the members of his family, and the following record was made:

In this there was no error, for the reason that it was the reflex effect upon the plaintiff, growing out of the reading of the publication by the members of his family, which was proved. But a single case seems to hold such testimony inadmissible, and that was put upon the ground of insufficiency

of the pleadings; the court expressly refusing to pass upon the question as to whether it would be admissible in any case. See Couch v. Mining Journal Co., 130 Mich. 294 (89 N. W. 936). The decision does not seem to be sound because mental suffering need not be alleged as special damages. Townshend on Slander and Libel, pages 271, 520. In the instant case damages for mental suffering and humiliation were asked, and we think the rulings admitting the testimony and limiting it to the purposes indicated were correct. The following cases support the ruling of the trial court: Chesley v. Thompson, 137 Mass. 136; Enquirer Co. v. Johnston, 72 Fed. 443 (18 C. C. A. 628); Enos v. Enos, 135 N. Y. 609 (32 N. E. 123); Morey v. Morning Journal Ass’n, 123 N. Y. 207 (25 N. E. 161, 9 L. R. A. 621, 20 Am. St. Rep. 730); Brooks v. Hanson, 91 N. Y. 83; Terwilliger v. Wands, 17 N. Y. 54 (72 Am. Dec. 420); Flam v. Lee, 116 Iowa, 289.

12 same - mitigation: evidence. VII. Defendants offered to show, in mitigation of damages, rumors and reports regarding plaintiff and his conduct in the previous political campaign, upon which they acted 2d they believed to be true. Under rule existing in this state, a defendant, who publishes a libel as of his own knowledge and not upon the authority of others, cannot ordinarily show in mitigation of damages rumors or reports of the truth of the charge. Marker v. Dunn, 68 Iowa, 720; Clifton v. Lange, 108 Iowa, 472; Blocker v. Schoff, 83 Iowa, 265; Wallace v. Homestead Co., 117 Iowa, 356. Of course, if such reports were so general and prevalent and had existed such a length of time before the publication as that they may have affected plaintiff’s general character, they may doubtless be shown, not for the purpose of negativing defendants’ malice, but as mitigating plaintiff’s damages. No instruction on this theory was asked, and the rulings of the trial court were in accord with the principles we have announced.

VIII. Lastly, it is claimed that there was no testimony justifying a verdict against defendant Quigley. The evidence

13. same: liability for libel.

shows that this defendant was proprietor and manager of the paper, that the editor generally showed ^jg editorials, and that he (Quigley) may have seen the editorials in question or one of them before it was published, and the answer admitted that he (Quigley) was manager and had charge and control of the conduct of the paper. Under these -facts, the defendants were jointly liable. Jensen v. Damm, 127 Iowa, 555; Folwell v. Miller, 145 Fed. 495 (75 C. C. A. 489, 10 L. R. A. [N. S.] 332, 7 Ann. Cas. 455) ; Smith v. Utley, 92 Wis. 133 (65 N. W. 744, 35 L. R. A. 620). There was no error in stating the issues to the jury. Morrison v. Railway Co., 84 Iowa, 663. We have carefully gone over this voluminous record, and find no prejudicial error.

The judgment must therefore be, and it is, Affirmed.