Appeal from Circuit Court, Codington County, SD
McCOY, J.
It appears from, the record: That the respondent, Charles Schull, plaintiff in the circuit court, was on the 4th day of June, 1908, the duly elected, qualified, and acting state's attorney for Codington county, and that at that time he was a candidate for renomination and election at the then approaching primary election to be held on June 9, 1908. That the appellant, Hopkins, defendant in the lower court, was a resident and elector of said county, and that he was instrumental and concerned in publishing and circulating among the voters of said county the following printed handbill or circular.
"The Ministers Take a Fall Out of Charles Schull.
"The following address is being sent out by letter mail this week by the ministers, to every voter in Codington county outside this city;
"'Watertown, S. Dak., June 4, 1908.
"To the Voters of Codington County;
"'Gentlemen: Since Charles Schull is giving a false interpretation to certain statements which we, the undersigned, endorsed, in our desire to be more than fair, to one with whom we are forced to differ radically, and since he has published the statement that--"there is no real issue at all between himself and the ministers," we feel called upon to give a definite statement regarding the matter. Had it not been for the use of the word "repeatedly" in the statement made in the Watertown Times of May 21st regarding our attempt to see Mr. Schull, no further word from us. on the matter would have been necessary. "'The attempt to see Mr. Schull was made as a matter of courtesy, to give him a chance if he would use it, knowing that his connection with the gambling element of this city was such that we could not expect him to prosecute them. When he remained behind a locked door, as he now admits, after we had made an appointment over the telephone to see him just the hour we called, we felt that further attempts would be useless. When the gambling houses were raided we did not let Mr. Schull know of it until the gamblers and their property were in the hands of the sheriff because we were afraid, judging by the attitude he had taken toward gambling up to that time, three months ago, that the raid would be useless if he were notified. His prosecution of the cases was made with the threat hanging over him that a failure to do so would constitute the ground for proceedings to remove him from office. We feel that his record, personally and officially, unfit him in every way for the high and responsible office of state's attorney.
"'We are not working in the interest of any faction or party but in the interest of law enforcement, by a man of character and ability, when we urge all who cast a ballot at the Republican primaries June 9th, who favor the suppression of open gambling, to lay aside all factional prejudice and cast a vote for Perry F. Loucks, who has pledged himself to do that work if elected.
"'We have every reason to believe that our attitude in this matter is shared by all the ministers of this city.'
"'If any doubt this, or about the genuineness of this statement in general, we will consider it a favor if you. will see us personally or make use of the telephone.
"'Rol L. Palmerton, Phone-Green 557,
"'Pastor First Baptist Church.
"'John P. Clyde, Phone-Red 144,
"'Pastor First Congregational Church."
Respondent thereafter instituted this suit to recover damages against appellant, alleging in his complaint that said publication, and the charge therein contained, was wholly false and without foundation in fact and was known to be so by appellant; that the same was published by appellant with express malice against respondent, intending thereby to injure him in his office and occupation as attorney. Appellant denied generally the allegations of said complaint, and also alleged that said publication was in fact true in substance and in fact, and that the said matter contained in the said publication was of public interest to the people of said community, and that the same was a privileged communication because of the candidacy of respondent for the office of state's attorney. The trial resulted in a verdict and judgment in favor of respondent. Motion for new trial being overruled, appellant has brought the cause before this court on appeal, assigning among other things the insufficiency of the evidence to sustain the verdict, in this: that there is no evidence to show that appellant had any actual malice against or towards respondent at the time of said publication. In this contention we are of the opinion that appellant is right. The publication in question is not libelous per se. It does not charge respondent with the commission of any criminal act. Upon its face and by its purport, it appears to be a privileged publication, and could only become libelous where the publication was shown to be made with actual malice. The burden was on respondent to show by competent evidence that appellant acted with actual malice. Malice under such circumstances is never inferred or presumed from the falsity of the charge alone. The publication being privileged, the presumption of good faith prevails until overcome by evidence showing actual malice.
The proposition here involved has heretofore been clearly and well considered by this court in some very similar cases. In the case of Myers v. Longstaff, 14 S.D. 98, 84 N.W. 233, the trial court instructed the jury as follows:
"The law provides that a privileged communication, so far as it relates to this case, is one made in a communication, without malice, to a person or persons interested therein, by one who is also interested, or by one who stands in such relations to the persons interested as to afford a reasonable ground for supposing the motive for the communication innocent. The defendant claims that, the plaintiff being at the time a candidate for office at the hands of the voters of the community, and he (the defendant) being a resident of the city of Huron, he was interested in the result, and that the residents of the city, to whom the publications were addressed and who read the paper published by him, were also interested in like manner; that he was not actuated or inspired by malice in publishing the articles referred to; and that they are therefore privileged under the rules which I have given you, and were therefore not libelous. And generally, upon the question of privileged communications, I charge you that the law is that the fitness and qualifications of a candidate for an elective office may be a subject of the freest scrutiny and investigation, either by the proprietor of a newspaper or by a voter or person having an interest in the matter, and that much latitude must be allowed in the publication for the information of voters of charges affecting the fitness of a...
