Cherry v. Des Moines Leader

• Decision Date: 28 May 1901
• Citation: 86 N.W. 323,114 Iowa 298
• Parties: CHERRY v. DES MOINES LEADER ET AL.
• Court: Iowa Supreme Court

114 Iowa 298

86 N.W. 323

CHERRY

v.DES MOINES LEADER ET AL.

Supreme Court of Iowa.

May 28, 1901.

Appeal from district court, Polk county; C. A. Bishop, Judge.

Action for libel. Trial to a jury, directed verdict for defendants, and plaintiff appeals. Affirmed.W. B. Crosby and Spurrier & Maxwell, for appellant.

James C. Hume, for appellees.

DEEMER, J.

The action is predicated on the publication of the following article: “Billy Hamilton, of the Odebolt Chronicle, gives the Cherry Sisters the following graphic write-up on their late appearance in his town: ‘Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. Their long skinny arms, equipped with talons at the extremities, swung mechanically, and anon waived frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and fox trot,--strange creatures with painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the only one who showed her stockings, has legs with calves as classic in their outlines as the curves of a broom handle.’ ” The defendants pleaded that plaintiff, with her sisters, were engaged in giving public performances, holding themselves out to the public as singers, dancers, reciters, and comedians; that their performances were coarse and farcical, wholly without merit, and ridiculous; that the Des Moines Leader is a newspaper published in the city of Des Moines, which the other defendants were conducting, and that the article appeared as a criticism of the performance given by plaintiff, and to expose the character of the entertainment; that it was written in a facetious and satirical style, and without malice or ill will towards plaintiff or her sisters. This is clearly a plea of privilege, and the direction to the jury to return a verdict for defendants was, no doubt, on the theory that the plea of privilege was established. That it was published of and concerning plaintiff in her rôle as a public performer scarcely admits of a doubt, and it is well settled that the editor of a newspaper has the right to freely criticise any and every kind of public performance, provided that in so doing he is not actuated by malice. In other words, the article was qualifiedly privileged. Gott v. Pulsifer, 122 Mass. 238, 23 Am. Rep. 322;Fry v. Bennett, 28 N. Y. 324;Shurtleff v. Stevens, 51 Vt. 501, 31 Am. Rep. 698;Dooling v. Publishing Co., 10 N. E. 809. The occasion was such that the presumption of malice arising from the publication is rebutted, and plaintiff, in order to recover, must prove actual malice. Nichols v. Eaton (Iowa) 81 N. W. 792. By the term “actual malice” is meant personal spite or ill will, or culpable recklessness or negligence. Such malice may be shown by extrinsic evidence, or it may be gathered from the publication itself. Nichols v. Eaton, supra. There is absolutely no evidence, outside the publication itself, tending in any manner to show malice; hence, if malice be found, it must be from the article published. Ordinarily publication of such an article as the one in question would of itself be an indicium of malice, but, as applied to the facts of this case, we do not think it should be so held. Plaintiff described the entertainment she and her sisters gave, in part, as follows: “These entertainments are concerts,--literary entertainments. I don't sing much. The others do. I have recitations and readings; recite and read in costume. In feminine costumes. Dresses as long as I have on, or shorter. I don't wear short dresses. Sometimes I have worn men's clothes. I never dance. I recite essays and events that have happened, I have written up of my own. I have none of them with me. One is, ‘The Modern Young Man;’ the other, ‘An Event that Happened in the City of Chicago.’ I sing an Irish song,--an Irish ballad; also a eulogy on ourselves. It is a kind of a ballad composed by ourselves. I help the others sing it. I have forgotten it. It is about an editor. In the chorus I walked a little around the stage,--kind of a fast walk. A cavalier is a Spaniard, I believe. I represent a Spaniard. That is given in the act that we call ‘The Gipsy's Warning.’ I wear my bicycle bloomer rig. They reach to my knees, and are divided like leggings,--black leggings with buttons on them. I wear a blue blouse,--a blue velvet blouse. Sometimes red and sometimes green. I have many suits; wear them in turn. The leggings are always black. In the chorus I walked a little around the stage,--kind of fast walk or a little run. Had on different kind of clothes,--mostly silk. We had a reproduction of the performance called ‘Trilby.’ The singing of Ben Bolt by my little sister. I would come in and hypnotize her in a farce way. I would tell the audience that I would hypnotize her while she would sing. I didn't appear at any show without stockings. My little sister was barefooted in one act,--in very long dresses to her ankles. She also appears in a long robe in a tableau clinging to the cross. ‘Cherries ripe and cherries red’ is a eulogy song. I was not asked to repeat only one verse. Q. What is the verse? A. ‘Cherries red and cherries ripe, the cherries they are out of sight, cherries ripe and cherries red, Cherry Sisters still ahead.’ ” The defendants' evidence regarding the character of the performance is in part as follows: “It was the most ridiculous performance I ever saw. There was no orchestra there. The pianist left after the thing was half over. She could not stand the racket and left. There was no other music, except vocal music from the Cherrys. They had a drum, and I think they had cymbals. As near as I can recollect, the curtain raised at the beginning, and the Cherrys appeared and gave a walk around and a song. I think it was ‘Ta, ra, ra, Boom de ay.’ They read essays and sung choruses and gave recitations, interspersed with the remarks that, if the boys didn't stop, the curtain would go down. One young man brought a pair of beer bottles which he used as a pair of glasses. They threatened to stop the performance unless he was put out, but he was not put out, and they didn't stop. When the curtain went up the audience shrieked and indulged in...