Lauder v. Jones

Citation13 N.D. 525,101 N.W. 907
Decision Date07 December 1904
CourtUnited States State Supreme Court of North Dakota

13 N.D. 525
101 N.W. 907


Supreme Court of North Dakota.

Feb. 24, 1904.
On Rehearing, Dec. 7, 1904.

Syllabus by the Court.

1. Where the language of an alleged libel is fairly susceptible of a construction which renders it defamatory, and therefore actionable, even though it is also susceptible of a construction which would render it innocent, the complaint states a cause of action, and it is for the jury to determine whether the words were used in an innocent or defamatory sense.

2. It is not necessary, to render words defamatory and actionable, that they shall make the defamatory charge in direct terms. It may be made indirectly, and is not, for that reason, the less actionable.

3. Under the statute of this state (section 2715, Rev. Codes 1899), every false and unprivileged publication by writing, “which exposes any person to hatred, contempt, ridicule or obloquy or which causes him to be shunned and avoided * * *” is libelous and actionable.

4. The alleged libelous publication involved in this case is in the form of an affidavit purporting to have been made by one Wendall of and concerning the plaintiff in his judicial capacity, and published by the defendant by delivering copies thereof to divers persons. A copy of the affidavit is set out in full in the opinion. Held, that said writing is defamatory and actionable in this: That (1) it directly charges the plaintiff with a willful refusal to perform a legal duty, and indirectly charges that such refusal was from corrupt motives; (2) it fairly charges the plaintiff with betraying confidential communications to an alleged criminal for the purpose of shielding him; and (3) by insinuation it charges that the plaintiff was privy to a corrupt agreement, whereby, for a money consideration, protection was extended to law violators.

5. Under section 5289, Rev. Codes 1899, the defendant in a libel case is authorized to plead, as a complete defense, the truth of the matter charged to be defamatory; and also to plead any mitigating circumstances to reduce the amount of damages, “and whether he prove the justification or not he may give in evidence the mitigating circumstances.”

6. The truth of the alleged defamatory matter, as well as facts in mitigation, are new matter, and, to be available as a defense under section 5289, Rev. Codes 1899, must be pleaded in the answer.

7. It was not error, therefore, for the trial court in this case, there being no answer by way of justification or in mitigation, to exclude evidence offered to prove the truth of the statements contained in the libelous affidavit.

8. This case is one where punitive as well as compensatory damages are allowable, and the question of the amount is peculiarly within the province of the jury. We are unable to say that the amount of the award, $7,000, is so large that it shows that the jury acted under the influence of passion and prejudice.

On Rehearing.

9. Malice, either express or implied, is essential to a recovery in all actions for defamation. When a defamatory charge is made upon an unprivileged occasion, the law implies malice for the purpose of sustaining the action and the recovery of compensatory damages, but when the occasion is privileged, the publication is presumed to have been made in good faith, and the burden is on the plaintiff to prove that it was made with actual malice.

10. For the purpose of showing actual malice in publishing a libel, the plaintiff may prove that prior to the commencement of the action defendant published the same words, or similar words relating to the same subject-matter, and imputing the same general charge as that sued upon, but may not introduce evidence which merely tends to show general malice, or to show the publication of a distinct calumny.

11. The testimony of a witness in a judicial proceeding, which is pertinent to the issues, cannot be made the subject of an action for defamation. The occasion is privileged, and the exemption of the witness for liability for his words is absolute.

12. The occasion being privileged, the law presumes that the statements of the witness are made in good faith and without malice.

13. “As bearing upon the question of the malice of the defendant in publishing the libel,” which is the subject of this action, the plaintiff introduced in evidence at the trial of this case, over defendant's objection, a certain affidavit which the defendant had previously made in a proceeding in this court, the substance of which is set forth in the opinion. Held error, for two reasons: (1) The statements contained in it do not relate to the subject-matter of the alleged libel; (2) having been made upon a privileged occasion, they are presumed to have been made in good faith. Further, its admission was highly prejudicial, for which a new trial must be granted.

14. The falsity of a defamatory charge is always presumed, and the defendant who relies upon the truth as a defense must plead it, and this is true as to defamatory statements made upon privileged occasions.

Appeal from District Court, Richland County; John F. Cowan, Judge.

