McLean v. Merriman

• Citation: 175 N.W. 878,42 S.D. 394
• Decision Date: 05 January 1920
• Docket Number: 4537.
• Parties: McLEAN v. MERRIMAN.
• Court: Supreme Court of South Dakota

175 N.W. 878

42 S.D. 394

McLEAN v. MERRIMAN.

No. 4537.

Supreme Court of South Dakota

January 5, 1920

Appeal from Circuit Court, Spink County; Alva E. Taylor, Judge.

Action by Charles McLean against E. B. Merriman. From judgment entered upon directed verdict and from order denying new trial, defendant appeals. Appeal from judgment not considered, and order appealed from affirmed.

Roy T Bull, of Redfield, for appellant.

Sterling & Clark, of Redfield, for respondent.

WHITING J.

Action to recover damages because of alleged libel. A verdict was directed in favor of defendant. From the judgment entered thereon, and from an order denying a new trial, defendant attempted to appeal.

The notice of appeal was served and filed more than a year after the entry of the judgment. The attempted appeal from the judgment was therefore abortive. Chapter 201, Laws 1917; section 3147, Rev. Code 1919. This is true even though the time within which an appeal from the order denying a new trial could be taken had not yet expired. Keyes v Baskerville, 41 S.D. 214, 170 N.W. 143. The notice of appeal was served more than 60 days after date of the order denying a new trial but within 60 days of the date of service of notice of such order. The appeal from the order was effectual. Braun v. Thuet, 174 N.W. 807. The motion for new trial was submitted within a year after entry of judgment. On such appeal from the order there can be presented all questions that could have been presented upon an appeal from such order if such appeal had been taken within a year from date of entry of judgment. Keyes v Baskerville, 175 N.W. 874.

Respondent moved for a directed verdict upon three separate and distinct grounds. If either ground was sufficient, the ruling of the trial court must be sustained.

Respondent contends that appellant failed to give the notice required by chapter 153, Laws 1915, sections 96 and 97, Rev. Code 1919; and further contends that such failure bars appellant's right to recover even actual damages. Inasmuch as the trial court must be sustained on the merits, we do not feel called upon to determine the correctness of these contentions.

If the communication in question was privileged, such privilege was qualified and not absolute. It is clear that if it comes under section 99, Rev. Code 1919 (declaring what communications are privileged), it comes under subd. 3 thereof. The difference between a qualified and absolute privilege is that malice destroys the first but does not affect the latter. Andrews v. Gardiner, 224 N.Y. 440, 121 N.W. 341, 2 A. L. R. 1371. But even though the privilege be but qualified, the burden to establish the malice necessary to destroy it is upon the plaintiff. Section 99, Rev. Code 1919; Egan v. Dotson, 36 S.D. 459, 155 N.W. 783, Ann. Cas. 1917A, 296. In the case at bar there was absolutely no evidence upon which a finding of malice could have been based. It follows that the trial court did not err in directing a verdict if the communication in question was privileged.

Respondent was the publisher of a weekly newspaper published at Redfield, S.D. The communication in question was published just prior to the general election in the fall of 1916. At this election an amendment to the Constitution, the effect of which would be to extend the elective franchise to women, was to be submitted to the voters for ratification or rejection. Plaintiff, a resident of Iowa, had come into this state and taken charge of the campaign waged against the ratification of the amendment. The clear purport of the article published was to lead the readers of the paper to believe that those conducting the campaign against the amendment were aligned and associated with the "liquor interests." There was also pending for ratification or rejection at such general election an amendment providing for the prohibition of the liquor traffic. The article in question charged that the opposition to the Suffrage Amendment was financed from Massachusetts and was in secret collusion with the "wets." It detailed to some extent the work appellant had been doing. It criticized the importation of workers to aid in the fight against the Suffrage Amendment. It called attention to the alleged sources of the financial support given both for and against such amendment. It stated that appellant was "from Dubuque which has the reputation of the 'wettest' city in Iowa." Then apparently in further support of the claim that the fight against this amendment was being aided by the liquor interests, there was copied an article from the Woman's Journal. In this it was directly charged that the liquor interests were supporting and aiding the campaign against the Suffrage Amendment; and it was stated therein that appellant-

"is making people believe he is not employed by the liquor people. Perhaps he is not. But the facts remain that when he was at Deadwood a short time ago he divided his time, we are told, between the First National

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