Tawney v. Simonson, Whitcomb & Hurley Co.

• Decision Date: 31 December 1909
• Docket Number: Nos. 16,298 - (104).,s. 16,298 - (104).
• Citation: 109 Minn. 341
• Parties: JAMES R. TAWNEY v. SIMONSON, WHITCOMB & HURLEY COMPANY.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

109 Minn. 341

JAMES R. TAWNEY v. SIMONSON, WHITCOMB & HURLEY COMPANY.¹

Nos. 16,298 - (104).

Supreme Court of Minnesota.

December 31, 1909.

Action in the district court for Freeborn county to recover $10,000

damages for libel published in The Evening Tribune, a newspaper published in the city of Albert Lea, and generally circulated within that city and within the First congressional district of Minnesota, from which district plaintiff was elected member of the national house of representatives.

So far as 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 this plaintiff as such 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, who in his recent shame seems to have the 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 the 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 Hermann, 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 reputations. 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 newspaper 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 wilfully 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 employee or officer in the secret service division of the treasury department. Said defendant believed that the article which it 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 and 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 moved for judgment in its favor on the pleadings [on the grounds that it appeared upon the face of the pleadings that (1) the alleged libel was true; (2) plaintiff had no cause of action against the defendant; (3) the portion of the alleged libel which charges plaintiff with having misquoted a letter from the secretary of the treasury was true, as appeared from a comparison of plaintiff's speech with the letter itself, a copy of which was attached to the answer and admitted by the reply; (4) the portion of the alleged libel in which plaintiff was charged with making a misstatement with respect to the investigation of the bureau of printing was true, it appearing that Moran, the person referred to, was in fact an employee of the secret service division of the treasury department and such employee would ordinarily be called a secret service man; (5) the portion of the alleged libel in which plaintiff was charged with a misstatement of facts was true; (6) the alleged libel did not charge any crime or criminal offense; (7) the alleged libel was a fair comment and criticism upon the acts of a public official; (8) it appeared from the pleadings that prior to the publication similar statements about the plaintiff had been made by Theodore Roosevelt, then President of the United States, in an official message, that the matter was of public interest and the alleged libel was fair and temperate in tone and defendant had a right to express its opinion about the official conduct of plaintiff and not be subject to an action for libel, and (9) the alleged libel was simply a criticism which might reasonably be applied to a public official within the rule of Herringer v. Ingberg, 91 Minn. 71.]

The motion for judgment was granted, Kingsley, J., and from the judgment entered pursuant to the order for judgment, plaintiff appealed. Reversed.

Dunn & Carlson, for appellant.

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

JAGGARD, J. (after stating the facts not within [] 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 Byram v. Aiken, 65 Minn. 87, 67 N. W. 807: "Written publications calculated to expose...