Morse v. Times-Republican Printing Co.

• Decision Date: 23 September 1904
• Citation: 100 N.W. 867,124 Iowa 707
• Parties: FRANK N. MORSE, Apellant, v. TIMES-REPUBLICAN PRINTING COMPANY, Appellee
• Court: Iowa Supreme Court

100 N.W. 867

124 Iowa 707

FRANK N. MORSE, Apellant, v. TIMES-REPUBLICAN PRINTING COMPANY, Appellee

Supreme Court of Iowa, Des Moines

September 23, 1904

Appeal from Marshall District Court.--HON. OBED CASWELL, Judge.

ACTION at law to recover damages on account of the publication of an alleged libel. At the close of the evidence the court directed a verdict in favor of the defendant. The plaintiff appeals.

Reversed.

Boardman Aldrich & Lawrence, for appellant.

Binford & Snelling and J. L. Carney, for appellee.

OPINION

WEAVER, J.

The defendant corporation is the publisher of a daily newspaper at Marshalltown, Iowa and at the time of the matters complained of the plaintiff was engaged in business as soliciting agent for a life insurance company in Central Iowa where said newspaper had a large circulation. The alleged libel for which damages are claimed was published in said paper on or about May 27, 1901, and is in the following words:

Exhibit A.

Morse Flew High.

A Marshalltown Insurance Agent Brings Himself Into

Prominence.

Another young man by the name of Morse is bringing to Marshalltown unsavory advertising. The appended article has reference to Frank N. Morse, a young man who came to the city about three years ago to accept a position with the Letts-Fletcher Company, but who, after losing his position, drifted into the life insurance business. His former friends and acquaintances in this city, where he posed as a ladies' man, and lived far beyond his means, would recognize him from the article from the Boone Republican, even were it not known that the circumstances related pertained to Morse's actions. The Republican says: "Not long ago, the exact date of which has been forgotten, a Cholly-boy blew into town and took everything by storm. He was it with a big I. Swell parties were given in his honor, and he was carried around on a little narrow shingle all painted up in auburn hue. The young ladies bought him candy and gum and exchanged rings with Cholly, for he was just too cute for anything. The sweet little dear He was the guest of honor of all the swell doin's, Cholly was. The evenings were too far apart and parties could not be planned often enough, so afternoon teas were given him. They were just the thing for Cholly, doncher know? Mercy, me, how he liked them He had scarcely time to pick his beautiful teeth between meals, and just let' em go. That was ill bred in Cholly, to go to parties with cigar-stained teeth, but the ladies didn't care; he would have been just as sweet without teeth.

"Charles came to Boone from Marshalltown, where all bad men who come to Boone are said to live. Charles was not in Boone for his health. Charles was in Boone for the other fellow's health, Charles was. The other fellow's health is all that Charles left in Boone. He took everything else the other had. Charles was in the insurance business when he came to Boone. Since he has quit the town no one knows exactly what business Charles is in. The insurance company which Charles claimed employed him would like to know; so would a number of Boone parties who took out a policy in Charley's company.

"The tea party season is over. There hasn't been a party for a week or ten days. Charles is gone, and the parties but remind us of the happy days gone by when Cholly was the guest and when Cholly let the girls chew his fresh cud of tutti frutti. Boone misses him very much. So does the company selling insurance. Cholly was strictly onto his job just the same; he got away with over $ 500 in good hard currency, and a number of business men have recently received inquiries as to the whereabouts of the agent who was making our city his temporary headquarters."

So much for the Boone view of the young man. Morse has been representing the Pennsylvania Mutual Life, of which Mr. C. H Rumsey of Des Moines is State agent. Mr. Rumsey was in the city a day or two ago investigating his agent's accounts. He says he straightened matters with the Boone patrons of the company, but finds nothing here that needs his attention, although Morse owes many bills, some of which are quite large. Mr. Rumsey says Morse has not earned his salary and he will therefore dicharge him, after presenting him with a ticket to St. Louis, his home. He says Morse has not been guilty of any great wrongdoing, but has been indiscreet to live beyond his means. Among his Marshalltown creditors is the Pilgrim Hotel, which has a claim of $ 80 for board, but has enough of Morse's personal belongings, including some furniture, to square the account. One of the banks and several of the personal friends of Morse are creditors for various sums.

