Sheibley v. Ashton
| Decision Date | 12 March 1906 |
| Citation | 106 N.W. 618,130 Iowa 195 |
| Parties | SHEIBLEY v. ASHTON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; F. R. Gaynor, Judge.
Action to recover damages for a libel. At the time in question both parties to the action resided in Ponca, Dixon county, Neb. The defendant was the publisher of a newspaper of general circulation at said place, and in October, 1902, he published in such newspaper the following matter:
“Affidavit.
“Published by Request of A. C. Drager.
“State of Nebraska, Dixon County--ss.:
I, Mathilda Drager, wife of August C. Drager, of Ponca, Dixon county, Nebraska, being first duly sworn, depose and say that a certain affidavit by me made on or about the 1st day of May, 1902, alleging that one J. J. McCarthy had on the evening of November 3d, 1901, behaved himself improperly and in a manner unbecoming a gentleman, was procured from me upon the sole representations of one A. W. Sheibley at her urgent solicitation and request, and that the same was by me executed without any knowledge of its contents and being at the time entirely ignorant of its import; that, being now informed of its contents, purposes, and effects, and being aware of the absolute falsity thereof, I hereby revoke the same, and deny each and every allegation therein contained. I further swear that this affidavit is my voluntary act and is made upon my own motion.
“Mathilda Drager.
Subscribed in my presence and sworn to before me this 8th day of September, 1902.
[Seal.] W. W. Cooper, Notary Public.”
By way of innuendo, plaintiff alleges that she was a notary public in and for Dixon county; that by such publication it was intended to accuse her, and she was thereby accused, of having procured to be made and sworn to before her as such notary public an affidavit the statements whereof were known by her to be false and untrue; that by such publication it was caused to be believed of her that she had been guilty of subornation of perjury; that thereby it was caused to be believed of her that she had been guilty of slander and of traducing the character of the person, J. J. McCarthy, named therein. All of which matters plaintiff says were false in fact, and that said publication was malicious and defamatory; and she says she has been injured thereby in her good name and reputation, and damaged in the general sum for which she asks judgment. The answer of the defendant admits the publication as charged; denies malice; pleads the truth of the statements as made in the affidavit; and specifically denies that by the publication he intended to charge plaintiff with subornation of perjury, or with slandering or traducing any person, particularly J. J. McCarthy. All other allegations of the petition are met by a general denial. Trial was had to a jury resulting in a verdict and judgment for defendant. Plaintiff appeals. Reversed.
Geo. W. Argo, R. E. Evans, and W. E. Gantt, for appellant.
C. A. Irwin, J. V. Pearson, and W. D. McCarthy, for appellee.
The cause of action, it will be observed, arose wholly in the state of Nebraska, and we premise by saying that, in the absence of any showing to the contrary, we shall assume that the law of that state upon the subject of libels is identical with the law of this state. A criminal libel is defined by statute as “the malicious defamation of a person, made public by any printing * * * tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.” Code, § 5086. This definition has been held applicable to civil actions to recover damages as for a libel. Stewart v. Pierce, 93 Iowa, 136, 61 N. W. 388. And every publication which comes within the statutory definition of libel is declared to be actionable per se; that is, upon proof of the publication, the law will presume the falsity of the matter charged, that the publication was with malice, and that some damage followed. And the burden is upon the defendant to overcome such presumption. Call v. Larabee, 60 Iowa, 212, 14 N. W. 237;Halley v. Gregg, 74 Iowa, 563, 38 N. W. 416. If the publication is not such in character as to be actionable per se, the burden of proof remains with the plaintiff in all respects, and a recovery can be had only upon allegation and proof of special damage. Achorn v. Piper, 66 Iowa, 694, 24 N. W. 513. Where the situation is not controlled by matters of inducement or colloquium pleaded, the question whether a publication relied upon as libelous comes within the statutory definition, and hence is to be taken as actionable per se, is always a question for the court. 18 Am. & Eng. Ency. p. 990. Our cases fully recognize the doctrine as thus stated. In addition to those already cited, see Hollenbeck v. Hall, 103 Iowa, 214, 72 N. W. 518, 39 L. R. A. 734, 64 Am. St. Rep. 175;Mosnat v. Snyder, 105 Iowa, 500, 75 N. W. 356;Wallace v. Homestead Co., 117 Iowa, 348, 90 N. W. 835. And in the case last cited it is said that, if the publication is not libelous per se upon its face, it cannot be made so by innuendo. That such is the general rule cannot be doubted. 18 Am. & Eng. Ency. p. 982. The character of the publication as to being libelous or otherwise must be determined by giving to the subject-matter thereof, as a whole, that meaning which naturally belongs to the language used. If the reasonable import of such language is to work defamation of the reputation of another by imputing to him a condition, or acts or conduct such as that in common experience entail public hatred, contempt, or ridicule, or which in the natural and ordinary course of things operate to deprive him of the benefits of public confidence and social intercourse, the publication must be regarded as actionable per se. Otherwise, and there being no claim of special damage, it is the province and duty of the court to so declare, and to deny the right to maintain an action thereon. Stewart v. Pierce, supra; Quinn v. Insurance Co., 116 Iowa, 522, 90 N. W. 349.
The present action was commenced by plaintiff, and tried on her behalf in the court below, upon the evident theory that upon its face the publication complained of amounted to a libel actionable per se. There was no matter of inducement and colloquium pleaded, nor was there allegation of special damage, or attempt to make proof of such. It would seem that the trial court was of the opinion that as matter of law the publication alleged was not actionable per se, and this conclusion follows from the fact that the question of the character of the publication as to being libelous or otherwise, was submitted to the jury under instructions and to be determined by them in reaching a verdict. We think this was error in any event. And therefrom it becomes manifest that in our determination of the appeal the principal question necessary to be considered has relation to the character of the publication. If libelous per se, the case should not have gone to the jury in the form in which submitted; if not libelous per se, the case should have been dismissed because in neither allegation nor proof was there pretense of special damages. Was the instant publication libelous per se? Counsel for appellant, conforming to the innuendo pleaded, contend for an affirmative answer to this question upon these grounds: (1) The publcation in effect charges plaintiff with having knowingly procured to be made and sworn to before her, a false affidavit; such affidavit amounting in itself to a libel. (2) Such publication charges plaintiff with misconduct in her office as notary public. If either of such grounds be well taken, it may be regarded as...
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