Thompson v. Rake
| Decision Date | 20 November 1908 |
| Citation | 140 Iowa 232,118 N.W. 279 |
| Parties | THOMPSON v. RAKE. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Winnebago County; Clifford P. Smith, Judge.
Suit to recover damages for libel. There was a verdict and judgment for the plaintiff for $25, and the defendant appeals. Affirmed.Oliver Gordon and G. H. Belsheim, for appellant.
L. A. Jensen, for appellee.
The appellant instituted proceedings for the appointment of a guardian for the plaintiff, and verified a petition in said proceedings charging her with being an habitual drunkard. A temporary guardian of her property was thereupon appointed, but the case was soon thereafter dismissed by the plaintiff therein, and the temporary guardian was discharged. This suit is to recover damages for the publication of the charge that the plaintiff herein was at the time an habitual drunkard.
The trial court charged the jury that the publication was conditionally privileged, and that the burden of proof was upon the plaintiff to show actual malice in the publication. The appellant complains of an instruction which directed the jury that, if the defendant made and made public the statement that the plaintiff was an habitual drunkard without malice, he was not liable, even if he had no probable cause for believing it to be true; and then said: “The fact that he did so would tend to prove that he was actuated by malice, and that fact alone would warrant the conclusion, but would not necessarily require the conclusion, that he was actuated by malice when he made and made public the statement that the plaintiff was an habitual drunkard.” The appellant's exact contention is that the record fails to disclose any extrinsic malice, and that there is no intrinsic malice apparent in the publication itself. We have held in numerous cases that, while actual malice must be shown by the plaintiff, where the publication is conditionally privileged, such malice may be proven by the publication itself when considered in connection with the facts and circumstances prompting and surrounding the publication. Morse v. Printing Co., 124 Iowa, 707, 100 N. W. 867;Cherry v. Des Moines Leader, 114 Iowa, 298, 86 N. W. 323, 54 L. R. A. 855, 89 Am. St. Rep. 365;Nichols v. Eaton, 110 Iowa, 509, 81 N. W. 792, 47 L. R. A. 483, 80 Am. St. Rep. 319. In cases where it is sought to prove malice by the publication itself, the real question is: Did the defendant honestly believe what he said? And whether he did or not depends upon the facts and circumstances disclosed by the evidence. If the facts, as they appeared to the defendant's mind at the time of the publication, warranted the statement made by him, the jury would necessarily be bound to find that he had acted honestly. But, on the other hand, if he did not...
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