Hulbert v. New Nonpareil Co.

• Decision Date: 19 May 1900
• Citation: 82 N.W. 928,111 Iowa 490
• Parties: LIZZIE HULBERT v. NEW NONPAREIL COMPANY, Appellant
• Court: Iowa Supreme Court

82 N.W. 928

111 Iowa 490

LIZZIE HULBERT v. NEW NONPAREIL COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 19, 1900

Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.

PLAINTIFF brings this action to recover damages for an alleged wrongful, wicked, malicious, unlawful, reckless, and careless publication in the Nonpareil (a daily newspaper) of the following concerning her, which, she charges, is false and defamatory: "Charged with Seduction. Frank D. Shaffer the liveryman on North Main street, was arrested yesterday afternoon on an information filed in Justice Vien's court by Lizzie Hulbert, a dressmaker residing at No. 728 First Avenue, charging him with seduction. According to Miss Hulbert's complaint, Shaffer accomplished her ruin, under promise of marriage, about the 1st of April last. She also accuses him of being the father of her child, which is dead. Shaffer gave bonds in the sum of three hundred dollars, and by consent of both parties the hearing of the case was set for Wednesday, November 18th, at 2 p. m." The defendant answered, admitting the publication, and alleging certain facts in justification and in mitigation of damages. The jury found specially that the plaintiff is not entitled to exemplary damages, and returned a verdict in her favor for two hundred and fifty dollars. Judgment was rendered on the verdict and the defendant appeals.

Affirmed.

Mayne & Hazelton and Frank H. Gaynor for appellant.

Harl & McCabe and N. A. Crawford for appellee.

OPINION

GIVEN, J.

I.

There is but little, if any, controversy as to the facts, which are, in substance, as follows: On and prior to the eleventh day of November, 1896, the plaintiff, an unmarried woman resided at No. 628 First avenue in the city of Council Bluffs and was engaged in business as a dressmaker. The New Nonpareil Company is a corporation and was then engaged in the publication of a daily newspaper, of general circulation called "The Daily Nonpareil," and on said eleventh day of November published the article set out in the petition, under the following circumstances: On the tenth day of November, 1896, one Lizzie Herbert filed an information before Ovide Vien, a justice of the peace, charging Frank D. Shaffer with having seduced her. On the eleventh day of November, Frank Froom, a reporter for said paper, was informed that the charge had been made and warrant issued against Shaffer, and as soon as the arrest was made he would be furnished with further particulars. That evening Justice Vien left a slip of paper on Mr. Froom's desk, "stating that Frank Shaffer, the North Main street liveryman, had been arrested on information charging him with seduction, by Lizzie Hulbert." Mr. Froom examined the city directory, and found the name and address of the plaintiff, and, understanding that Emmet Tingley was an attorney in the case, asked him by telephone if the complainant was Lizzie Hulbert, the dressmaker, and if it was the one living at the address given in the directory (naming it). Mr. Tingley answered that he thought it was. Thereupon Froom wrote the article, and it was published. On the fourteenth or fifteenth of November the plaintiff called at the Nonpareil office, and, satisfying those in charge that she was not the complainant against Shaffer, the following was published in the next issue of the Nonpareil: "The Shaffer Case: The case against Frank Shaffer, brought by Lizzie Herbert, in which she charges him with seduction, will be heard by Justice Vien next Wednesday. By mistake in the name as originally given in the information, it was stated that the prosecuting witness was Miss Lizzie Hulbert, the dressmaker. An injustice was therefore done the latter unintentionally, the information having been misleading."

II. Defendant's first complaint is that the court erred in sustaining plaintiff's objection to the entry in the justice's docket in the case against Shaffer offered by the defendant. Plaintiff, in a denial of defendant's abstract, denies that said entry was offered in evidence, and, as this denial stands unquestioned we must accept it as correct. It it was otherwise, there was no error in the ruling, as it appears that neither the writer nor publishers of the article ever saw the docket entry before the publication was made.

III. The court instructed as follows: "There is no dispute in the case but that the article in question was published by the defendant, and that, in so far as it referred to the plaintiff, it was untrue. The defendant claims that the article...