Shaw Cleaners & Dyers, Inc. v. Des Moines Dress Club

• Decision Date: 15 November 1932
• Docket Number: No. 41467.,41467.
• Citation: 215 Iowa 1130,245 N.W. 231
• Court: Iowa Supreme Court
• Parties: SHAW CLEANERS & DYERS, INC., v. DES MOINES DRESS CLUB ET AL.

215 Iowa 1130

245 N.W. 231

SHAW CLEANERS & DYERS, INC.,

v.DES MOINES DRESS CLUB ET AL.

No. 41467.

Supreme Court of Iowa.

Nov. 15, 1932.

Appeal from District Court, Polk County; F. S. Shankland, Judge.

Civil action for damages for libel. To the petition, as amended, the defendants filed a demurrer, which was by the court sustained. The plaintiff refused to further plead and the petition was dismissed and judgment rendered against the plaintiff for costs. Plaintiff appeals.

Affirmed.

Fred F. Keithley, of Des Moines, for appellant.

John Connolly, Jr., and Irvin Schlesinger, both of Des Moines, for appellees Des Moines Dress Club, Hyman E. Rubenstein, and S. Schlesinger.

Fred A. Little, of Des Moines, for appellee Register & Tribune Co.

WAGNER, J.

The plaintiff in the petition alleges:

That it is a corporation organized and existing under the laws of Iowa, with its principal place of business in the city of Des Moines; that it is engaged in the dry cleaning business; that the defendant Des Moines Dress Club is a copartnership, consisting of the defendants Rubenstein and Schlesinger; that said firm is also engaged in the dry cleaning business in the City of Des Moines; that the defendant the Register & Tribune Company is a corporation organized under the laws of the state of Iowa, with its principal place of business in the city of Des Moines, and owns and publishes every Sunday morning the newspaper known as the “Des Moines Sunday Register,” and every week day the newspaper known as the “Des Moines Tribune-Capital”; that “on Sunday, the 6th day of September, A. D. 1931, at the instance of all of the defendants, with malice toward the plaintiff, there was published in the ‘Sunday Register’ of that date, an advertisement, printed in large bold type, reading as follows:

“ ‘Garments Cleaned at Half-Price are only Half Cleaned

“When you buy cleaning for half price you get just what you pay for * * * halfway cleaning and pressing. Des Moines Dress Club prices are the lowest at which first quality workmanship can be produced. * * * The lowest at which a modern plant can be maintained * * * the lowest at which skilled experts can be hired. Don't be misled by half-price cleaning.

“Out-of-town work especially solicited.

“We pay return charges.

“Dial 4-4141

“Des Moines Dress Club.

“The careful Cleaners & Dyers

+------------------------------+
                ¦“801 Grand Ave. ¦Dial 4-4141.'¦
                +------------------------------+
                

“At the time of said publication of said advertisement over the name Des Moines Dress Club, the plaintiff was and, for several weeks prior thereto, the plaintiff had been advertising in said newspaper and otherwise, a cleaning sale, using the phrases, ‘half price for the 2nd. garment’ and ‘1/2 price for Second Garment’, and at said time no other person or firm engaged in the cleaning business in the city of Des Moines and vicinity was advertising cleaning at half price, all of which was then well known to and by all of the defendants and the general public.

“Said advertisement over the name, Des Moines Dress Club, thus maliciously published by the defendants, was a libel of the plaintiff in that the matter printed therein referred to the plaintiff and to the business done by the plaintiff, in the false and defamatory sense that garments cleaned by the plaintiff at half price were only half cleaned, that the cleaning and pressing done by the plaintiff was only half done, and that the plaintiff did not maintain a modern cleaning plant or employ skilled experts and that the plaintiff was misleading its customers and patrons and said advertisement was so construed by the readers of said newspaper. Said advertisement so published was a malicious defamation of the plaintiff and of the plaintiff's business, tending to provoke the plaintiff to wrath and to expose the plaintiff to public hatred, contempt and ridicule, and to deprive the plaintiff of the benefits of public confidence, and to injure the plaintiff in its reputation, good will, business and trade.

“The publication by the defendants of said advertisement over the name Des Moines Dress Club was done with malice toward the plaintiff and was intended to and did injure the plaintiff and the reputation, good will, business and trade of the plaintiff. Because of said injuries, the plaintiff has suffered actual damages,” etc.

