Fey v. King, 33621

CourtUnited States State Supreme Court of Iowa
Writing for the CourtEVANS, J.
Citation190 N.W. 519,194 Iowa 835
PartiesWILLIAM B. FEY, Appellant, v. HOWARD C. KING, Appellee
Docket Number33621
Decision Date21 November 1922

190 N.W. 519

194 Iowa 835

WILLIAM B. FEY, Appellant,

HOWARD C. KING, Appellee

No. 33621

Supreme Court of Iowa, Des Moines

November 21, 1922

Appeal from Lyon District Court.--C. C. BRADLEY, Judge.

ACTION for damages for libel. Plaintiff proved the publication of the writing complained of, and rested. Upon motion, the court directed a verdict for the defendant, and the plaintiff appeals.


E. C. Roach, W. C. Garbeson, and E. E. Wagner, for appellant.

Simon Fisher and S.D. Riniker, for appellee.

EVANS, J. STEVENS, C. J., ARTHUR, FAVILLE, and DE GRAFF, JJ., concur. WEAVER, J., PRESTON, J., (dissenting).


[194 Iowa 836] EVANS, J.


The defendant is a newspaper publisher, and was charged in the petition with the publication of a libelous writing concerning the plaintiff. Three published writings were put into the record, and may as well be set forth here. Each writing was published upon the date indicated. They were the following:

"Dec. 16, 1915.

"Takes Spite Out on Lyon County's Fair.

"W. B. Fey, of Rock Rapids, Sought to have State Aid Withheld.

"W. B. (Billy Sunday) Fey, of Rock Rapids, whose morals were so grievously shocked during the county fair when he saw some of the best known people in the county buying paddles in an effort to secure a novelty doll that he had straightway determined to invoke the aid of the law in an underhanded, roundabout way, and incidentally square up a few of his personal grudges, has been let down by the state authorities in a no uncertain manner. He appeared last week before the Des Moines state officials and protested against the state allowing Lyon County's fair the $ 750 to which it is honestly and legally entitled, and they decided there was no foundation to his allegations, and voted to allow this sum. Mr. Fey announced to the newspaper men present that he would try to secure an injunction, but there is no doubt that he is regarded as a crank, and will receive scant consideration, should he apply for one. Rock Rapids people are incensed at his actions. They regard him as an interloper, and question his motives. They claim that he isn't even a taxpayer, and that his only desire is to satisfy personal selfishness and grudges. * * * Regardless of his personal dislikes, it would seem that his efforts to cripple a county's fair deserve condemnation. No loyal citizen of the county would be guilty of trying to cripple a public institution merely because some features or some of its management were objectionable to him."

[194 Iowa 837] "DECEMBER 23, 1915.

"Correction Due Fey in the Fair Protest.

"Rock Rapids Man Didn't Go About This in Underhand Manner.

"A correction is due W. B. Fey, of Rock Rapids, whose manner of bringing about the protest [190 N.W. 520] in the matter of allowing the Lyon County Fair the sum of $ 750 was open and aboveboard, so far as we have learned. Mr. Fey went about it openly, and it was known that he was going to protest the matter. Hence, the correction which is justified by the facts and in fairness should be made, and the writer of the article last week had no malicious intent in the matter. Mr. Fey also says he acted without any spite whatsoever, and was actuated solely by a desire to enforce the law. His protest against the alleged law violation at the time, and his subsequent protest to the board of agriculture, bear out his denial of any underhand methods in the fight to have the fair's claim disallowed. The fair management last year shut down the doll lottery when Mr. Fey protested, and called up the Sheldon fair management, and the latter stated they had an opinion from the attorney-general's office that the sale of lead pencils and awarding of dolls was not gambling and therefore the management decided to let the doll men continue their business. The state auditor now says, or he did last week-end, that he would not issue a warrant except on the advice of the attorney-general. Some say that, if the fair is debarred from receiving the $ 750 due, it will act as a stay against any future state aid. To cause the fair to lose this sum looks unnecessary, when the best thing would have been to have had the men arrested, and thus threshed the matter out in court. The fair management believed it was in the right, and with an opinion from the attorney-general's office to back it up, acted in good faith. The fight against the allowance of the $ 750 has a tendency to injure the fair, and Rock Rapids business men as a rule are not in sympathy, and do not indorse the move."

"Jan. 6, 1916.

"Attorney-General Rules Against Fair.

