Haas v. Evening Democrat Co.

• Decision Date: 07 February 1961
• Docket Number: No. 50213,50213
• Citation: 107 N.W.2d 444,252 Iowa 517
• Parties: Edmund A. HAAS, Appellee. v. EVENING DEMOCRAT COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 444

107 N.W.2d 444

252 Iowa 517

Edmund A. HAAS, Appellee. v. EVENING DEMOCRAT COMPANY, Appellant.

No. 50213.

Supreme Court of Iowa.

Feb. 7, 1961.

J. Francis Phelan and Johnson & Phelan, Fort Madison, and Harold F. Martin, Keokuk, for appellant.

R. P. McManus and N. E. McManus, Keokuk, for appellee.

THOMPSON, Justice.

On February 13, 1957, plaintiff filed his petition in twenty counts, claiming damages in each against the defendant for alleged libels. The matter was submitted to a jury, which returned verdicts against the defendant in the sum of $3,000 each on Counts V, X, XIII, XVI, and XVII; and in the amounts of $25,000 on Count XI and $35,000 on Count XVIII. Defendant's motion for judgment notwithstanding verdict was denied as to all counts. Its motion for new trial was denied as to Court XI on condition that plaintiff file a remittitur of $19,000 of the total amount, and was likewise denied as to Count XVIII on condition that a remittitur of $29,000 be filed. The remittitur as to Count XI was duly filed, and the motion for new trial thereupon denied; but the court considered the alleged remittitur filed as to Count XVIII to be conditional and not in accord with its ruling, and granted a new trial. From judgment entered on the verdicts the defendant has appealed. The plaintiff has cross-appealed from the ruling granting a new trial on Court XVIII. The remaining thirteen counts were eliminated either by direction of the court or by jury verdict, and are not involved here.

The litigation before us grows out of a public controversy concerning the construction of a boat dock and harbor on the Mississippi river front in the City of Fort Madison. The matter was debated over a period of several years, beginning in 1951. Involved in the dispute were the Dock Commission of the City, the city council and its members, the plaintiff and the defendant. The defendant, publisher of a daily newspaper in Fort Madison, took a position favoring the new dock; the plaintiff strongly and vociferously opposed it. He did this by written and verbal protests to the council, to the U. S. Army Engineers, by the circulation of petitions, by paid advertisements in the defendant newspaper, and by circulation of handbills. Much of this literature was signed 'The Committee for Better Government, Ed Haas, Secretary;' but there is no doubt from the record that the plaintiff was the active organizer and chief proponent of the opposition to the contemplated dock. The matter raged as a public controversy in Fort Madison for several years. During this time the defendant published certain news stories and editorials which the plaintiff now claims were libelous. These form the basis for the charges contained in Counts V, X, XIII, XVI, XVII, and XVIII. Count XI is based upon the publication by the defendant of a letter from a member, or former member, of the city council who had been taken severely to task by the plaintiff and who retaliated somewhat in kind.

The errors assigned are that the trial court erred in refusing to sustain defendant's motion for judgment notwithstanding verdict on each of the seven counts on which the jury found for the plaintiff; and in refusing to grant a new trial on Counts V, X, XI, XIII, XVI and XVII. The major contention is that the evidence adduced in the case does not support the verdicts rendered. The plaintiff has moved to dismiss the appeal on the ground that the errors relied upon are not sufficiently specific, but are omnibus in character. While they might have been more definitely stated, we think they sufficiently apprise the court of the basis of defendant's complaints. The motion to dismiss is denied.

I. No specific complaint is made of the instructions or rulings on evidence, but we think the error into which the court fell, and which must have pervaded its thinking throughout the case, is shown by its Instruction No. 10-A. There the jury was told that the publications complained of by the plaintiff were 'each libelous per se, and the law presumes malice'. Instruction No. 12 said that newspapers are liable for libelous publications 'without proof of express malice or actual ill-will against the person libeled.' From this viewpoint, the court would have been correct in denying defendant's motions for directed verdict and for judgment notwithstanding; but it was not correct. In the first instance, a publication must be actually defamatory. In Fey v. King, 194 Iowa 835, 840, 190 N.W. 519, 521, we quoted with approval from 25 Cyc. 253, 254, 255: "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 public hatred, contempt, or ridicule or cause him to be shunned or avoided. * * * In many cases, moreover, words charging plaintiff with the commission of acts permissible in law, although they may lack public approval, have been held not to expose plaintiff to hatred, contempt, ridicule, or disgrace in the sense or to the degree required by the law of libel, as, for instance, charging one with setting up the statute of limitations, or the illegality of a contract, as a defense. To accuse one of being deficient in some quality which the law does not require him * * * to possess is not libelous per se.". In Shaw Cleaners & Dyers v. Des Moines Dress Club, 215 Iowa 1130, 1137, 245 N.W. 231, 234, 86 A.L.R. 839, we cited Fey v. King, supra, as controlling on the point, and said: '* * * in order to constitute defamation, the alleged libelous matter must assail 'the integrity and moral character of the injured party''.

