Berger v. Freeman Tribune Pub. Co.

• Decision Date: 19 November 1906
• Citation: 109 N.W. 784,132 Iowa 290
• Parties: MRS. E. M. BERGER, Appellant, v. THE FREEMAN TRIBUNE PUBLISHING CO., Appellee
• Court: Iowa Supreme Court

109 N.W. 784

132 Iowa 290

MRS. E. M. BERGER, Appellant, v. THE FREEMAN TRIBUNE PUBLISHING CO., Appellee

Supreme Court of Iowa, Des Moines

November 19, 1906

Appeal from Hamilton District Court.-- HON. J. H. RICHARD, Judge.

ACTION for libel. Defense, justification, privilege, and a pleading of facts in mitigation. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.-- Reversed.

Reversed.

D. C Chase, for appellant.

Boeye & Henderson, for appellee.

OPINION

DEEMER, J.

The alleged libel (Exhibit A) reads as follows:

Her Husband Failed to Die.

Gypsy Fortune Teller Alleged to Have Said E. M. Berger Would Die and Wife Would Wed Rich Man -- Hence Divorce is Postponed.

Mrs. E M. Berger, who yesterday had an information sworn out against her husband, charging him with having threatened her life, withdrew it when the case came on for trial last evening before Justice Knowles. It was withdrawn for the reason that Berger agreed to leave the city and have nothing more to do with his wife. At the last term of the District Court Mrs. Berger filed an application for divorce from her husband, but it is said that through the forecast of a gypsy fortune teller she withdrew the petition. Certain it is that for some reason the petition was withdrawn. It is said the gypsy predicted that Berger would die and therefore Mrs. Berger figured that she would soon be rid of her erring spouse without the expense of getting a divorce.

Was to Marry a Rich Man.

It is alleged that the prediction given Mrs. Berger by the gypsy was that old and time worn tale about the "rich husband" which never fails to tickle the ears of young and giddy girls but which in the case of more mature persons generally causes a mere smile. It is reported that the gypsy told Mrs. Berger that her present husband would soon die and that she would shortly thereafter be wooed by a wealthy man and that she would wed him in time. The petition for divorce had been filed but Mrs. Berger thinking that if the prediction of the gypsy were to come true the getting of the divorce was needless, went to her attorney and had it withdrawn.

Berger Failed to Die.

Up to the present time, however, Berger has failed to die, and in fact a few days ago became so lively as to cause his wife much worry and distress of mind by threatening to "put her out of the way." He alleged that his wife spent too much time talking to other men, although it is not alleged that he ever charged that these men were wealthy, which in case the gypsy's prediction were to come true would necessarily have been the fact. That as it may, the couple could not get along well together and things went from bad to worse. Finally the matter came to a crisis yesterday when Mrs. Berger had her husband arrested with the expectation of having him put under bonds to keep the peace. Before the case came on for trial, however, Berger told his wife that if she would withdraw her information he would agree to leave the city and not again molest her. She agreed and the information was in consequence withdrawn. Berger had been employed at the Chas. Weise blacksmith shop while in the city. He left last night and where he went is not known. It is expected that Mrs. Berger will soon file in the district court another petition for divorce. It is believed, however, that her faith in gypsy fortune tellers is somewhat shaken.

As a justification or in mitigation the defendant was permitted to prove that the same charge was made in another newspaper published the day preceding the issue of defendant's paper containing the matter complained of. The rule seems to be universal that, where a libel does not on its face purport to be derived from another, but is stated as of the writer's own knowledge, it is wholly inadmissible to show that it was copied from another newspaper or communicated by a correspondent. Marker v. Dunn, 68 Iowa 720, 28 N.W. 38, and cases cited in 18 Am. & Eng. Ency. of Law (2d Ed.) 1073.

II. Evidence was offered by plaintiff to show a subsequent repetition of the alleged libel by the defendant. In ruling upon an objection to this testimony the trial court said: "Now, in sustaining the objection to that I understand the rule to be that, where plaintiff must prove malice, what was said subsequent to the alleged libel can be introduced, but not where an article is libelous per se. It is implied in law, and, if that is the only purpose of introducing the article at this point, the objection is good, and that is the reason for the ruling at this time." This was manifestly erroneous. While malice may, and should, be inferred from the publication of an article which is libelous per se, this does not prevent the introduction of testimony for the purpose of establishing express malice, thus enhancing the damages to be allowed. Bailey v. Bailey, 94 Iowa 598, 63 N.W. 341; Prime v. Eastwood, 45 Iowa 640; Hinkle v. Davenport, 38 Iowa 355, and cases cited.

III. The author of the article was called and was permitted to testify over plaintiff's objections that he had no intention of defaming Mrs. Berger. This was also erroneous. Where an article is libelous per se, a presumption of malice arises and it is not proper to receive testimony from defendant to the effect that his motives were pure. Barr v. Hack, 46 Iowa 308; Curtis v. Mussey, 72 Mass. 261, 6 Gray 261; McAllister v. Detroit Free Press, 76 Mich. 338 (43 N.W. 431, 15 Am. St. Rep. 318 and note).

IV. The trial court took from the jury the head lines to the article which were printed in large type. This was error. Hayes v. Press Co., 127 Pa. 642 (18 A. 331, 5 L. R. A. 643, 14 Am. St. Rep. 874), and note to McAllister v. Detroit Free Press, supra.

V. Defendant's plea of...