Williams v. Black

• Decision Date: 12 January 1910
• Citation: 24 S.D. 501,124 N.W. 728
• Parties: DAVID WILLIAMS, Plaintiff and respondent, v. CHARLES F. BLACK, Defendant and appellant.
• Court: South Dakota Supreme Court

24 S.D. 501, 124 N.W. 728 (1910)

DAVID WILLIAMS, Plaintiff and respondent v CHARLES F. BLACK, Defendant and appellant South Dakota Supreme Court Appeal from Circuit Court, Day County, SD Hon. J. H. McCoy, Judge Reversed Anderson & Waddel Attorneys for appellant. Sears & Potter Attorneys for respondent. Opinion filed Jan. 12, 1910

CORSON, J.

This is an action for libel, and it is alleged in the complaint:

"That on the 6th day of February, 1908, the defendant was the editor, publisher, and proprietor of the Waubay Clipper, a weekly newspaper published at Waubay in said Day county, S.D. That on the 6th day of February, 1908, the defendant maliciously composed and published concerning the plaintiff, in said newspaper, the following false and defamatory words, to wit: 'Will the farmers of Day county vote to retain in power a man who entered a combination to kill competition of the lumber business in Webster? That was the object of the Williams lumber trust of Webster, which the state government is now investigating. They have levied tribute on every board you buy. If there is a man who thinks of voting for the rotten machine of which Dave Williams is head engineer, let him reflect. Let him reflect. Do the citizens of Day county like the idea of the man who is one of the chief figures in the lumber trust being the political leader in Day county? That is what the evidence of Mr. Ebert in the lumber investigation conclusively showed. What a spectacle for gods and men.' That said words and statements were false, malicious, and defamatory; that the said defendant by the use and publication of said words and language used and published by the defendant as aforesaid, intended to charge and assert, and to be understood as charging and asserting, that this plaintiff had corruptly and unlawfully entered into a combination to fix prices of lumber sold at retail in the city of Webster, Day county, S. D.; and that a combination, agreement, or trust had been made, entered into or formed between other persons, copartnerships or corporations and this plaintiff as an individual and as an officer of the Williams Brothers Lumber Company, to prevent full and fair competition in the sale of lumber and building material in the city of Webster, Day county, S. D., and other places in which this plaintiff was concerned in the sale of lumber and building material at retail. That several hundred copies of said newspaper, so published by the defendant, were placed in the United States mail at Waubay, S. D., for distribution to the subscribers of said paper, and were distributed through the post office at Waubay and through various other post offices including the post office in the city of Webster, to a large number of persons, for the purpose of being read by them. That by means of said publication the plaintiff was injured in his reputation, character, and in his good name, credit, and standing, to his damage in the sum of ten thousand dollars ($10,000)."

To this complaint the defendant filed an answer, the material parts of which are as follows:

