Tawney v. Simonson, Whitcomb & Hurley Co.

• Decision Date: 31 December 1909
• Citation: 124 N.W. 229,109 Minn. 341
• Parties: TAWNEY v. SIMONSON, WHITCOMB & HURLEY CO.
• Court: Minnesota Supreme Court

109 Minn. 341

124 N.W. 229

TAWNEY

v.SIMONSON, WHITCOMB & HURLEY CO.

Supreme Court of Minnesota.

Dec. 31, 1909.

Appeal from District Court, Freeborn County; Nathan Kingsley, Judge.

Action by James A. Tawney against the Simonson, Whitcomb & Hurley Company. From a judgment for defendant on the pleadings, plaintiff appeals. Reversed.

(Syllabus by the Court.)

Dunn & Carlson, for appellant.

Morgan & Meighan and A. U. Mayland, for respondent.

So far as is material here, the history of this case is as follows:

The complaint of plaintiff and appellant set forth that the defendant and respondent, publishers of a newspaper in general circulation, published ‘of and concerning plaintiff as * * * member of Congress, and of and concerning his official acts, duties, and conduct as such member of Congress, these words:

“Who are These Men?

“In the controversy between President Roosevelt and Congress we often heard how the East was uncertain in its indorsement of the President, but there was no question about the sentiment in the West. With this in mind we give our readers a sample of the expression of Eastern papers. The Philadelphia North American, than which there is no more staid and careful chronicler of public events, says:

“‘Who are the spokesmen now set up to thunder against Roosevelt on behalf of this Congress whose dignity is injured? Tillman, sympathy and not the censure of all his colleagues; Foraker, whose Standard Oil smeared record has utterly discredited him everywhere except in Congress; Tawney, proved a falsifier of public documents by his misquotation upon the floor of Congress of a letter from the Secretary of the Treasury and his misstatement of facts with respect to an investigation and exposure in the Bureau of Engraving and Printing.

“‘It was the secret service and not the Senate that took action that sent Burton, of Kansas, to a convict's cell.

“‘The ‘land office ring’ was common gossip in Washington. But Congress took no steps to cleanse itself of the presence of Mitchell and Herman, exposed and convicted of felony by the secret service which the present Congress has crippled.

“‘The Senate saw nothing wrong in Senator Dietrich's lease of his private property to the government, though a grand jury did. The House considers it entirely proper for Fordney, of Michigan, to frame tariff schedules governing the profits of his private business.

“‘Archbold's letters to Bailey do not affect the dignity of Congress any more than the corporate connections of Aldrich, Platt, Depew, Gallinger and a score of others equally notorious.

“‘If the American people felt the faintest hope that Congress could be counted upon to check or to expel the ‘unfit and dishonest’ instead of elevating and honoring them, there would be no lack of the respect which the people would be only too glad to give.

“‘But the object lessons have been too many. The patience of the people is exhausted. They approve what Roosevelt has done and they commend to Congress the words of Townsend of Michigan, when he declared that if the members were seeking to preserve their reputations before the country it could not be accomplished by the resolution which he opposed.

““The honor rests with us. No man,' he said, ‘can blacken our reputation. It lies wholly and entirely with us to make the record that will command respect among the people of the United States.””

By this article, the complaint alleged, the defendant charged at the time and meant, and was understood by the readers of the newspapers to charge at the time and to mean, that this plaintiff, while such member of Congress, in the course of the performance of his duties as such member, had been proven and was a falsifier of public documents; that as such member of Congress, and in the performance of his duties as such, this plaintiff had been guilty of willfully and deliberately misquoting upon the floor of Congress a letter from the Secretary of the Treasury, and which acts and conduct amounted to and were a falsification of public documents, and that this plaintiff was guilty of, and had been proven guilty of, gross misconduct, deception, and fraud in his public office of member of Congress, and in the performance of his duties as such. The complaint contained also an allegation that the acts and conduct of said defendant in so publishing and circulating said false and libelous newspaper were actuated by malice and a desire for revenge, in bad faith, with full notice and knowledge that the facts therein contained were false and untrue.

