Ballinger v. Democrat Co., 39408.

• Decision Date: 05 February 1929
• Docket Number: No. 39408.,39408.
• Parties: BALLINGER v. DEMOCRAT CO.
• Court: Iowa Supreme Court

207 Iowa 576

223 N.W. 375

BALLINGER

v.DEMOCRAT CO.

No. 39408.

Supreme Court of Iowa.

Feb. 5, 1929.

Appeal from District Court, Lee County; John E. Craig, Judge.

Action for libel. A verdict was returned in favor of the plaintiff, and the defendant appeals. Reversed.Hollingsworth & Hollingsworth, of Keokuk, and Johnson & Martin, of Ft. Madison, for appellant.

B. F. Jones and B. A. Dolan, both of Keokuk, for appellee.

FAVILLE, J.

This is the second time this action has been before this court. Ballinger v. Democrat Co., 203 Iowa, 1095, 212 N. W. 557. The action was brought to recover damages for the publication of an article in a paper belonging to the appellant, wherein reference was made to a divorce proceeding, and in which it was stated, in effect, that the pleadings in said divorce proceeding charged the appellee with infidelity. A detailed recital of the facts is set forth in the former opinion. In the former appeal we held that the action constituted a libel per se. Upon remand and prior to retrial the appellee filed an amendment to her petition and therein withdrew from said petition “all the allegations of express malice made against the defendant.” With this situation in the pleadings the cause again proceeded to trial. The appellee offered evidence tending to show actual damages resulting to her from the publication of said article. There was no evidence offered by the appellee tending to show that the publication of said article was done with actual or express malice, or wantonly or recklessly. At proper time the appellant moved the court to withdraw from the consideration of the jury the question of exemplary damages because there was no allegation in the petition upon which said damages could be predicated and because there was no evidence proving or tending to prove the existence of express malice upon which a recovery for exemplary damages could be based. This motion was overruled. The same thought was again expressed by a requested instruction limiting the amount of recovery, if any, to actual damages, which was denied by the court.

The court instructed the jury, in part, as follows: “Exemplary damages are such damages as may be awarded in excess of the actual loss or injury in cases where there is malice, evil motive or oppression, and are sometimes called smart money or punitive damages.” And also instructed the jury as follows: “And if you find the actual damages as above set out, then you are authorized to give to the plaintiff, in addition to the actual damages so found, such exemplary damages as you think just and proper.”

And another instruction contains the following: “You are to determine, from all the facts and circumstances disclosed by the evidence in the case, what damages ought to be given her, and you may allow her some reasonable amount by way of exemplary damages, which the law allows in this class of cases, by way of punishment to the defendant,provided the jury, under the facts and circumstances proved, find it proper to allow exemplary damages.”

The record discloses a situation where the appellee brought action to recover damages for the publication of an article that was a libel per se. Any claim of express malice in the publication of the article was withdrawn from the pleadings. No proof of any express or actual malice was offered in behalf of the appellee. In this state of the record, over the motion, objections, and requested instructions of the appellant, the court instructed the jury that exemplary damages might be awarded to the appellee. It is unnecessary that we enter into an extended discussion of the question of “implied malice” and actual or express malice, as used in the law of libel. As has been well said, “the word ‘malice’ is the bugbear of the law of libel.” In Ullrich v. New York Press Co., 23 Misc. Rep. 168, 171, 50 N. Y. S. 788, 791, it is said: “The jumble in some modern text-books on slander and libel concerning malice, actual malice, malice in law, malice in fact, implied malice and express malice (all derived from judicial utterances, it is true), is a striking testimony of the limitations of the human mind.”

[1] We have recognized the rule in this state that where a publication is libelous per se, malice is implied, or, as the expression is sometimes used, “malice in law” is an essential ingredient of a libel per se. It may be true that such implied malice is a fiction of the law, but it is too firmly planted in the nomenclature of judicial opinions to be now uprooted.

There is an interesting and exhaustive discussion of the question in Davis v. Hearst, 160 Cal. 143, 116 P. 530.

[2] It is well established that at least nominal damages are presumed to result from the publication of a libel per se. Whether actual damages, in addition to nominal damages, have resulted from the publication of a libel per se depends upon the proof in the case, and the award of such damages is to be determined by the jury under the facts and...