"Defendant admits that plaintiff is a resident of Day county, S. D.; admits that he is in the banking business and that he is president of the Farmers' & Merchants' National Bank, and that he is or was president of the Williams Brothers Lumber Company. Defendant further admits that on February 6, 1908, he was the publisher of the Waubay Clipper, published at Waubay, S. D., and further admits that on said 6th day of February there was published in said newspaper the articles set forth in paragraph 3 of plaintiff's complaint, but defendant alleges in reference thereto that said articles were not published together in said paper nor one immediately after the other, but that they appeared in separate and distinct portions of said paper. Defendant specifically denies that the said articles, or either of them, were false or malicious, but alleges in reference thereto that the same were, and each of them was, without malice and in substance and effect true. That within the years 1905, 1906, and 1907 in the city of Webster, S. D., a combination, agreement, or trust was formed or entered into and maintained by which prices on lumber sold at retail in the city were fixed and determined; that this combination or lumber trust was entered into for the purpose of killing competition in the lumber business in the city of Webster and vicinity; that the Williams Brothers Lumber Company was a party to this combination or trust, and that the plaintiff herein, as president of the Williams Brothers Lumber Company, participated and took part in the organization and maintenance of the said combination or trust; that he entered this combination for the purpose of fixing and determining prices at which lumber should be sold at retail in Webster and vicinity. Defendant admits that at the time of the publication of said articles, as aforesaid, the said Waubay Clipper had a circulation of several hundred copies in Day county. Defendant specifically denies that by reason of the publication of said articles plaintiff herein has been damaged in the sum of $10,000, or in any other sum whatsoever. Further answering the pretended cause of action set up in plaintiff's complaint, the defendant alleges that, prior to the publication of the articles therein complained of, and for years theretofore, the plaintiff had been and that he now is the known and acknowledged political leader or boss of that wing of the Republican Party known and designated as the "Stalwart" or "Machine" faction; that he was at the time of the publication of the articles referred to attempting to organize and control the said political faction of Webster and Day counties; that prior to the publication of said articles and in the month of December, 1907, there was instituted before August Hovland, a justice of the peace in and for Day county, S. D., by the Assistant Attorney General of the state of South Dakota, a proceeding under chapter 200 of the Laws of 1907 for the purpose of investigating the question as to whether or not certain lumber companies in the city of Webster, in said county, had entered into a combination and conspiracy for the purposes of fixing prices of lumber in said city and vicinity, that at said investigation various witnesses were examined and among them one W. F. Ebert, whose testimony defendant had, prior to the publication of said articles, heard and read, and defendant says that the knowledge of said testimony together with other knowledge he possessed caused and prompted him to publish said articles. That defendant in his capacity as a newspaper man, published said articles only and solely for the purpose of apprising his subscribers of the facts in relation to the formation, control, and termination of the politics of said city of Webster and Day county. That defendant, in his capacity as a newspaper man, has always believed and does believe that it is his duty to his subscribers and to the public in general to lay before them the truth upon question in which the public as such has an interest. He believes it his duty as a newspaper man to state the facts as they exist and to keep the people informed upon all public questions, even though the statements may be painful to the individual or individuals who are responsible for the acts concerning which such statements are made. Defendant states that he did not make the publications maliciously, or with the intention or for the purpose of injuring or harming plaintiff, but for the purpose of discharging what he believes to be his duty to the public. Defendant generally denies each and every allegation, matter, fact, and thing in said complaint contained, not hereinbefore specifically admitted or denied."

To this answer the plaintiff demurred on the ground: "That the facts stated in said answer are not sufficient to constitute a defense." The demurrer was sustained and, from the order sustaining the demurrer, the defendant has appealed, and it is assigned as error that the court erred in sustaining plaintiff's demurrer to the amended answer.

It is contended by the appellant that under the provisions of section 142 of the Code of Civil Procedure which provides: "The defendant may in his answer allege both the truth of the matter charged as defamatory and any mitigating circumstances, to reduce the amount of damages, and whether he prove justification or not, he may give in evidence the mitigating circumstances"; that the answer in this case must be held to be sufficient and the demurrer should have been overruled, as it contains sufficient allegations of the truth of the matter charged; a sufficient statement of facts to show that the communication was a privileged communication, and mitigating circumstances sufficient to reduce the damage; and that in any event, if the answer is insufficient as constituting a justification, or the communication published is not a privileged communication, yet as the answer contains allegations of fact in mitigation of damages it was error to sustain the demurrer.

It is contended by the respondent, in support of the decision of the trial court in sustaining the demurrer, that the allegations of the answer are insufficient to constitute a justification on the part of the defendant; that the facts alleged in the answer failed to show that it was a privileged communication, and that there are no sufficient facts alleged to constitute mitigating circumstances. It is somewhat difficult to determine the precise nature of the answer, but we may presume that the pleader intended to set up justification of the alleged libelous article; that he intended to plead that the article published was a privileged communication, and that he intended to plead facts constituting mitigating circumstances for the purpose of reducing the damages. If the answer was not...