To this complaint defendant filed an answer, whereby it admitted the publication in one of its regular daily editions of the matter previously set forth, and that this plaintiff was referred to therein. The answer further set forth: Plaintiff, as chairman of the committee of appropriations of the national House of Representatives, received a letter from the Secretary of the Treasury of the United States, to which he referred in a speech made in said House in the course of debate and discussion on said measure then pending in these words, namely: ‘Why, I have in my possession a letter from the Secretary of the Treasury, received a few days ago, in which he has pointed out to me the practice of the Treasury Department, whereby he himself admits that the provisions under which this appropriation is made have been violated year after year for a number of years in his own department.’ Defendant in good faith believed and believes that said statements of plaintiff misquoted, misstated, and misrepresented the contents and meaning of said letter, a copy of which was attached. In the course of said debate concerning a certain ink contract fraud and investigation in the Bureau of Engraving and Printing, plaintiff used the following language: ‘That work was not done by the Secret Service men. That work was done by a clerk in the office, who has since been promoted in recognition and as a reward for that service.’ In truth and in fact said work was done by one of the Secret Service men named Moran, employed in the Secret Service division of said Treasury Department of the United States of America, all of which was well known to said plaintiff when he spoke said words. Defendant in good faith believed that thereby plaintiff intended to charge that the investigation was not done by any Secret Service men, nor by any employé or officer in the Secret Service division of the Treasury Department. Said defendant believed that the article which he had published was a ‘fair, just, and proper comment upon the acts and conduct of a public officer and public servant, the plaintiff herein, as well as upon the other public officers, servants, and representatives therein mentioned and referred to; that the subject-matter in the contents of the article were of great public interest and importance in defendant's community; and that the defendant believed, felt, and knew that the article was circulated for the benefit of the public as matter of news.’ It was further alleged that the statement, ‘Tawney proved a falsifier of public documents by his misquotation upon the floor of Congress of a letter from the Secretary of the Treasury and his misstatement of facts with respect to an investigation and exposure in the Bureau of Engraving and Printing,’ was true as therein stated.

The reply put in issue these defenses of truth and fair comment or privilege. The defendant thereupon moved for judgment on the pleadings. This the trial court granted. From the judgment rendered in accordance therewith, this appeal was taken.

JAGGARD, J. (after stating the facts as above).

1. The initial question is whether the trial court erred in holding that as a matter of law the words used were not libelous per se. A number of relevant principles are beyond controversy. Published words may be defamatory per se; that is, defamatory without proof of special damage. As to what constitutes such words, Mr. Justice Mitchell said, in Bryam v. Aiken, 65 Minn. 87, 67 N. W. 807: ‘Written publications calculated to expose one to public contempt or ridicule, and thus induce an ill opinion of him, and impair him in the good opinion and respect of others, are libelous, although they involve no imputation of crime, and are actionable without any allegation of special damages.’ ‘It is enough,’ said Weaver, J., in Morse v. Times P. Co., 124 Iowa, 707, 715, 100 N. W. 867, 870, ‘if the printed article be such that its publication naturally tends to brand him with dishonesty or other conduct or characteristic deserving of contempt or reprobation of right-minded men.’ More specifically, words charging misconduct in office, want of official integrity or fidelity to public trust, and words which tend to deprive an official of his office, are libelous per se. State v. Norton, 123 N. W. 59;Larrabee v. Tribune Co., 36 Minn. 141, 30 N. W. 462;Sharpe v. Larson, 67 Minn. 428, 70 N. W. 1, 554;Martin v. Paine, 69 Minn. 482, at page 485, 72 N. W. 450. And see sections 4269, 4916, 4917, Rev. Laws 1905. In the application of this rule it makes no difference what the nature of the employment is, provided it is lawful, or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfillment of what the party, in virtue of his employment or office, has undertaken. 2 Current Law, 718, and authorities referred to.

In determining whether the specified matter is libelous per se, two rules of construction are conspicuously applicable: (1) That construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was utterred. (2) The published matter alleged to be libelous must be construed as a whole.

Defendant divides its argument that the matter was not libelous per se into two parts: Its first argument is based on this particular sentence: ‘Tawney proved a...