Action by William S. Lauder against Evan S. Jones. Judgment for plaintiff, and defendant appeals. Reversed on rehearing.

[101 N.W. 907]

Charles E. Wolfe and Guy C. H. Corliss, for appellant. W. H. Redmon, J. A. Dwyer, Purcell & Bradley, and F. M. Nye, for respondent.

[101 N.W. 908]


Action for libel. The jury returned a verdict for $7,000 in plaintiff's favor. Defendant made a motion for new trial. This appeal is from the order overruling the same. The motion for new trial was made on a statement of case in which defendant specified 110 alleged errors as grounds for the motion. The same errors, and all of them, are assigned in appellant's brief as grounds for reversing the order appealed from. Only a portion of them, however, are supported in the body of his brief “with reasons and authorities,” as required by rule 14 of this court (91 N. W. viii), and are therefore deemed to have been abandoned. The alleged defamatory writing is in the form of an affidavit, which purports to have been made by one Elmer L. Wendall. The plaintiff claims that the defendant published this affidavit by exhibiting it, and by delivering copies thereof, personally and by mail, to divers persons. A copy of the affidavit is set out in the complaint, and in a number of innuendoes the plaintiff places his interpretation upon the alleged defamatory publication.

The complaint alleges that the plaintiff is now and for more than 21 years has been a resident of Richland county in this state, and that during the last 12 years he has been and now is the district judge of the Fourth Judicial District; that in the months of April, May, June, and July, 1902, the defendant, with intent to injure the plaintiff in his good name and fame as a man and citizen, and as a judge, wickedly and maliciously wrote, printed, and published, and caused to be written, printed, and published, of and concerning the plaintiff, the following false, malicious, defamatory, and unprivileged libel, to wit (for the sake of brevity the innuendoes are omitted):

“This is a copy of affidavit sent to Rev. F. Frank Hunter of Fairmount, N. D., by the Rev. E. L. Wendall, of Montrose, S. D., with the request that it be published. Refer to either of these gentlemen. ‘State of South Dakota, County of McCook-ss.: Personally appeared before me, W. B. Phelps, a notary public of the state of South Dakota, residence in the county of McCook, in the village of Montrose, in said state of South Dakota, the undersigned deponent, Elmer Lincoln Wendall, personally known to me, as a resident of said village of Montrose, in said county of McCook, in said state of South Dakota, on this 11th day of April, in the year of 1902, and deposeth as follows: On the 17th day of April, in the year of our Lord 1900, I was transferred by Bishop C. C. McCabe, of the Methodist Episcopal Church, from the Illinois Conference of the said church, and on the 19th day of April Bishop McCabe appointed me to the pastorate of the Methodist Episcopal Church at Lidgerwood, North Dakota, and at the close of the Conference I proceeded to the field which the bishop had appointed me, where I had been acting as pastor for nearly two months previous to said appointment. At this time there were at least ten places in the village of Lidgerwood that were commonly reported to be places where liquor was sold in defiance of the laws of the state of North Dakota. One of the most notorious of these resorts was conducted in the block of wooden buildings situated on Main street of the village, known as the Maxwell Block,” and said to be the property of one Ralph Maxwell. During the summer of 1900 I collected a sum of money amounting to something like sixty dollars from the business men of Lidgerwood. All of whom were asked to contribute did so. They contributed with the understanding that I was not to reveal their names, and I have kept that pledge sacredly ever since. The State Enforcement League sent a detective by the name of Edwards to Lidgerwood, and this man worked up evidence against seven different places located in the village of Lidgerwood in the county of Richland and state of North Dakota. These places were the places in Maxwell's block on Main street; the house of ill fame conducted by Maxwell west of town in his pasture; the creamery conducted by Ralph Maxwell in the northwestern part of the town near the track of the Minneapolis, Sault Ste. Marie R. R.; the drug store conducted by Mat Londa, and the Columbia Restaurant by Mrs. Ingebord Berg. All of these places were conducted on Main street except the house of ill fame and the creamery. The said Edwards, after purchasing intoxicants at all of the above-mentioned places, proceeded to the city of Wahpeton, in said county of Richland and state of North Dakota, and in the presence of competent judicial officers swore out search warrants, describing...

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