Jones v. Register & Leader Co.

• Decision Date: 29 June 1916
• Docket Number: No. 30398.,30398.
• Citation: 177 Iowa 144,158 N.W. 571
• Court: Iowa Supreme Court
• Parties: JONES v. REGISTER & LEADER CO.

177 Iowa 144

158 N.W. 571

JONES

v.REGISTER & LEADER CO.

No. 30398.

Supreme Court of Iowa.

June 29, 1916.

Appeal from District Court, Polk County; W. S. Ayres, Judge.

Action for libel. Affirmed.

Gaynor, Deemer, and Ladd, JJ., dissenting.E. J. Kelly, of Des Moines, and H. G. Giddings, of Mitchell, S. D., for appellant.

Clark, Byers & Hutchinson, of Des Moines, for appellee.

SALINGER, J.

I. A demurrer which was sustained admits that defendant falsely published concerning plaintiff, who is mayor of Perry, the matter following: That he was “adjudged second best” in a controversy between him and the mayor of Ames; that plaintiff must pay $15 to the city of Ames because “an impromptu court on the lawn of Mayor Sheldon's home” convicted him of exceeding the Ames speed limit with his automobile; that plaintiff claimed he had acted within the law; that from the fine assessed, notwithstanding, he appealed to the district court; that there a default was entered against him; that later the default was set aside, but on condition that plaintiff pay the costs and fine of $15; that plaintiff was “involved in a peculiar suit,” which involved the halting of a house mover by act of court, in that some work being performed for plaintiff was stopped by a temporary injunction on the charge that an ordinance, passed during the administration of plaintiff as mayor, was being violated; that as said ordinance was passed “with the indorsement” of plaintiff, “the legal action which will follow will be watched with interest;” that plaintiff had engaged a house mover to move a building to the Jones addition to Perry; that the job required passing over several paved streets with a traction engine, which said ordinance put “under the ban”; that the moving was stopped by one of the citizens who had recently paid for paving in front of his residence, and that “the situation at this time presents the mayor as defendant in an action in which he should be plaintiff.” By sustaining the demurrer the court held that the publication is “not itself libelous,” that nothing is pleaded which “would make the publication a libel upon the plaintiff,” and that nothing is pleaded “which would justify a recovery.”

[1] II. We are constrained to differ from this holding. True, no statute crime is charged in the publication. But that is not essential to constitute a libel. Call v. Larrabee, 60 Iowa, 214, 215, 14 N. W. 237;State v. Keenan, 111 Iowa, 291, 82 N. W. 792;Morse v. Printing Co., 124 Iowa, 715, 716, 100 N. W. 867;State v. Cooper, 138 Iowa, 520, 116 N. W. 691. The statute (section 5086 of the Code of 1897) makes any printing a libel if it tends to provoke the one of whom it is published to wrath, or tends to expose him to public hatred or ridicule, or tends to deprive him of the benefits of public confidence or social intercourse. The cases cited establish that any publication which has a tendency to accomplish either or all of the things which the statute includes in its definition of libel is libelous per se, and that damage is presumed, wherefore no special damages need be pleaded. In Call v. Larrabee, 60 Iowa, 215, 14 N. W. 237, we say that because libel is a public offense, “all publications which the law regards as libelous are actionable per se;” in effect, that the commission of a public offense of itself makes a right of action for the one who suffers therefrom. And the definition found in this criminal statute is applicable in civil actions. Morse v. Printing Co., 124 Iowa, 712, 713, 100 N. W. 867.

[2] The publication complained of, is in substance, a false charge that an employé of plaintiff violated an ordinance which was passed with his approval as mayor, and that he who should be behind a prosecution for the offense was defendant in an injunction against the continuance of the offense; further, that plaintiff had unsuccessfully resisted a prosecution for violating the speed limit of a town of which he was not mayor--and all of it is so worded as to show a striving after humorous effect. It may be conceded that it has no tendency to expose plaintiff to public hatred or contempt, nor to deprive him of the benefits of public confidence or social intercourse. But it does have a natural tendency to provoke one who knows it to be false to wrath, and a tendency to make him ridiculous. If so, it is a libel, actionable per se. Morse v. Printing Co., 124 Iowa, 713, 715, 716, 100 N. W. 867. It follows something was recoverable, and that the demurrer should not have been sustained.