In a second count of the petition, the plaintiff sets out the same allegations, except that it avers therein that the quoted advertisement hereinbefore referred to was published in the Des Moines Tribune Capital on September 9, 1931. In an amendment to both counts of the petition, the plaintiff alleges as follows: “Because of said publication, the patronage of the plaintiff through its several stores and mail orders was thereupon immediately decreased to the extent of at least $500.00 per week with a consequent loss of profits; and, because thereof, said decrease of patronage and profits has continued and will continue permanently. Because of the nature of the services rendered by the plaintiff to its patrons and customers, the great number of patrons and customers served and the small amount received from each patron or customer for the services rendered by the plaintiff, it is impossible for the plaintiff to state the names of the individual patrons and customers lost and the respective amount of business lost from each patron or customer on account of said publication, but the plaintiff has thereby suffered a general loss of business and profits to said extent and said loss is continuing and will continue permanently. Because of said loss of business and profits, the plaintiff has suffered special damages to its business in the sum of $25,000.00.”

To the petition as amended, the defendantfiled the following demurrer: “(1) The petition on its face fails to state a cause of action in that the publication complained of is not libelous, and nothing is pleaded in the petition which would justify recovery. (2) The petition fails to state a cause of action for the reason that the publication complained of is not a defamation of the plaintiff in the sense the term ‘defamation’ is used in the statute. (3) The petition fails to state a cause of action in that there is nothing in the publication complained of tending to provoke the plaintiff to wrath, or expose it to public hatred, contempt, or ridicule, or to deprive it of the benefits of public confidence and social intercourse. (4) The petition fails to state a cause of action in that there is nothing contained in the publication itself, or in the petition which would make the publication a libel upon the plaintiff.”

This demurrer was sustained by the court. The plaintiff refused to further plead, whereupon plaintiff's petition was dismissed and judgment rendered against it for costs.

[1] The first question for our determination is: As to the plaintiff, are the allegations of the petition as amended libelous per se? If this question should be answered in the affirmative, then the court was in error in sustaining the demurrer. Libel is defined by our statutory law as follows: “A libel 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 and social intercourse.” See section 13256, Code 1931.

This statutory definition is applicable to civil actions for recovery of damages for libel. See Stewart v. Pierce, 93 Iowa, 136, 61 N. W. 388;Gundram v. Daily News Publishing Company, 175 Iowa, 60, 156 N. W. 840;Fey v. King, 194 Iowa, 835, 190 N. W. 519;Sheibley v. Ashton, 130 Iowa, 195, 106 N. W. 618. In Stewart v. Pierce (Stewart v. Young), 93 Iowa, 136, 61 N. W. 388, 389, civil cases for damages, the court, after setting out the aforesaid definition of libel said: “With this plain definition before us we need not refer to any of the many cases defining libel, but proceed to inquire whether this writing brings these cases within the terms of the statute.”

In Sheibley v. Ashton, 130 Iowa, 195, 106 N. W. 618, 619, this court declared: “This definition [the statutory definition] has been held applicable to civil actions to recover damages as for a libel. Stewart v. Pierce, 93 Iowa, 136, 61 N. W. 388. And every publication which comes within the statutory definition of libel is declared to be actionable per se; that is, upon proof of the publication, the law will presume the falsity of the matter charged, that the publication was with malice, and that some damage followed.”

[2][3][4] It will be observed that the language of the publication set out in plaintiff's petition is unambiguous. Under such circumstances, the question whether the publication relied upon is libelous per se is a question for the court. See Berger v. Freeman Tribune Publishing Co., 132 Iowa, 290, 109 N. W. 784;Wallace v. Homestead Company, 117 Iowa, 348, 90 N. W. 835;Gundram v. Daily News Publishing Company, 175 Iowa, 60, 156 N. W. 840;Sheibley v. Ashton, 130 Iowa, 195, 106 N. W. 618. In Gundram v. Daily News Publishing Company, 175 Iowa, 60, 156 N. W. 840, 841, we said: “Whether a publication relied upon is libelous within this statutory definition, and is therefore libelous per se, is always a question for the court.”

In Berger v. Freeman Tribune Publishing Co., 132 Iowa, 290, 109 N. W. 784, 786, the court said: “In another instruction the court submitted the question as to the libelous character of the article to the jury for its determination as to whether or not the language was libelous per se. The rule about this matter is well settled. It is this: Where the defamatory matter is unambiguous, the question of its meaning and character is for the court.”

In determining whether language is libelous per se, it must be viewed stripped of any pleaded innuendo. The meaning of the phrase “per se” is “taken alone, in itself, by itself.”...