Egan v. Dotson

• Decision Date: 31 December 1915
• Docket Number: 3624. [*]
• Parties: EGAN v. DOTSON et al.
• Court: South Dakota Supreme Court

155 N.W. 783

36 S.D. 459

EGAN v. DOTSON et al.

No. 3624. ^[*]

Supreme Court of South Dakota

December 31, 1915

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by George W. Egan against C. L. Dotson and another. From a judgment for plaintiff and order denying new trial defendants appeal. Reversed and remanded.

U. S G. Cherry and Herbert Abbott, both of Sioux Falls, for appellants.

Geo. W Egan, of Sioux Falls, in pro. per.

GATES J.

Action for defamation by libel. The plaintiff was a candidate for Governor of this state at the primary election held in June, 1912. On May 25, 1912, there was published in the Sioux Falls Daily Press the following article under the heading, "South Dakota Exchanges," the same being a reprint of articles theretofore published in the Egan Express, Bradley Globe, Huronite, Faulkton Advocate, and Meadow Herald, respectively:

"That Iowa Record. Egan Express: But that there may be no undue advantage taken of Mr. Egan, we make the following offer:

We charge that Geo. W. Egan, while residing in Harrison county, Iowa, did rape not less than two defenseless women; that on account of his disreputable acts, Hon. O. D. Wheeler, judge of the district court, upon the complaint of a man named Bert Weed, appointed a commission consisting of three reputable lawyers, viz., Tom C. Smith, Ambrose Burke, and C. W. Kelley, to investigate and report to the court their findings; that said committee did investigate, and presented to said district court a formal accusation, accusing George W. Egan of conduct unbecoming an attorney, of attempt to avert justice, of contempt of court, crimes and misdemeanors. And after reciting the matter as ascertained by the investigation, the said commission concluded the report to the judge as follows: 'Wherefore, we pray the license of said George W. Egan to practice law in the said district court be revoked and held for naught, and that the cost of the proceedings be taxed to the said George W. Egan;' that George W. Egan was not disbarred in Harrison county, Iowa, because his father-in-law, an eminent and honorable member of the Iowa bar, promised that Egan would leave the state of Iowa on condition that the disbarment proceedings should go no further. This investigating committee filed its report at 2:30 p. m. January 28, 1907, and Egan was admitted to practice in South Dakota in November the same year. Mr. Voter, draw your own conclusions.

We might go on and prefer other serious charges, but these are enough to show any fair-minded man what kind of a human being George W. Egan is, but it is unnecessary.

Now as to our offer:

If George W. Egan will write out a statement denying these charges, and go before a notary public and swear to it, accompanied by a notarial seal, we will publish the denial and give it the same publicity we give to the charges.

Bradley Globe: Even if Geo. W. Egan was telling the truth, which he seems unable to do, what claim has he to become Governor of South Dakota after a four years' residence, and bringing with him the reputation of a scoundrel and a libertine. A man who was as good as chased out of his town and home state and who was disbarred from the practice of law in this state for practically stealing $10,000 from a crazy woman, who afterward died in a lunatic asylum -bah! A man must have a grudge against himself and every one else that would for a moment consider this man's candidacy for the executive head of the state of South Dakota.

Huronite: It is the opinion of this newspaper that the state association of liquor dealers and brewers is making a mistake in promoting the gubernatorial aspirations of George W. Egan. It could no more depend on him than could others, in the event of his success. He is willing to promise all things that he would be utterly unable to deliver. Should the liquor dealers succeed in foisting him upon the people of this state, it would be held in a measure responsible and the man or organization that assumes responsibility for Egan would be taking a big chance.

Faulkton Advocate: From everywhere around the state comes the cheering news that the voters are lining up behind Frank Byrne, regardless of faction. Egan gets some applause but Mr. Byrne, is getting the votes. And the people are onto George, George of the wavy hair and flashing eye, George of the stage tricks and tainted reputation. Mr. Byrne has long since punctured his flimsy arguments and George is now running on his personality. George may be a good show, but for Governor the people want a man of ability, sanity, and integrity, and not a vaudeville performer. Naturally they favor Mr. Byrne. And it is a fact that the keenest observers of political conditions are conceding the nomination to Mr. Byrne.

