101 N.W. 907 (N.D. 1904), Lauder v. Jones

Citation101 N.W. 907, 13 N.D. 525
Opinion JudgeYOUNG, C. J.
AttorneyCharles E. Wolfe and Guy C. H. Corliss, for appellant. W. H. Redmon, Purcell & Bradley, J. A. Dwyer and F. M. Nye, of counsel, for respondent.
Judge PanelYOUNG, C. J. GLASPELL, J., of the Fifth Judicial District, sitting in place of COCHRANE, J.
Case DateFebruary 24, 1904
CourtSupreme Court of North Dakota

Page 907

101 N.W. 907 (N.D. 1904)

13 N.D. 525




Supreme Court of North Dakota

February 24, 1904

Appeal from District Court, Richland county; Cowan, J.

Action by William S. Lauder against Evan S. Jones. Judgment for plaintiff, and defendant appeals.

Reversed on rehearing.

Charles E. Wolfe and Guy C. H. Corliss, for appellant.

Privileged communications which cannot themselves form the basis of an action for slander are not admissible for the purpose of showing malice in other communications. Shinglemeyer v. Wright, 50 L. R. A. 129; Throckmorton v. Evening Post Pub. Co., 35 A.D. 396.

The affidavit filed in the Supreme Court by the defendant Jones in another action was inadmissible. Without attempting to prove its falsity or without any evidence that it was maliciously made, and against the presumption that, as a witness he was acting truthfully and in good faith, the affidavit was admitted as proof of malice on the part of the defendant Jones. Such proof is privileged and inadmissible, and the privilege is absolute. Hinickel v Vonlif, 69 Md. 179, 14 A. 500, 17 A. 1056; 9 Am. St. Rep. 413; Hoor v. Wood, 3 Metc. 193; Liles v. Garter 42 Oh. St. 631, Hutchinson v. Lewis, 75 Ind. 55; Jacobs v. Cater, 92 N.W. 397; Scougale v. Sweet, 82 N.W. 1061.

Where a publication qualifiedly privileged is admitted by the defendant in a libel suit, the burden of proof is on the plaintiff to show not only the falsity but the malice of the publication. Gattis v. Kilgo, 38 S.E. 931; Hume v. Kusche, 87 N.Y.S. 109; Edwards v. Chandler, 14 Mich. 471.

The office of the inducement is to set out the circumstances, and of the colloquium to show that the words were spoken with reference thereto. Townshend on Slander and Libel, sections 335, 336, 337; Sturtevant v. Root, 27 N.H. 69; Com. v. Child, 13 Pick. 198; 13 Enc. Pl. & Pr. 49-54 and 32-36.

The defendant must have made a defamatory charge to render himself liable, and it is not sufficient that persons hearing or reading the statement of facts, from which a good or bad inference might be drawn, see fit to draw a prejudicial one. Simons v. Burnham, 60 N.W. 476; Brettun v. Anthony, 103 Mass. 37; Goodrich v. Hooper, 97 Mass. 1; York v. Johnson, 116 Mass. 482; Young v. Cook, 144 Mass. 38, 10 N.E. 719; Boss v. Tobey, 2 Pick. 320; Jones v. Diver, 22 Ind. 184; McFadin v. David, 78 Ind. 445.

In every instance where it has been held that defendant slandered the plaintiff by indirection, the words, in the light of the circumstances, conveyed the meaning of a derogatory charge, and not mere statements of fact, consistent with plaintiff's upright conduct, but from which some minds might possibly draw a prejudicial inference. Gorham v. Ivers, 2 Wend. 534; Simons v. Burnham, 60 N.W. 476; MacDonald v. Mail Printing Co., 32 Ont. Rep. 163; Nevill v. Fine Art & General Ins. Co., L. P. App. Cases, 68.

