Lowe v. The Herald Co.

• Decision Date: 03 June 1889
• Citation: 6 Utah 175,21 P. 991
• Court: Utah Supreme Court
• Parties: CHARLES L. LOWE, RESPONDENT, v. THE HERALD COMPANY, APPELLANT

21 P. 991

6 Utah 175

CHARLES L. LOWE, RESPONDENT, v. THE HERALD COMPANY, APPELLANT

Supreme Court of Utah

June 3, 1889

APPEAL from a judgment and from an order denying a new trial, of the district court of the third district. The opinion states most of the material facts, except the following: The complaint except as to the defendant's incorporation, was charged thus:

That heretofore, to-wit: On the first day of November, A. D. 1887 at the City and County of Salt Lake and Territory of Utah the said defendant, falsely and maliciously in the newspaper aforesaid, did publish and cause and procure to be published of and concerning the said plaintiff a certain false scandalous, malicious and defamatory libel, and in a certain part of which said libel there was and is contained amongst other things the false, scandalous, malicious, defamatory and libelous matters following of and concerning the said plaintiff, that is to say:

"Charles L. Lowe, a well-known cattle man of Wellsville, was arrested at that place Saturday afternoon by Deputies Steele and Whetstone. The complaint was made by Thomas Grant, charging Lowe with having committed adultery with his (Grant's) sister on October 20th. The accused was brought to Logan late Saturday night and put under $ 1,000 bonds to appear next Thursday, at 2 o'clock p. m., when he will have a hearing before Commissioner C. C. Goodwin, William Goodwin, of Logan and Frank Price being his sureties. The current report of the vile affair, which seems to have been a premeditated case of beastly rape, is as follows:" (Meaning and intending thereby that the plaintiff had committed a beastly rape upon a woman who was and is the sister of said Thomas Grant.)

And in another part of which said libel there was and is contained, among other things, the false, scandalous, malicious, defamatory and libelous matter following of and concerning the said plaintiff that is to say:

"At Wellsville, on October 20th, a half-witted girl named Grant was at Mrs. Lewis' millinery store, and this lady (meaning the Mrs. Lewis mentioned) sent the girl (meaning the girl named Grant) to her (Mrs. Lewis) private residence after some patchwork. She went at once, but after arriving at the house experienced some trouble in finding the articles. While here, Lowe (meaning the plaintiff) made his appearance and sent her upstairs for something, at the same time following her. He (meaning the plaintiff) told her to go to the window and see if any one was coming; she did so, and replied that no one was in sight, when he (meaning this plaintiff) is said to have began using his persuasive powers without effect; then threats were heaped upon her, to force accession to his base wishes. Still this proved fruitless, whereupon he threw her to the floor and it is supposed satiated his fiendish and unnatural appetite."

(Meaning and intending thereby that this plaintiff used his persuasive powers to induce a half-witted girl, she not being his wife, to have sexual intercourse with him, and, failing in said attempt, that this plaintiff used force and committed the crime of rape upon the said girl.)

And in another part of which said libel there was and is contained, among other things, the false, scandalous, malicious, defamatory and libelous matter following of and concerning the said plaintiff, that is to say:

"This is the story of the girl, who kept it quiet until recently, when being pressed to go to the place again, at first remonstrated, then broke down weeping bitterly. After considerable questioning she related the above. Lowe (meaning this plaintiff) tries to appear as if it was nothing serious, and that it would come out all right, alleging that it was a libelous concoction, gotten up by some of his (meaning the plaintiff) religious enemies. This must be false, as the parties bringing the charges against him were of his own clan, and whom he once classed as his friends."

(Meaning and thereby intending that the girl mentioned had confessed that this plaintiff had indulged in criminal sexual intercourse with her, and that this plaintiff had committed the crime of rape upon said girl, and that although the plaintiff was guilty that he was brazenly endeavoring to appear innocent.)

Thereby the plaintiff suffered greatly in his reputation and character, and was greatly distressed in mind in the sum of twenty-five thousand dollars.

The Court, in ruling upon the question of reputation, limited the inquiry as to the plaintiff's character to his being a chaste and moral man, and as an orderly and law-abiding man.

Reversed and remanded.

Mr. Jabez G. Sutherland, Mr. Arthur Brown and Mr. Le Grand Young, for the appellant.

Mr. Orlando W. Powers and Mr. Charles W. Bennett, for the respondent.

SANDFORD C. J. JUDD, J., concurring. HENDERSON, J., dissented.

OPINION

SANDFORD, C. J.:

This is an appeal from the judgment against the defendant, and from an order denying the motion for a new trial. The action was brought against the defendant, a corporation, publishing in the city of Salt Lake a newspaper known as the "Salt Lake Daily Herald," to recover a judgment for having, as the plaintiff alleges, published false, scandalous, malicious and libelous matters concerning the plaintiff. The libel, as set out in the complaint, charged that the defendant committed adultery with a female, a half-witted girl; that from the current report of the affair it seemed to be a premeditated case of beastly rape. It is not necessary to state it in detail. The plaintiff alleged that by the publication he had suffered greatly in his reputation and character. The defendants, in their answer, denied that the publication was false or malicious, or that it was intended so to be; that the said publication was true; that it had been published in this paper as an item of news, in its usual course of business, without malice or ill will, and without any attempt to defame or injure the plaintiff, but with a full belief in the truth of the statement. The defendant contends on this appeal that certain rulings made on the trial, and to which exceptions were taken, were erroneous. These were the exclusion of the details of the complaint made by the female shortly after the occurrence, the admission of evidence tending to show the plaintiff's good character at other places than where it was attacked by the evidence offered by the defendant; to the charge to the jury, and to the verdict rendered, on the ground that it was excessive. The fact of publication by the defendants in their newspaper of the statement relative to the plaintiff was admitted.

There is no doubt but that the published account was unquestionably a libel. It tended to blacken the reputation of the plaintiff, and expose him to public contempt. It accused him of a crime for which he could have been indicted and punished by law. White v. Nicholls, 44 U.S. 266, 3 HOW 266, 291, 11 L.Ed. 591. No person of ordinary intelligence can read the publication complained of and resist the conclusion that it charged a grave offense upon the plaintiff. An editor or publisher of a newspaper has a right to publish the fact that an individual has been arrested, and upon what charge; but he has no right to assume that the person is guilty, or to hold him out to the world as such. It was in fact immaterial whether a charge of adultery or of rape was made. The question for the jury was not whether it was one kind of felony or another, but whether the publication was true as was asserted by the defendant. The Court instructed the jury as to what constituted the crime of rape, and it is claimed, on appeal that...