The petition contains the usual formal allegations claiming that the publication was made of and concerning plaintiff; that it was false and malicious, having a tendency to bring him into public disgrace, ridicule, and contempt, and to cause it to believed by the public that he had been guilty of the crime of embezzlement; and did in fact work great injury to his business, and cause his discharge from the service of the insurance company by which he was employed; and upon this showing asks to recover both general and special damages. The defendant admits the publication, but denies generally and specifically the charges of malice and the alleged libelous character of the publication. For a second defense it pleads that as the publisher of a newspaper it had the right to publish the matter complained of as an item of news, with fair and reasonable comment for the information of the readers of the newspaper; that such in fact was the character of the language used, and the publication was therefore privileged. For a third defense it is averred that so much of said alleged libelous article as is quoted from the Boone Republican was in fact copied from that paper, and that the remainder of the publication was simply comments of an "explanatory and palliative character," intended to "modify and explain away and clear up" the strictures contained in the language quoted from the Republican. The same count alleges the truth of certain specific statements in the article, not, however, including the statement that plaintiff had "got away with $ 500." A fourth count is also pleaded as matter in mitigation, alleging that the publication was made in good faith, without malice, and only after exercising reasonable care to verify the same.

The issues were tried to a jury, and at the close of the testimony the court sustained the defendant's motion for a directed verdict based on the following grounds: "First. Because the article published is not a libel, and is not actionable per se, and there is no evidence tending to prove that such article was published with malice. Second. Because said article is not actionable per se, and there is no evidence tending to prove that any special damages resulted to plaintiff from the publication of said article. Third. Because said article is privileged, or conditionally privileged, and the evidence, uncontradicted, proves that the same was published without malice, and there is no evidence tending to prove that any special damages resulted from said publication. Fourth. Because the evidence fails to show that the plaintiff was discharged by reason of the publication of said article, and because the evidence shows that the plaintiff was discharged for other reasons than the publication of said article. Fifth. The article published is not a malicious defamation of the plaintiff; nor did it tend, or ought it to tend, or ought it to tend, to provoke him to wrath, and expose him to public hatred, contempt, and ridicule; nor does it fall within the definition of libelous matter as defined by section 5086 of the Code. Sixth. The article in question is shown to have been published by the defendant with an honest purpose to set forth the facts, and it is the undisputed evidence that it did set forth the facts in regard to the plaintiff. Seventh. The occupation of the plaintiff was that of a public character, engaged in soliciting life insurance, and the defendant had the right to republish the Boone article, and to make statements and comments upon it, such as were justified by the facts, for the information of the public at large and its readers. Eighth. The occasion in question of the publication of this so-called libel was that of conditional privilege. The presumption arises that the publication was bona fide, and without malice, and it is incumbent upon the plaintiff to overcome this presumption, and such presumption has not been overcome by any evidence in this case."

The motion having been sustained generally, the record affords us no information as to what specific propositions the trial court intended to affirm by its ruling, and we are therefore required to consider all the several grounds assigned. To avoid undue extension of this opinion, we shall endeavor to group the several objections in a few paragraphs.

I. The motion assumes that the publication complained of is not libelous per se, and such is now the contention of the appellee in argument. Libel, as defined by our statute is the "malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath or expose him to public hatred, contempt or ridicule or to deprive him of the benefits of public confidence or social intercourse." Code, section 5086. This definition, though found in the Criminal Code, has been held applicable in civil actions. Stewart v. Pierce, 93 Iowa 136, 61 N.W. 388. It is also the holding of the authorities generally as a matter of common law that the publication of any printed false statement with reference to another person, which has a tendency to...