Prewitt v. Wilson

• Decision Date: 03 May 1905
• Citation: 103 N.W. 365,128 Iowa 198
• Parties: PREWITT v. WILSON ET AL.
• Court: Iowa Supreme Court

128 Iowa 198

103 N.W. 365

PREWITT

v.WILSON ET AL.

Supreme Court of Iowa.

May 3, 1905.

Appeal from District Court, Benton County; G. W. Burnham, Judge.

Action at law to recover damages for an alleged libel. From a judgment for the defendants entered upon a directed verdict, the plaintiff appeals. Reversed.Tom. H. Milner, for appellant.

J. C. Hume and C. Nichols, for appellees.

WEAVER, J.

The plaintiff alleges that on or about November 2, 1901, the defendants did falsely, willfully, and maliciously write and publish of and concerning said plaintiff certain false, malicious, and defamatory statements, in words and figures as follows, to wit:

“A Denial with Trimmings.

Since certain statements concerning T. E. Gillaspie, Democratic candidate for sheriff, and emanating from the Republican County Central committee, wherein said Gillaspie is charged with saying certain things derogatory to T. H. Gharrity, Democratic candidate for sheriff in 1899, and wherein he is alleged to have stated that he would not vote for ‘that Irish Catholic ____________.’

The following affidavits of reputable citizens of Iowa county are an index to the respective characters of the respective signers of the statement:

‘State of Iowa, Iowa County--ss.: I, T. E. Gillaspie, of Victor, Iowa, first being duly sworn, depose and say, that I am the candidate for sheriff upon the democratic ticket, and that I have been fully informed of the contents of a certain circular purporting to be signed by J. B. Carey, F. A. Rossman and W. R. Prewitt, and now being circulated by the republicans, and that I never at any time used the language or any of the language therein stated, or any such language in substance, or any language of that kind or character, and that I supported T. H. Gharrity for sheriff when he ran against H. J. Richardson; and that I know of the facts stated and set forth in the above affidavit, and that the same are true as I verily believe. T. E. Gillaspie. Subscribed and sworn to before me, this 2nd day of November, 1901, by the said T. E. Gillaspie. Thos. Stapleton, Notary Public, Iowa County, Iowa.’

‘State of Iowa, Iowa County--ss.: I, D. H. McGuire, H. C. Dean, John Morrison, C. Paeper, J. J. Borucki and S. W. Nicholson, depose and say, and each for himself deposes and says; that I am well acquainted with J. B. Carey, F. A. Rossman and W. R. Prewitt, of Victor, Iowa, and that I would not believe them, or either of them, under oath: that I know of the facts stated in the above and foregoing affidavit, and that the same are true as I verily believe. S. W. Nicholson, J. J. Borucki, C. Paeper, D. H. McGuire, Jno. Morrison, Jno. E. Wilson, H. C. Dean. Subscribed and sworn to before me by H. C. Dean, John E. Wilson, John Morrison, D. H. McGuire, C. Paeper, J. J. Borucki and S. W. Nicholson, this 2nd day of November, 1901. Thos. Stapleton, Notary Public, Iowa County, Iowa. [Seal.]’

‘State of Iowa, Iowa County--ss.: I, John A. Fitzgerald, Eugene Conley and D. H. McGuire, of Victor, Iowa, being duly sworn depose and say, and each for himself deposes and says: that we, and each of us have known T. E. Gillaspie, of Victor, Iowa, the democratic candidate for sheriff, of Iowa County, Iowa, and that each of us have known him for years, and that we have been fully informed of the facts set forth in the circular signed, J. B. Carey, F. A. Rossman and W. R. Prewitt, and now being circulated by the republicans, and that from our acquaintance with the said Gillaspie we know that he never made any such statement or any statement of that kind or character. Jno. A. Fitzgerald, Eugene Conley, D. H. McGuire. Subscribed and sworn to before me by John A. Fitzgerald, Eugene Conley and D. H. McGuire, this 2nd day of November, A. D. 1901. Thos. Stapleton, Notary Public, Iowa County, Iowa.’ ”

For damages alleged to have been sustained by reason of said defamatory publication, the plaintiff asks judgment against the defendants. To this petition the defendant Dean answered separately, as follows: First, denial; second, alleging that if he published the alleged affidavit it was true, and published without malice and in good faith; and third, alleging that plaintiff was chairman of the Republican county central committee, and a candidate for reappointment to that position, and as such he had invited criticism by publishing an affidavit attacking one Gillaspie, Democratic candidate for sheriff, and that, to counteract such attack and to inform the electors of the character and qualifications of the plaintiff and of Gillaspie for the respective offices to which they aspired, he signed and delivered to one Stapleton, to be shown to the electors interested, an affidavit to the effect that he was well acquainted with Gillaspie, and that from such acquaintance the affiant knew that said Gillaspie had never made the statement with which he had been charged by the Republicans, all of which matters were written and published as aforesaid in good faith and without malice. The other defendants answered jointly, setting forth the same defenses pleaded by Dean, and, in addition, alleged that they were all residents of Iowa county, and not of Benton county, where the suit was brought. On the trial the plaintiff offered evidence tending to show the publication by the defendants of the alleged libel as stated in the petition. At the close of the testimony in the plaintiff's behalf, the defendants moved for a directed verdict in their favor, on grounds which may be condensed as follows: (1) Insufficiency of evidence to justify a verdict for the plaintiff; (2) no proof of malice in the alleged libel; (3) the writing is not libelous per se; (4) the writing was privileged; (5) the writing was conditionally privileged; and (6) the alleged libelous statement was an assertion of belief only, and not of fact, and there is no presumption that the expression of belief was not true. This motion was sustained by the court, in language indicating the opinion that an imputation of crime is necessary to institute libel, or, if such be not the rule, that the language of which the plaintiff complains is to be considered privileged. After entry of judgment against the plaintiff for costs, a motion was filed by all of the defendants, except Dean, for further judgment against said plaintiff for expenses incurred in attending court and for counsel fees paid, aggregating $637.46, in defending said action in Benton county, the same not being the county of their residence. From the order of the court overruling the motion, the defendants, except Dean, have also appealed, but, the plaintiff's appeal being first perfected, he will be designated herein as the appellant.

Since the trial in the court below, this court has had occasion to consider with considerable thoroughness some of the features of the law of libel. See Morse v. Times-Republican Printing Co. (Iowa) 100 N. W. 867. In most respects this precedent and the authorities therein cited govern the present appeal, and we shall attempt no rediscussion of the questions therein considered. Adhering to the law as there expressed, we are quite clear that the trial court in the present case erred in supposing that a charge of crime is essential to make a written or printed defamation actionable per se. Nor do we think that the plaintiff's case was vulnerable to any of the points made against it in the defendant's motion for a verdict.

The original written draft of the alleged libel was not produced on the trial, but the plaintiff sufficiently accounted for his failure in this respect, and was entitled to identify and put in evidence the printed copy which had been given to the public. There was also sufficient testimony for the jury to consider tending to charge each of the defendants with a share of the responsibility for the publication. If, therefore, the statements so published were of a character having a natural tendency to provoke the plaintiff to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence or social intercourse, it was libelous per se, even though it charged him with no offense against the law. The plaintiff was not required to prove its falsity or malice in its publication. Both are presumed. Nor was he required to make proof of damages, for a libel is presumably injurious. Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409, 49 Am. St. Rep. 646;White v. Nicholls, 3 How. 266, 11 L. Ed. 591. It follows, therefore, that plaintiff was entitled to have his case submitted to the jury,...