"Offers an Opinion that Lyon Isn't entitled to State Aid.

"The attorney-general of Iowa has offered an opinion to [194 Iowa 838] the auditor of state that Lyon County isn't entitled to state aid for its county fair, and the auditor will not issue a warrant for the $ 750 at the present time. While it is possible the fair will lose this sum to which it is really entitled, yet it will not be hurt to any great extent, as the association, which numbers over 400 stockholders, is in good shape financially, and is able to withstand the loss of this sum and still come back with the best county fair in the state. It is rather unlikely, though, that the attorney-general's 'opinion' will end the matter."

The first of the foregoing articles furnishes the basis of this action. The second was a purported retraction, made upon demand of the plaintiff. The third was offered in evidence for the plaintiff on the trial, and objection thereto was sustained. Error is assigned on such ruling. The contention for the plaintiff is that the publication charged in the petition was libelous per se, and that he was, therefore, entitled to a verdict for damages in some amount. This contention is based upon the assumed legal proposition that any publication concerning a person which tends to provoke him to wrath or expose him to public hatred or ridicule or to deprive him of public confidence and social intercourse is libelous per se. If such legal proposition be sound, then plaintiff is entitled to a reversal. But the proposition is essential to plaintiff's success; and if it cannot be sustained, the plaintiff cannot prevail.

The action is predicated upon Section 5086 of the Code, which is as follows:

"A libel is a malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, 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; * * *"

This is a definition of criminal libel, for which the offender may be prosecuted and punished by the state. It does not purport to supersede civil liability at common law for libel other than criminal, where special damages are shown to have resulted. It is doubtless true that a criminal libel, if proven and not justified, must be deemed libelous per se. It is not true that Section 5086 "makes any printing a libel if it tends to provoke [194 Iowa 839] to wrath or to expose to public hatred or ridicule." It is to be conceded that this is contradictory to some expressions to be found in the discussion of some of our cases, and it will be our purpose here to correct such expression.

The crime of libel consists of two elements: (1) Malicious defamation of a person; (2) publication of such defamation "by any printing, writing, sign, picture, representation or effigy, 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 Section 5086.

Both of these elements must concur, in order to constitute statutory libel. Defamation is not criminally libelous, unless published in the manner indicated. Publication is not criminally libelous, unless the matter published be defamatory. Some of our cases seem to assume that the subject-matter of a publication may be rendered defamatory by the publication itself, where such publication tends to provoke the injured person to wrath or to subject him to ridicule. But the publication of nondefamatory matter will not render such matter defamatory, however provocative to wrath or ridicule it may seem to be. The first requisite of statutory libel is that the published matter be defamatory, in a legal sense. If it is not defamatory in such sense before publication, it does not become so by publication. If it be defamatory, then the method of publication which will render it libelous is sweeping and comprehensive. It need not be by printed words. It may be by [190 N.W. 521] cartoon, caricature, effigy, or sign, provided that the method adopted does tend to provoke to wrath and to subject to ridicule or to public hatred and contempt.

"Defamation," like "fraud," has no concise definition. Broadly speaking, it is an attack upon the reputation of another. "Reputation" is also a broad and indefinite term; but in the law of libel, reference is had thereby in general to the integrity and moral character of the injured party. If one were to assail the good reputation of another as a skillful golfer, it would not be defamation, and could not be libelous under the statute; and this is so even though the attack were contemptuous, [194 Iowa 840] and were published in the Golf Column, and were provocative of great wrath. Publications may, and often do, provoke a person to wrath which do not impugn his integrity or his moral character. Neither the publication nor the wrath provoked thereby is the criterion which determines the character of the published matter as defamatory or nondefamatory. The rule, as gathered from many authorities, has been stated as follows:

"Defamatory words, to be libelous per se, must be of such a nature that the court can presume as matter of law that they will tend to disgrace and degrade the party or hold him up to...

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    ...the jury that at least two of these publications were libelous per se. This being true, malice and damages were presumed. Fey v. King, 194 Iowa 835, 190 N.W. 519. Upon the application of the foregoing rules to the testimony referred to, was any or all of it admissible? Surely, testimony of ......
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    ...at least two of these publications were libelous per se. This being true, malice and damages were presumed. Fey v. King, 194 Iowa, 835, 190 N. W. 519. [12] Applying the foregoing rules to the testimony referred to, was any or all of it admissible? Surely testimony of matters occurring long ......
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