Vojak v. Jensen

Decision Date05 September 1968
Docket NumberNo. 52922,52922
Citation161 N.W.2d 100
PartiesCy F. VOJAK and Leo D. Campbell, d/b/a United Roofing Company, Appellants, v. M. E. JENSEN, Dighton H. Smith and Grant Voorhees, d/b/a Architects Associated, Appellees.
CourtIowa Supreme Court

Mitchell, Mitchell & Murray, Fort Dodge, for appellants.

Ahlers, Cooney, Dorweiler, Allbee & Haynie, Des Moines, for appellees.

LeGRAND, Justice.

This is the aftermath of a 10-year feud between members of a partnership doing business as United Roofing Company (hereafter called plaintiff) and members of a partnership doing business as Architects Associated (hereafter called defendant) In 1963, some six years after the Manson incident, the parties found themselves cast in the same roles on another school construction contract, this time at Humboldt, Iowa. When defendant learned plaintiff was to do the roofing work there, one of its partners wrote two letters which are the subject matter of this suit. One letter was to plaintiff, setting out defendant's refusal to approve plaintiff as a subcontractor on the Humboldt job. The same day a second letter was written to Sande Construction Company, general contractor on the Humboldt job, stating plaintiff would not be approved as a subcontractor. A copy of the letter to plaintiff was enclosed with the letter to Sande Construction Co. A copy of each letter was sent to Clyde Mease, Superintendent of Humboldt Community School District.

concerning a school construction job at Manson, Iowa, in 1957, on which defendant was the architect and plaintiff the roofing subcontractor. Prior thereto plaintiff and defendant had for some years enjoyed a pleasant and mutually profitable business relationship. On the Manson building the roof installed by plaintiff was unsatisfactory and defective, although the reasons therefor are to this day bitterly disputed.

We set out the controversial letters in full:

'September 5, 1963

United Roofing Company

P.O. Box 956

Fort Dodge, Iowa

ATTENTION: Leo Campbell

Re: Humboldt High School

M. E. Jensen writing--

'Leo, as a result of yours and Hugo's telephone conversation of yesterday, Smitty, Hugo and myself have visited at some length regarding this matter. In view of the experience which we have had at Manson, I am sure you can understand our not being able to give you approval as the roofing sub-contractor on this project. This is harsh action Leo, but we feel that recent experience demands it.

'In order to prevent future embarrassing situations such as we have here at Humboldt, we are asking Leo, that you in the future refrain from bidding work out of our office. When you can prove to our satisfaction that we may again consider you as a reliable roofing contractor, we shall give all consideration to your again bidding on our work. Your cooperation in this regard with us will be appreciated and will be of benefit to the construction industry and our clients.

Smith--Voorhees--Jensen

ARCHITECTS ASSOCIATED

/s/ M. E. Jensen

M. E. Jensen, A.I.A.

cc: Clyde Mease, Supt. Humboldt Community School District

Sande Construction Company'

(Handwritten postscript) 'Leo--It will not be necessary that you come into our office Monday as discussed. Will be happy however to visit with you any time we might get together.'

'September 5, 1963

Sande Construction Company

P.O. Box 368

Humboldt, Iowa

Attention: Gunnie Sande

Re: Humboldt High School Roofing Contract

M. E. Jensen writing--

'Gunnie, the attached letter to United Roofing Company I believe you will find self-explanatory. Fortunately we have not had too many instances wherein we were forced to take such action as we have here. However, when it is necessary we are prepared to do so and in the interests of General Contractors as well as our clients. We 'We are fully aware that Leo has performed considerable work in the Humboldt area and for the Humboldt School District and that his services have apparently been highly satisfactory. We are also aware that you yourself apparently have some confidence in his organization. We are reluctant to disturb these apparent good relationships but nevertheless cannot disregard our own experience.

do not feel that we can afford to run the risk of involving the Humboldt School District and yourself into a situation such as has developed at Manson. He regret the necessity for having to take this action, but can see no alternative.