The court properly instructed the jury, in effect, that the plaintiff, by interjecting himself into a matter of public concern and by criticizing the actions of public officials and requesting certain action from them had invited or at least excused comment and criticism from those who held other views. This was correct. Restatement, Torts, Vol. III, Sections 606, 610; Newell, Libel & Slander, 4th Ed., 543, Sec. 496(4). We have ourselves held, in Klos v. Zahorik, that a clergyman is such a 'public man' as that his discharge of the public functions of his calling is a proper subject of comment. 113 Iowa 161, 165, 84 N.W. 1046, 1047, 53 L.R.A. 235; and in Cherry v. Des Moines Leader, 114 Iowa 298, 304, 86 N.W. 323, 325, 54 L.R.A. 855, that one who takes part in a public performance or exhibition thereby becomes the subject of comment and criticism. The plaintiff was so evidently engaged here in a public controversy that no question should arise but that comment and criticism were permitted; in fact invited. He communicated with the city council, both in writing and verbally; he circulated handbills; and he inserted many paid advertisements in the columns of the defendant paper. All of these were attempts to influence the council and the public adversely to the construction of the proposed boat dock.

So the publications of which he now complains were without doubt qualifiedly privileged. Under these circumstances, the burden was upon the plaintiff to plead and prove actual malice. Robinson v. Home Fire & Marine Insurance Company, 244 Iowa 1084, 1093, 59 N.W.2d 776, 782. Yet we find the court instructing the jury, in its No. 12, that the defendant would be liable without such proof. We are aware error is not predicated upon the instructions, but we think comment upon them is warranted because they show the confusion in the court's thinking and go far to demonstrate the error in its rulings on defendant's motions.

The plaintiff relies to some extent upon the definition of libel found is Section 737.1 of the present code, I.C.A. This was discussed in Fey v. King, supra, and it was held that the section refers to criminal libels, and that to constitute a libel actionable in a civil suit there must be a 'malicious defamation' of the person alleging injury.

II. With the foregoing principles in mind, we turn to a consideration of the specific charges in the seven counts upon which verdicts were returned in favor of the plaintiff. Plaintiff's petition makes the same allegations in each count, except for paragraph three of each, in which the specific libel claimed upon is set out. The petition alleges that plaintiff had been for 33 years engaged in the automobile business in Fort Madison and enjoyed an established credit reputation for honesty and integrity and a profitable business; that defendant published the statements for the malicious purpose of injuring plaintiff in his reputation and business as aforesaid, and said statements were false and 'intended to provoke plaintiff to wrath and expose him to public hatred, contempt and ridicule'. Further allegations are that the publications were for the malicious and wicked purpose of causing the public to believe plaintiff was against progress for the city, was morally and socially corrupt, antisocial, a loathsome and disgusting person and unworthy of the confidence and respect of the public, and were further maliciously intended to injure plaintiff in his business as an automobile dealer. It is alleged 'plaintiff has been injured in his reputation, credit and automobile business. He has suffered great embarrassment and humiliation, his mental and physical health has been seriously impaired.' By way of answer, defendant denied malice; denied the statements were intended to injure plaintiff in any way, but were fair comments upon a public controversy in which plaintiff was engaged; and denied the comments were libelous per se or per quod.

The alleged libelous matter set forth in Count V was this: 'Edmund A. Haas has been the leader in the drive to keep the Caldwell firm out of Fort Madison. Haas is the owner of a private harbor at the foot of 20th Street. He persuaded the City Council to make an objection to the dock's project but Mayor Leroy Bean vetoed the resolution.'

Little comment is required to demonstrate...