When a man is a candidate for a public office, conferred by the election of the people, any elector may discuss his fitness for office, and truthfully communicate to other electors any facts within his knowledge concerning the candidate's character or conduct, and express his opinion thereon, so long as he states as facts only the truth and as opinion only honest belief; but the publication of falsehoods against the character of the candidate, as, for instance, charge imputing to him a criminal offense, whether the charges relate to the candidate's prior official conduct or not, does not come within the domain of a privileged communication. 18 Am. & Eng. Enc. Law, (2d Ed.) 1042; Jarman v. Rea, 70 P. 216; Post Pub. Co. v. Hallam, 59 F. 530.

It is always competent, in the interests of the defendant, for the court to decide, in a proper case, that the words are not defamatory, and refuse to submit the question to the jury. Capital & Counties Bank v. Henty & Sons, 8 App. Cas. 741; Heller v. Pulitzer, 153 Mo. 213, 54 S.W. 459.

It is not the intention of the speaker or writer or the understanding of any particular hearer or reader that is to determine the actionable quality of the words. 18 Am. & Eng. Enc. Law (2d Ed.) 977; Snell v. Snow, 13 Metc. 278; Gribble v. Pioneer Press Co. 37 Minn. 277, 34 N.W. 30; Callaham v. Ingran, 122 Mo. 355; Pittsburgh, etc., R. Co. v. McCurdy, 144 Pa. 544; Thompson v. Lewiston Daily Sun Pub. Co., 91 Me. 203; Reid v. Providence Journal Co., 20 R. I. 120.

W. H. Redmon, Purcell & Bradley, J. A. Dwyer and F. M. Nye, of counsel, for respondent.

The only protection that a witness has is, that an action of slander or libel cannot be maintained against him founded on his testimony. Davis v. Starrett, 97 Me. 568; 55 A. 516.

Anything defendant ever said or did with reference to the plaintiff may be urged as evidence of malice. It is difficult to say what possible evidence is inadmissible on this issue. Newell on Slander and Libel, section 41, p. 336; 18 Am. & Eng. Enc. Law (2d Ed.) 1019; Whittemore v. Weiss, 32 Mich. 348; Price v. Eastwood, 45 Ia. 640.

Separate publications made concerning plaintiff, which are not themselves actionable, are admissible in a suit for libel. If they are not actionable, it seems that they are still admissible whenever the question of malice in fact is to be left to the jury. McDermott v. Evening Journal, 43 N.J.L. 488; Ransom v. McCurley, 31 N.E. 119; Preston v. Prey, 27 P. 533; Ellis v. Whitehead, 54 N.W. 752; Fowles v. Bowen, 30 N.Y. 20.

Where the defendant shows circumstances that furnish occasion for a privileged communication, the plaintiff may rely upon the presumption of the falsity of the charge made against him, and if he shows actual malice and want of good faith in the defendant, he need not assume the burden of proving the falsity. 18 Am. & Eng. Enc. Law (2d Ed.) 1049; Atwater v. Morning News Co., 34 A. 865; Newell on Slander and Libel, 325; Billet v. Times Dem. Pub. Co., 50 L. R. A. 62.

YOUNG, C. J. GLASPELL, J., of the Fifth Judicial District, sitting in place of COCHRANE, J.



[13 N.D. 528] Even though writings do not charge crime and would not be libelous if spoken, they are libelous if tending to expose any persons to public hatred, contempt, ridicule, aversion or disgrace, or to bring them into obloquy, or which reflect upon their character, or lower them in public estimation. Rev. Codes, 2715; Townshend on Slander and Libel, 76-77; Newell on Libel and Slander, 32, 3-4-5; St. James Military Academy v. Gaiser, 28 L.R.A. 667; [13 N.D. 529] Weston v. Grand Rapids Pub. Co., 87 N.W. 258; Culmer v. Canby et al., 101 F. 195; White v. Nicholls, 3 How. 266, 11 L.Ed. 591; Davis v. Hamilton, 88 N.W. 744; State v. Shippman, 86 N.W. 431; Schenk v. Schenk, 20 N. J. Laws, 208; Dixon v. Allen, 11 P. 179; Bettner v. Holt, 11 P. 713; Lansing v. Carpenter et al., 9 Wis. 540; Stewart v. Minn. Tribune Co., 41 N.W. 457; Allen v. News Pub. Co. 50 N.W. 1093; Buckstaff v. Viall, 54 N.W. 111; Schomberg v. Walker, 64 P. 290; Byram v. Aikin, 67 N.W. 807; Bradley v. Cramer, 59 Wis. 309, 18 N.W. 268; Cary v. Allen, 39 Wis. 481; Bergmann v. Jones, 94 N.Y. 51; Shattuc v. McArthur, 25 F. 133.