Meadow Herald: If we wanted a man to sell gold bricks, lightning rods or school charts, we should apply to George W. Egan, prince of hot-air merchants, but just now we are interested in securing the nomination for Governor of an honest, clear-headed, constructive statesman."

On May 31, 1912, there was published in the Sioux Falls Daily Press the following article:

"Compare the Two Men.

"Frank Byrne has been a resident of the state for 33 years. He is to-day lieutenant governor of the state. He has been a member of the state Legislature for three terms. The kind of public citizen he is is shown by his legislative record. He is directly responsible for much of the best legislation which to-day is on the statute books of the state.

Is there anything he has done as a private citizen or as a member of the state senate, or as lieutenant governor you don't like, or that indicates that he has been or is on the wrong side of public affairs? No one has heard his private character attacked.

No one charges him as being a dishonest man.

He has never been charged with being hooked up with corporation deals.

He has been a farmer with South Dakota farmers.

No one is ashamed to be seen in his company.

He has never been arrested for any alleged crime.

He is not to-day before the country bemeaning citizens who may not be his supporters. He hasn't that kind of a tongue, nor disposition.

He has never had enemies so mean as to cause him to go into courts to defend his character. He seems to be above and immune from such enemies.

He does not believe that South Dakota is afflicted with a class of citizens who with no good reason and without cause will try to defame their fellow men.

George W. Egan has been a resident of the state for five years.

He came from Logan, Iowa.

The record is that two separate cases were brought against him charging him with having committed rape.

Disbarment proceedings were started against him shortly before he left that place.

He was disbarred by the Supreme Court of South Dakota.

He went before the court and asked to be reinstated. It was refused.

He went again before the court and asked to be reinstated, all this after he had gone about the state denouncing the members of that court and writing matter in his paper denouncing them, and on this last occasion apologized for what he had said and printed and begged to be forgiven, and there acknowledged that he had been treated justly by the court and their charges against him were true.

He says he came to South Dakota with more than thirty thousand dollars. The record shows that he paid $20.46 in taxes in Iowa the year he moved to South Dakota.

He says that he spent his fortune defending his character in Sioux Falls.

Never in the history of South Dakota, as state or territory, has there ever been a man who has gone about the state vilifying citizens as George W. Egan has done and is doing.

He has abused people until he has more enemies among men, women and children of South Dakota than any other man, a hundred times over."

At the time of said publications the defendant C. L. Dotson was the proprietor and publisher, and the defendant C. B. Dotson, his son, was the editor, of said newspaper. In his complaint the plaintiff alleged that the charges contained in said articles were false and were published maliciously, and demanded damages in the sum of $50,000. The defendants answering separately, denied the falsity of the charges, denied malice, alleged that the articles were caused to be published by the editor without the knowledge or procurement of the publisher, alleged facts tending to show that the same were privileged, alleged matters tending to show justification, alleged good faith and honest belief on the part of the editor in the truthfulness of the charges, and alleged matters tending to show that the editor had reasonable cause for believing in their truthfulness, which answers cover 46 pages of the printed record. Upon the trial the jury rendered a verdict in favor of plaintiff and against the defendants for $1,000. A motion for a new trial was denied, and the cause comes before us upon a printed record of 795 pages, with 478 assignments of error, one of which contains 62 subdivisions. Manifestly time and space forbid the consideration of all of said alleged errors. We shall therefore consider only a few of the more important questions raised.

It appears to us that the case can be best considered by first setting out such of the instructions which the court gave the jury as are material to the questions considered. They are as follows, the paragraph numbers being ours:

(4) "Understand that libel must be a false publication. So far as an article, though it may reflect on one's character, is true, it is not libel in a civil action, and the truth of the article, if established, is a complete defense; or, so far as the evidence shows that the article was true, so far it would not constitute libel or entitle the plaintiff to any damages."

(5) "The defendants further in

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