Myers v. Longstaff

• Decision Date: 21 November 1900
• Citation: 84 N.W. 233,14 S.D. 98
• Parties: MYERS v. LONGSTAFF.
• Court: South Dakota Supreme Court

84 N.W. 233

14 S.D. 98

MYERS v. LONGSTAFF.

Supreme Court of South Dakota

November 21, 1900

Appeal from circuit court, Beadle county; A. W. Campbell, Judge.

Action by H. Ray Myers against John Longstaff. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

John Wood and H. Ray Myers, for appellant. A. W. Wilmarth, for respondent.

CORSON J.

This is an action brought by the plaintiff against the defendant to recover damages alleged to have been sustained by him by reason of certain articles published in a newspaper conducted by the defendant, and claimed by the plaintiff to be libelous. Verdict and judgment for the defendant, and the plaintiff appeals.

It is alleged in the complaint that the plaintiff was a resident of the city of Huron, an attorney at law, a candidate for the office of mayor of said city, and an applicant for a consulship, at the time the alleged libelous articles were published. The defendant admitted that plaintiff is such attorney at law, and was a candidate for the office of mayor and an applicant for a consulship, and that he published the articles alleged to be libelous. The defendant alleges that said publications were made as a matter of public interest to the people of the whole community, and were true in substance and in fact, and denies that the same were made with any malicious intent. The defendant further alleges that in October, 1895, the plaintiff was appointed to the office of treasurer of the city of Huron, to fill the unexpired term caused by the resignation of one Patterson, and as such treasurer received the moneys belonging to the city of Huron that on the termination of his term as treasurer he made a report to the city council of said city of the moneys received and paid out by him as such treasurer; that said city council appointed a committee to investigate the report and that said committee made their investigation, and reported thereon to the city council, which report showed a shortage in the accounts of the plaintiff as said treasurer in the sum of $467.47; that said city council directed the city attorney to bring an action against the plaintiff to recover the said amount, which action was tried by the circuit court in and for Beadle county, and findings of fact were made and judgment entered, which are fully set out in the answer. The defendant further alleged that, prior to the time the plaintiff was appointed treasurer of said city, certain injunction proceedings were had against his predecessor, and continued as to the plaintiff, which are fully set out in the answer. The answer contains certain other allegations, explanations, and denials, not necessary to be stated in this opinion. The plaintiff moved to strike out portions of this answer, and the refusal of the court to strike out the same is alleged as error. The portions sought to be stricken out consisted mainly of the proceedings had on the trials above referred to, and the circumstances connected with the same. The plaintiff contends that where a party relies, as justification, upon the truth of the alleged defamatory publications, he must allege the particulars showing the truth of the publications; but we are of the opinion that in this case the allegation that the alleged defamatory matter was true in substance and in fact was sufficient. It was not necessary for the defendant to repeat the portions of the articles set out in the complaint, so published, in his answer, and state that each and every of said articles were true.

The plaintiff further contends that the matter pleaded in mitigation of damages should have been stricken out as irrelevant and redundant. Our Code provides that (in actions for libel and slander), "in the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory and 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." Section 4930, Comp. Laws. The defendant, therefore, having alleged the truth of the matter alleged to be defamatory, was authorized to set up any mitigating circumstances to reduce the amount of damages; and, whether he succeeded in his justification or not, he was authorized to give in evidence the facts pleaded in mitigation of damages. It will be observed that section 4930, above quoted, very materially changes the common-law rule in regard to libel, and that the failure to prove the truth of the alleged defamatory matter is not conclusive evidence of malice on the part of the defendant, and does not ordinarily tend to enhance his damages, but the defendant may still show in mitigation circumstances tending to reduce the amount of damages; and evidence showing that he acted in good faith, upon probable cause, and without malice, would constitute such mitigating circumstances, where the alleged defamatory words were published of and concerning the plaintiff as a candidate for a public office.

The plaintiff further contends that the verdict is not supported by the evidence, but, as the order denying a new trial was not entered of record in the court below at the time the appeal was taken, the question as to the sufficiency of the evidence has been eliminated from the record on motion of the defendant, and is not before us for consideration. See Myers v. Longstaff, 12 S.D. 641, 82 N.W. 183.

The plaintiff further contends that the court erred in its instructions to the jury. As the evidence is not before us, the instructions will be presumed to be correct, unless they are clearly wrong under any state of facts that might have been proven at the trial. Many of the exceptions taken by the plaintiff to the charge of the court were taken to those parts of the charge in which the court states to the jury the issues raised by the pleadings, and the claims made by the respective parties. It is not contended that the court did not correctly state the pleadings, the issues raised by them, and the claims of the respective parties. Hence there can be no error predicated upon these portions of the charge. It is due, perhaps, to counsel for the plaintiff to say that they based these exceptions to those portions of the charge upon the ground that the matter moved to be stricken out was irrelevant, redundant, and immaterial, and constituted no defense to the action, and also for the reason that there was no proper plea or allegation in the answer amounting to a justification, and for the further reason that there was no evidence in the case to support such a pleading. As this court, however, holds that the court committed no error in refusing to strike out those portions of the answer complained of, and the evidence is not properly before us, the objections to those portions of the instructions require no further consideration.

The plaintiff further contends that the following portion of the charge to the jury was erroneous: "Now, gentlemen, about the first question you will be called upon to solve is this What impression would this first article complained of ordinarily convey to the mind of the reader? The rule is that, where an article alleged to be libelous is susceptible of two meanings, it is for the jury to say, after an inspection of the article, what would naturally be understood therefrom by the ordinary reader. The plaintiff contends that the only inference to be drawn therefrom is that he was being prosecuted criminally for the crime of embezzlement, while the defendant claims that no such inference could reasonably be drawn, but that it would be generally understood by ordinary readers to mean simply that he was said to be short in his accounts as treasurer, and that the proceedings were simply proceedings to ascertain and enforce the rights of the city." The plaintiff claims that the court erred in this portion of its charge, for the reason that the construction or meaning of the language used in the published articles, and complained of, was not a question for the jury, but was a question of law for the court. We are of the opinion, however, that the court was right in holding that the meaning of the alleged defamatory articles...