Courts will construe a libelous publication in its ordinary and popular sense. Hotchkiss v. Olmstead, 37 Ind. 74; Com. v. Child, 30 Mass. 198; Newell on Libel and Slander, section 31, page 264; section 42, page 268; World Pub. Co. v. Mullen, 61 N.W. 108; Simons v. Burnham, 60 N.W. 476; Ewing v. Ainger, 55 N.W. 996; Pokrok Zapadu Pub. Co. v. Ziskovsky, 60 N.W. 358; Post Pub. Co. v. Hallam, 59 F. 530; Truman v. Taylor, 4 Iowa 424; Bradley v. Cramer, 59 Wis. 309, 18 N.W. 268; Bettner v. Holt, 11 P. 713.

Insinuations by expressing belief or opinions are as libelous as though the charge was made direct. Waters v. Jones, 29 Am. Dec. 261; Nye v. Otis, 8 Mass. 122; Simmons v. Holster, 13 Minn. 249; Bee Pub. Co. v. Shields, 94 N.W. 1029; Republican Pub. Co. v. Miner, 34 P. 485; Brewer v. Chase, 80 N.W. 575; Funk v. Beverly, 112 Ind. 190, 13 N.E. 573.

It is immaterial that the defendant did not mean to libel the plaintiff. Taylor v. Hearst, 40 P. 392; McAllister v. Detroit Press Co., 43 N.W. 431; Whiting v. Carpenter, 93 N.W. 926; Berry v. Massey, 104 Ind. 486, 3 N.E. 942; McKinley v. Robinson, 20 Johns. 351; Massuere v. Dickens, 35 N.W. 349; Curtis v. Mussey, 72 Mass. 261, 6 Gray 261; Wynne v. Parsons, 57 Conn. 73, 17 A. 362.

To entitle the defendant to prove the truth of the charge as a defense, the specific facts upon which it rests must be pleaded. The answer must be as broad as the charge, so that the plaintiff may know exactly what he has to meet. Fry v. Bennett, 5 Sandf. (N. Y.) 69; Newell on Libel and Slander, 651-656; Townshend on Slander and Libel, 352-362; 13 Enc. Pl. & Pr. 81 to 87; 32 Century Digest, 2167; VanNess v. Hamilton, 19 Johns. 349; Fidler v. Delevan, 20 Wend. 57; Billings v. Waller, 28 How. Pr. 97; Fenstermaker [13 N.D. 530] v. Tribune Pub. Co. 43 P. 112; 31 Am. Rep. 757; Amos v. Stockert, 34 S.E. 821; Sunman v. Brewin, 52 Ind. 140; Nott v. Stoddard, 38 Vt. 25; Thrall v. Smiley, 9 Cal. 529; Williams v. Fuller, 94 N.W. 118.

In an action for libel, evidence of the truth of the publication can be received only when the defendant in his answer has set up the truth of the publication as a defense. Newell on Libel and Slander, 790; Sheehan v. Collins, 71 Am. Dec. 271; Sweeney v. Baker, 13 W.Va. 158; 31 Am. Rep. 757; Burke v. Mascarich, 22 P. 673; 13 Enc. Pl. & Pr. 78, 75 and 79; Reiley v. Timme, 53 Wis. 63, 10 N.W. 5; Wilson v. Noonan, 35 Wis. 321; Langton v. Hagerty, 35 Wis. 150.

When no justification is pleaded, the falsity of the slander or libel is admitted, and its falsity need not be proved. Burke v. Mascarich, 22 P. 673; Jones v....

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