'We would consider going along with United Roofing Company on this project if you would give us a letter stating that your firm would assume complete responsibility for this work. Upon receipt of such a letter, Gunnie, we will consider the matter closed and anticipate that you would give the Humboldt School District complete protection as to the satisfactory fulfillment of the roofing contract. We trust that some such arrangement can be worked out to the satisfaction and protection of all parties, we, however, cannot ignore our responsibilities in the matter.

Smith--Voorhees--Jensen

ARCHITECTS ASSOCIATED

/s/ M. E. Jensen

M. E. Jensen, A.I.A.

cc: Clyde Mease'

Shortly thereafter Sande Construction Company cancelled its roofing contract with plaintiff for the Humboldt School project. Plaintiff then brought this action against defendant, alleging the letters were libelous and asking both actual and exemplary damages.

Following a jury trial at which plaintiff was awarded $60,000.00 actual damages and $15,000.00 punitive damages, defendant's motion for a new trial was sustained on these three of the numerous grounds asserted therein: (1) That the verdict was excessive and was influenced by passion and prejudice; (2) That the verdict failed to administer substantial justice; and (3) That the verdict failed to respond to the real merits of the controversy.

Plaintiff now appeals from the order granting a new trial. Defendant cross-appeals, charging various errors in the instructions and in the trial court's rulings on the admission and exclusion of evidence. Before discussing the merits of either appeal, we state briefly some general principles concerning the law of libel.

I. Libel is defined as a malicious publication, expressed either in printing or writing, or by signs and pictures, tending to injure the reputation of another or to expose him to public hatred, contempt, or ridicule or to injure him in the maintenance of his business. 53 C.J.S. Libel and Slander § 1, p. 32; 33 Am.Jur. Libel and Slander, section 3, page 38; Plendl v. Beuttler, 253 Iowa 259, 262, 111 N.W.2d 669, 671; Morse v. Times Republican Printing Company, 124 Iowa 707, 712, 100 N.W. 867, 869. See also statutory definition of criminal libel, section 737.1, Code of Iowa, which on occasion has been held applicable to civil actions for damages. Plendl v. Beuttler, supra, and citations.

Certain statements are held to be libelous per se, which means they are actionable in and of themselves without proof of malice, falsity or damage. In actions based on language not libelous per se, all of these elements must be proved by plaintiff before recovery can be had, but when a statement is libelous per se they are presumed from the nature of the language used. Among statements which are libelous per se are those which charge business incompetence or lack of skill in the trade, occupation, profession or office by which one earns his living. 53 C.J.S. Libel and Slander § 1, p. 32; 33 Am.Jur., Libel and Slander, section 3, page 38; Morse v. Times Republican Printing Company, 124 Iowa 707, 713, 100 N.W. 867, 869; Vial v Larson, 132 Iowa 208, 209, 109 N.W. 1007; Children v. Shinn, 168 Iowa 531, 544, 150 N.W. 864, 868; Burghardt v. Scioto Sign Company, 191 Iowa 384, 392, 179 N.W. 77, 80; Plendl v. Beuttler, supra.

In the case now before us plaintiff asserts the letters were libelous per se because they charged business incompetence and lack of skill.

Defendant meets this accusation by saying they were written under a qualified privilege. Sometimes one is justified in communicating to others, without liability, defamatory information which would ordinarily entitle the defamed person to maintain an action for damages. The law recognizes certain situations may arise in which a person, in order to protect his own interests or the interests of others, must make statements about another which are indeed libelous. When this happens, the statement is said to be privileged, which simply means no liability attaches to its publication.

A privilege may be either absolute, in which event there can be no liability under any circumstances, even if actual malice is shown, or it may be conditional or qualified, which provides immunity in some, but not all, instances. Our discussion is limited to qualified privilege.

Qualified privilege is defined in 33 Am.Jur., Libel and Slander, section 126, page 124, this way:

'A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable and although the duty is not a legal one. * * * The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The (qualified) privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within narrow limits.

'In the absence of malice an utterance may be qualifiedly privileged, even though it is not true. * * * But the mere color of lawful occasion and pretense of justifiable end cannot shield from liability a person who publishes and circulates defamatory matter. Hence a publication loses its character as privileged, and is actionable, on...

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