Salinger v. Des Moines Capital

• Decision Date: 17 January 1928
• Docket Number: No. 35976.,35976.
• Citation: 217 N.W. 555,206 Iowa 592
• Parties: SALINGER v. DES MOINES CAPITAL ET AL.
• Court: Iowa Supreme Court

206 Iowa 592

217 N.W. 555

SALINGER

v.DES MOINES CAPITAL ET AL.

No. 35976.

Supreme Court of Iowa.

Jan. 17, 1928.

Appeal from District Court, Polk County; J. C. Hume and O. S. Franklin, Judges.

Action for damages for libel. From judgment on a directed verdict for the defendants, the plaintiff appeals. Reversed and remanded.John McLennon, of Des Moines, and B. I. Salinger, of Carroll, for appellant.

Carr, Carr & Evans, of Des Moines, for appellees.

PER CURIAM.

The following opinion was written by the late Justice VERMILION, and is now adopted as the opinion of this court by a majority thereof:

The petition alleged, and the answer, in effect, admitted, the publication by the defendant of the article alleged by plaintiff to be libelous.

The material portion of the article is as follows:

“Justice Salinger Suggests Another Supreme Judge.

Judge B. I. Salinger, who holds a seat on the supreme bench, advocates increasing the number of supreme judges. The number is seven at the present time, and Judge Salinger wants to make it eight. He says there is too much work to do. We do not know how the lawyers feel in regard to it, but we would think that each judge could review 125 cases per year. If this could be done there are judges enough.

It is not generally known that when a litigant takes a case to the Supreme Court, he secures the judgment of one man only. He does not secure the opinion of the Supreme Court. He secures the opinion of one member of the Supreme Court. It seldom happens that a full bench considers a case. The papers in the case are handed out by the chief justice, and the subordinates take their separate jobs and go to work.

Therefore, Justice Salinger moves to create another Supreme Court by appointing one man who will take his bunch of cases and review them.

This system, while not generally known, is not popular with the laymen. The average litigant thinks the Supreme Court ought to be a Supreme Court, and that when a man gets through with the Supreme Court he ought to feel that he has had the judgment of seven men.”

The petition alleged that the article charged the plaintiff with violating his duties as a judge of the Supreme Court in that he and his fellow members decided causes therein single-handed, and that plaintiff was attempting to get an additional judge created so he might continue a system of avoiding the work he should do by having one more judge to decide a part of the cases submitted without consultation or co-operation with the others. The petition further alleged that the publication was malicious and the matter of the article was used in a defamatory sense, and that the defendant was inspired by express malice and personal hatred of the plaintiff.

At the close of plaintiff's evidence, the court, on motion of the defendant, directed a verdict for the defendant. The grounds of the motion, briefly stated, were: (1) That the article on its face and in the ordinary meaning of its language did not charge plaintiff with wrongdoing, moral delinquency or turpitude, or a crime, and was not defamatory or libelous; and (2) that plaintiff could not by innuendo pleaded make that libelous which was not libelous on its face.

In Hughes v. Samuels Bros., 179 Iowa, 1077, 159 N. W. 589, L. R. A. 1917F, 1088, we said:

“Peculiar damages are required to be alleged only when the publication, with its attending facts and circumstances, is such that damages do not naturally arise from the publication. If the publication, with its attending facts and circumstances, is such that the court can legally presume that injury followed as a natural and inevitable consequence of the act complained of, then there is no occasion, in order to maintain an action, that the plaintiff allege or prove peculiar damages. If the nature and character of the publication, with its attending facts and circumstances, are such as to injuriously affect or detract from the reputation and standing of another, and, as a natural and proximate result, tend to bring him into public contempt, hatred or ridicule, then it is libelous per se. If such injury can be said to be a natural proximate result or consequence of its publication, then the plaintiff is presumed to have been damaged, and there is no need of any allegation of peculiar damages. The extent of the damages is for the jury.”

See, also, Kluender v. Semann (Iowa) 212 N. W. 326.

In Burghardt v. Scioto Sign Co., 191 Iowa, 384, 179 N. W. 77, it is said:

“To constitute such libel [per se] it is not necessary that the language complained of should charge the plaintiff with crime or unchaste conduct. It is enough if it appear that the language used imputes to the plaintiff acts or qualities having a natural tendency to injure her in her business, trade, or profession, or to expose her to public contempt and condemnation.”

In Children v. Shinn, 168 Iowa, 544, 150 N. W. 868, we said:

“If the publication be held to have had reference to plaintiff at all, it referred to his conduct as an officer, and, as we think, tended to impeach his ability, skill or knowledge, and for the purpose of conveying the impression that he was unfit to be continued therein. Such publications are on their face actionable per se. Vial v. Larson, 132 Iowa, 208 ;Sanderson v. Caldwell, 45 N. Y. 398 ;Williams v. Davenport, 42 Minn. 393 [44 N. W. 311, 18 Am. St. Rep. 519];Morasse v. Brochu, 151 Mass. 567 [25 N. E. 74, 8 L. R. A. 524, 21 Am. St. Rep. 474];Spiering v. Andrae, 45 Wis. 330 ;Eviston v. Cramer, 47 Wis. 659 ;Van Tassel v. Capron, 1 Denio (N. Y.) 250 ;Gove v. Blethen, 21 Minn. 80 . The rule quite generally obtaining is that words written of one holding an office of profit, charging incapacity or want of integrity, or corruption in office, are libelous per se because they render his tenure precarious and are therefore a detriment from a pecuniary point of view. Alexander v. Jenkins, 1 Q. B. [1892] 800; Sharpe v. Larson, 67 Minn. 428 .”

See, also, Sheibley v. Ashton, 130 Iowa, 195, 106 N. W. 618, where it is said that to accuse one holding a public office of being guilty of willful misconduct in connection therewith is libelous and actionable per se.

In 36 Corpus Juris, 1180, it is said:

“Also, any language imputing want of integrity, a lack of due qualification or a dereliction of duty to an officer or employee is actionable per se, whether it is spoken or written.”

In Sheibley v. Ashton, supra, we said:

“* * * If the publication is not libelous per se upon its face it cannot be made so by innuendo. * * * The character of the publication as...