[3] III. But the point is made that the ruling is harmless, within the unquestionable rule, that we will not reverse for a denial of nominal damages or determine an appeal in which there is really nothing involved beyond seeking costs. Moller v. Gottsch, 107 Iowa, 238, 77 N. W. 859. True, the cases cited in the brief of appellant do not deal with libel cases. But does not the very case law which makes every libel actionable per se make this rule of appellate review applicable to every suit for libel. As every libel is actionable per se, and as we must note judicially that every libel is not equally injurious, it must be held that while the law permits a recovery in every case of libel, it sets no limits at either end of the recovery. Notwithstanding that the plaintiff is entitled to something, it is apparent there may be cases in which the damages allowed either are or should be nominal. As said, the very fact that damages are due for any libel proves that there may be a libel which causes no substantial injury. We say in Call v. Larrabee, 60 Iowa, 214, 215, 14 N. W. 237, that:

“The law presumes that damages do result from the libel, and, in the absence of proof thereof, it will award at least a nominal sum.”

In Dorn v. Cooper, 139 Iowa, 749, 117 N. W. 1, 118 N. W. 35, 16 Ann. Cas. 744, we declarethat “it is no doubt true that nominal damages only may be awarded in libel suits.” It is true, we add, that, “as a general rule, the law presumes actual damages from the publication of an article libelous per se.” It will be noted that this either cancels the concession that there may be a merely nominal recovery, or else is a statement made on the erroneous assumption that some libels are, while others are not, actionable per se. Be that as it may, the statement does run counter to what is said as part of it, and with the holding of Call v. Larrabee, supra. Moreover, it is dictum. It is used in reversing for the giving of an instruction. That instruction includes nominal damages among what is permissible recovery. But the reversal is not for that. The instruction says, nominal damages, as those given where a wrong has been committed and no actual injury or damage has resulted, and then proceeds that, if the jury finds the article in question caused no injury to plaintiff, then to award only nominal damages, and that “in such case some small sum, as one cent or ten cents is awarded as damages in order to carry costs against the person doing the writing.” We hold that the jury has nothing to do with the matter of costs, and it is better practice not to refer to it in the instructions, but that, “if it is referred to, the jury should not be misled regarding the matter.” We say:

“The instruction here given, in view of the offer made to confess judgment, was positively misleading, in that the award of nominal damages stated would not carry costs. A jury in such cases is prone to return a compromise verdict, and it is well known that they frequently return their verdicts with an eye to the adjustment of the costs. It is the common knowledge of the profession that in such cases juries, more frequently than otherwise, consider the matter of costs in making their awards. With this fact in mind it is better to say nothing about costs, but if reference is made to the matter, it should be so stated as not to mislead the jury. Under the English practice it was the custom of judges not to refer to the matter of costs, even at the jury's request. We are constrained to hold that this instruction, in view of the circumstances disclosed by the record, should not have been given.”

Also:

“The appellee says, however, that the jury did not follow the instruction, in that it awarded compensatory damages in the sum of $1. It will hardly do to say that a verdict of $1 is compensatory, but, if it be, this does not cure the error in the instruction. The award may have been made in order that there might be no question as to who should pay the costs, without any reference to compensation to the plaintiff; but, if this be not true, the vice of the instruction with reference to mitigation of damages becomes apparent. That is to say, the jury may have concluded that the litigating facts pleaded should be considered in reduction of actual damages suffered. Upon no ground can the instruction given be sustained.”

It is plain nothing said concerning a presumption of actual damages is of the decision. We held in Crawford v. Bergen, 91 Iowa, 677, 679, 60 N. W. 205, that we will not reverse for failure to award nominal damages for slander. True, in Flues v. Nonpareil Co., 155 Iowa, 294, 135 N. W. 1083, Ann. Cas. 1915A, 33, we say there is a distinction between slander and libel, but, also, that the distinction is that:

“Words are often deemed libelous per se when written which would not necessarily be slanderous when spoken.”

The only reasonable interpretation is that words libelous per se may not be slanderous per se. The Flues Case is not authority for the proposition that, though there may be a nominal verdict for a slander which charges a statute crime, which is the Crawford Case, there cannot be such a verdict for any libel. The rule that every libel is per se actionable includes the gravest and the lightest. In slander, the graver only is thus actionable. While not every slander is slander per se and every libel is libelous per se, a false oral accusation of arson is as much actionable per...