Salinger v. Cowles

• Decision Date: 15 December 1922
• Docket Number: No. 34089.,34089.
• Citation: 195 Iowa 873,191 N.W. 167
• Parties: SALINGER v. COWLES.
• Court: Iowa Supreme Court

195 Iowa 873

191 N.W. 167

SALINGER

v.COWLES.

No. 34089.

Supreme Court of Iowa.

Dec. 15, 1922.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Suit for libel. The jury returned a verdict for defendant, and plaintiff appeals. Affirmed.John McLennan, of Des Moines, for appellant.

Clark, Byers & Hutchinson, of Des Moines, for appellee.

FAVILLE, J.

The appellant's petition alleges that appellee is president of a corporation that owns, controls, and publishes a newspaper known as the Des Moines Register, published at Des Moines, Iowa, and on September 4, 1916, the appellant was a judge of the Supreme Court of Iowa, and on said date there was published in said newspaper an article charging, in effect, that appellant had used his position as a judge of the Supreme Court of Iowa to coerce railroads having important litigation in that court into giving employment to one A. C. Savage.

The petition alleges that on October 23, 1916, the appellant served notice in writing upon the appellee, demanding of him that he make a retraction, and that no retraction had been made. In January, 1918, the appellee filed an answer which was a general denial. Subsequently the appellee filed his first amendment to the answer, which amendment was attacked by motion for more specific statement and to strike parts therefrom, which motion was sustained by the court, whereupon the appellee filed his second amendment to answer, which was attacked by motion for more specific statement and to strike certain parts thereof, which motion was overruled. Thereafter the appellant demurred to said second amendment to the answer, which demurrer was overruled.

The cause proceeded to trial upon the issues so joined, and the jury returned a verdict in behalf of the appellee.

Thirty-five errors are assigned, which are supported by 108 brief points. The court held that the article was libelous per se.

I. It is strenuously urged by the appellant that the court erred in submitting to the jury any question of justification. The article sued upon is as follows:

“Former State Senator Savage is quoted by the Des Moines News as predicting that Harding will have more votes in Iowa than Hughes. We are pleased to hear from Senator Savage, because it brings his head above the political horizon and makes it proper to comment on his present employment and the occasion of it. Senator Savage is now on the pay roll of the Rock Island Railroad. Will he tell the readers of the Register how he happened to drop into that place, after having exhausted the family resources. Did Senator Savage apply for a job in the usual way? Or did Judge Salinger of the Supreme Court, at a time when the railroads had litigation of the most important kind before his court, notify the railroads that Senator Savage must be ‘taken care of’? If Senator Savage does not choose to answer this question, perhaps Judge Salinger will care to answer it.”

Appellant alleged:

“That said matter was used in the defamatory sense of charging the plaintiff with having used his position as a judge of the Supreme Court of Iowa to coerce railroads having important litigation in that court into giving employment to one A. C. Savage.”

The first division of the amendment to the answer alleged:

“That the charge in the publication complained of by the plaintiff charging the plaintiff with having used his position as a judge of the Supreme Court of Iowa to coerce railroads having important litigation in that court into giving employment to one A. C. Savage was and is true, and said publication in this and all other respects was and is true.”

It is urged that upon this state of the pleadings there was no sufficient plea of justification. It is contended that the plea of justification was insufficient because it is not as broad as the libel, as the very charge.

[1] It is the general rule that a plea in justification must be as broad as the charge

and as the precise charge. It need not be in the exact form of the charge, but it must be in essence and substance, the same. Hollenbeck v. Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306;Morse v. Printing Co., 124 Iowa, 707, 100 N. W. 867;Berger v. Pub. Co., 132 Iowa, 290, 109 N. W. 784;Snyder v. Tribune Co., 161 Iowa, 671, 143 N. W. 519;Wallace v. Homestead Co., 117 Iowa, 348-361, 90 N. W. 835;Rhynas v. Adkisson, 178 Iowa, 287, 159 N. W. 877.

The allegations of the petition and of the answer are quoted above. It is apparent that the language of the answer literally follows the allegations of the petition charging the defamatory sense in which the published words were used. It is alleged that the charge as pleaded and claimed by appellant was and is true, and that “said publication in this and all other respects was and is true.”

