Fleagle v. Goddard

• Decision Date: 13 April 1920
• Docket Number: 33367
• Citation: 177 N.W. 51,188 Iowa 1033
• Parties: HARVEY FLEAGLE, Appellant, v. J. M. GODDARD, Executor, Appellee
• Court: Iowa Supreme Court

177 N.W. 51

188 Iowa 1033

HARVEY FLEAGLE, Appellant, v. J. M. GODDARD, Executor, Appellee

No. 33367

Supreme Court of Iowa, Des Moines

April 13, 1920

Appeal from Cedar District Court.--JOHN T. MOFFIT, Judge.

ACTION for damages on account of certain alleged slanderous and libelous statements of the defendant concerning the plaintiff. There was a directed verdict for defendant, and plaintiff appeals.

Affirmed.

Sharon Harrison & McSwiggin, for appellant.

J. C France and C. O. Boling, for appellee.

STEVENS J. WEAVER, C. J., LADD and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

Plaintiff alleged in his petition that he enlisted in the United States Army in 1898, and served in the Spanish-American War; that, while thus engaged, he incurred disabilities, as the result of a sunstroke, for which he was allowed and paid a pension of $ 24 per month; that, as the result of certain oral and written defamatory statements, uttered and published of and concerning the plaintiff by the defendant, his pension was reduced to $ 12 per month, and he was caused to suffer great mental pain, humiliation, disgrace, etc. He asks judgment in the sum of $ 25,000.

The writing complained of is an affidavit, prepared by a special examiner of the United States pension office, and signed and verified by defendant, and is set out in full in the abstract. Defendant, among other defenses, pleaded, and now urges in argument, that the publication was absolutely privileged, and that an action for libel cannot be predicated thereon.

No transcript of the evidence was made and filed in the office of the clerk of the district court, and only the deposition of the United States pension commissioner and the testimony of J. J. Horrigan, special agent of the department, are before us. We cannot, therefore, consider or review the alleged oral defamatory statements of the defendant. It appears without conflict in the record, however, that plaintiff's pension was, on or about the 11th day of January, 1916, following an investigation by the pension office, reduced from $ 24 to $ 12 per month. Referring to the writing in question, the court, upon a former appeal of this case, Fleagle v. Downing, 183 Iowa 1300, 168 N.W. 157, said:

"The matters complained of in the second count of the petition, if believed to be true, would lead the mind to the conclusion that the plaintiff, knowing he had suffered no disability while in the service of his country in the Spanish-American War, had fraudulently procured a pension from the government for disabilities not sustained,--clearly charging the plaintiff with defrauding the government, and with obtaining property by false pretenses, a criminal offense which lays the foundation of a civil action, if unfounded, untrue, and maliciously made."

Unless, therefore, appellee's claim of privilege is sustained, plaintiff was entitled to have this count of his petition submitted to the jury. A privileged communication is defined in Newell on Slander and Libel (3d Ed.), Section 492, as follows:

"A privileged communication is a communication which, under ordinary circumstances, would be defamatory, made to another in pursuance of a duty, political, judicial, social, or personal; so that an action for libel or slander will not lie, though the statement be false, unless, in the two last cases, actual malice be proved in addition."

And in the following section, the principle upon which the doctrine rests is stated as follows:

"The great, underlying principle upon which the doctrine of privileged communications rests is public policy. This is more especially the case with absolute privilege, where the interests and the necessities of society require that the time and occasion of the publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to prosecution for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights, and to suffer loss for the benefit of the common welfare. Happily for the citizen, this class of privilege is restricted to narrow and well-defined limits. Qualified privilege exists in a much larger number of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character, of imperfect obligation. The occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon him the burden of proving that there was malice; in short, that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made."

It appears from the deposition of the commissioner of pensions, which was introduced by plaintiff, that, on or about the 25th day of February, 1914, C. F. Simmermaker, mayor of Tipton, wrote the pension office, suggesting an examination of plaintiff for the purpose of ascertaining whether he was entitled to the pension he was receiving, and that, on September 19th, he again wrote the department, to the same effect. On May 7, 1915, J. J. Horrigan, a special examiner of the pension office, acting under written instructions from the department, visited Tipton, for the purpose of making an investigation as to the health, mental condition, and habits of plaintiff. In addition to directing him to obtain medical testimony as to plaintiff's condition, Horrigan was instructed to procure the statement of lay persons, as follows:

"Lay persons who have been in a position to know of his condition during the last year should be questioned as to whether he has performed any manual labor during this time. If so, the nature and the approximate extent of the work done should be ascertained. Has he manifested symptoms of mental impairment? Is he absent-minded, or is his memory impaired? Is he excitable, disputatious, and easily aroused to anger? Is he morbid or melancholic?...