The answer admits the publication of the article. It admits that said article charged the appellant with doing the very thing the petition alleges it charged him with doing. It avers that the charge as so alleged “was and is true.” It in no manner seeks to avoid the charge as made by appellant. There is neither evasion, modification, nor qualification of the charge pleaded.

[2] We think it quite apparent that the appellee's plea of justification literally complied with the requirement that the plea “must be as broad as the charge and the very charge.”

II. Appellant's further contention is that the plea of justification, although in the identical language of the charge in the petition, is insufficient, in that the instances and manner in which it is claimed the appellant misconducted himself were not stated “with sufficient particularity to inform the plaintiff precisely of what were the facts to be tried.” Appellant's claim is that the object of the plea in justification is to give the plaintiff in the action “the means of knowing what are the matters alleged against him”; that “the particulars must be stated” and “that the plea of justification should state specific facts showing in what instance and in what manner plaintiff misconducted himself.”

[3] The general rule in actions of libel is that, where the defamatory charge is general in its nature, the plea must state specifically the acts or offenses of which plaintiff is guilty, or other facts showing the truth of the charge. A mere assertion that the charge is true is not sufficient. Donahoe v. Star Pub. Co., 3 Pennewill (Del.) 545, 53 Atl. 1028;Dowie v. Priddle, 216 Ill. 553, 75 N. E. 243, 3 Ann. Cas. 526;Amos v. Stockert, 47 W. Va. 109, 34 S. E. 821;Kansas City Star Co. v. Carlisle, 108 Fed. 344, 47 C. C. A. 384;McClintock v. Crick, 4 Iowa, 453. For example, if it is published of one that he is a murderer, or a thief, or a perjurer, or a swindler, it is not a good plea in justification to admit the publication and to aver that the charge is true. In such a case, in order for the plea to be a good plea in justification, it must contain averments of specific facts and instances, showing wherein it be true that the party is a murderer or a thief, or a perjurer, or a swindler, as the case may be. But where the charge in the libelous article is not in such general terms, the rule as to allegations of specific instances in a plea of justification does not prevail. A few citations will illustrate the holdings of the courts.

In Campbell v. Irwin, 146 Ind. 681, 45 N. E. 810, the court said:

“A distinction is made where the words impute an offense in a general way, and where they particularize the charge. Where the defamatory words as set out sufficiently describe the offense, then an admission by the defendant that he spoke the words as charged, and a general affirmation that they are true, has been held to be sufficient.”

In Stark v. Publishers; Geo. Knapp & Co., 160 Mo. 529, 61 S. W. 669, the court said:

“Where the defamatory matter complained of is in general terms--as that plaintiff is a murderer, thief, or other imputation which is a mere conclusion or inference of facts--the particular facts relied upon warranting the inference charged must be set forth specifically in a plea of justification, so that the plaintiff may be advised of the particular matter that he will be called upon to meet. But, when the defamatory matter charged is itself specific, it is sufficient to allege generally that the charge is true.”

In Nettles v. Somervell, 6 Tex. Civ. App. 627, 25 S. W. 658, the court said:

“The plea is generally broad enough if it merely state that the matter charged to be libelous is in fact true. When, however, the libel is of general character--as, that a person is a thief, a murderer, or a man unworthy of credit--the plea of justification must set up the facts which make such a character.”

In Kuhn v. Young, 78 Tex. 344, 14 S. W. 796, the article complained of as libelous was as follows:

“It has been reported that one of our butchers has been in the habit of purchasing diseased and disabled cattle which were injured in transportation and left at the stockyards at this place, and after dressing their carcasses offers the meat for sale to his customers at his market.”

There was a general averment in the answer that the charge as made was true. The court said:

“If the charge be but a conclusion from facts not stated, as that the person referred to is a thief or murderer, it is no doubt necessary for an answer alleging the truth of the charge to state the facts which make the party a thief or murderer, and to allege that these exist. Such, however, is not the indefinite nature of the charge made in the publication, and it was not error to admit the evidence complained of, under the answer which alleged the facts stated in the publication to be true.”

Many other similar cases might be cited.

If the published article in the instant case had charged the appellant with misconduct in general terms, a plea of justification, to be sufficient, must have alleged specific instances and specific facts which would establish the character attributed to appellant in the...