Jones v. Register & Leader Co.

177 Iowa 144

• Court: Supreme Court of Iowa
• Decided: June 29, 1916
• Status: Published

Opinions

Salinger, J.

I. A demurrer, which was sustained, admits that defendant falsely published concerning plaintiff, who is mayor of Perry, the matter following:

l. libel and charging vfoordinance. That he was “adjudged second best” in a controversy between him and the mayor of Ames; that plaintiff must pay $15 to the city of Ames because ‘ ‘ an impromptu court on the lawn of Mayor Sheldon’s home” convicted him of exceeding the Ames speed limit with his automobile; that plaintiff claimed he had acted within the law; that from the fine assessed, notwithstanding, he appealed to the district court; that there a default was entered against him; that, later, the default was set aside, but on condition that plaintiff pay the costs and a fine of $15; that plaintiff was “involved in a peculiar suit” which involved the halting of a house mover by act of court, in that some work being performed for plaintiff was stopped by a temporary injunction, on the charge that an ordinance passed during the administration of plaintiff as mayor was being violated; that, as said ordinance was passed “with the endorsement” of plaintiff, “the legal action which will follow will be watched with interest; ’ ’ that plaintiff had engaged a house mover to move a building to the Jones Addition to Perry; that the job required passing over several paved streets with a traction engine which said ordinance put “under the ban;” that the moving was stopped by one of the citizens who had recently paid for paving in front of his residence; and that “the situation at this time presents the mayor as defendant in an action in which he should be plaintiff.”

By sustaining the demurrer, the court held that the publication is “not itself libelous;” that nothing is pleaded which “would make the publication a libel upon the plaintiff” and that nothing is pleaded “which would justify a recovery.”

II. We are constrained to differ from this holding. True, no statute crime is charged in the publication. But that is not essential to constitute a libel. Call v. Larabee, 60 Iowa, at 214, 215; State v. Keenan, 111 Iowa, at 291; Morse v. Times-Republican Printing Co., 124 Iowa, at 715, 716; State v. Cooper, 138 Iowa, at 520. The statute, Section 5086 of the Code of 1897, makes any printing a libel if it tends to provoke the one of whom it is published to wrath, or tends to expose him to public hatred or ridicule, or tends to deprive him of the .benefits of public confidence or social intercourse. The cases cited establish that any publication which has a tendency to accomplish either or all of the things which the statute includes in its definition of libel is libelous per se, and that damage is presumed, wherefore no special damages need be pleaded. In Call v. Larabee, 60 Iowa, at 215, we say that, because libel is a public offense, “all publications which the law regards as libelous are actionable, per se” — in effect, that the commission of a public offense of itself makes a right of action for the one who suffers therefrom. And the definition found in this criminal statute is applicable in civil actions. Morse v. Times-Republican Printing Co., 124 Iowa, at 712, 713.

2. libel and SbeispS'se: wrath. The publication complained of is in substance a false charge that an employe of plaintiff violated an ordinance which was passed with his approval as mayor, and that he who should be behind a prosecution for the offense was defendant in an injunction against the continuance of the offense; further, that plaintiff had unsuccessfully resisted a prosecution for violating the speed limit of a town of which he was not mayor — and all of it is so worded as to show a striving after humorous effects. It may be conceded that it has no tendency to expose plaintiff to public hatred or contempt nor to deprive him of the benefits of public .confidence or social intercourse. But it does have a natural tendency to provoke one who knows it to be false to wrath, and a tendency to make him ridiculous. If so, it is a libel, actionable per se. Morse v. Printing Co., 124 Iowa, at 713, 715, 716. It follows that something was recoverable, and that the demurrer should not have been sustained.

3. Libel and slanper : libels per se: pleading: erroneously sustaining demurrer: when harmless error: damages. III. But the point is made that the ruling is harmless, within the unquestioned rule that we will not reverse for a denial of nominal damages or determine an appeal in which there is really nothing involved beyond settling costs. Moller v. Gottsch, 107 Iowa, at 238. True, the cases cited in brief of appellant do not deal with libel eases. But does not the very case law which makes every libel actionable per se make this rule of appellate review applicable to every suit for libel ? As every libel is actionable per se, and as we must note judicially that every libel is not equally injurious, it must be held that, while the law permits a recovery in every case of libel, it sets no limits at either end of the recovery. Notwithstanding that the plaintiff is entitled to something, it is apparent that there may be cases in which the damages allowed either are or should be nominal. As said, the very fact that damages are due for any libel proves that there may be a libel which causes no substantial injury. We say in Call v. Larabee, 60 Iowa, at 214, 215, that “the law presumes that damages do result from the libel, and, in the absence of proof thereof, it will award at least a nominal sum.” In Dorn v. Cooper, 139 Iowa, at 749, we declare that “it is no doubt true that nominal damages only may be awarded in libel suits. ” It is true, we add that, “as a general rule, the law presumes actual damages from the publication of an article libelous per se.” It will be noted that this either cancels the concession that there may be a merely nominal recovery, or else it is a statement made on the erroneous assumption that some libels are, while others are not, actionable per se. Be that as it may, the statement does run counter to what is said as part of it, and with the holding of Call v. Larabee, supra. Moreover, it is dictum: it is used in reversing for the giving of an instruction. That instruction included nominal damages among what is permissible recovery. But the reversal is not for that. The instruction says that nominal damages are those given where a wrong has been committed and no actual injury or damage has resulted, and then proceeds that, if the jury finds that the article in question caused no injury to plaintiff, then to award only nominal damages, and that, “in such cases, some small sum, as one cent or ten cents, is awarded as damages in order to carry the costs against the person committing the wrong.” We hold that the jury has nothing to do with the matter of costs, and it is better practice not to refer to it in the instructions, but that, “if it is referred to, the jury should not be misled regarding the matter.” We say:

4 4 The instruction here given, in view of the offer made to confess judgment, was positively misleading, in that an award of nominal damages stated would not carry costs. A jury, in such cases, is prone to return a compromise verdict, and it is well .known that they frequently return their verdicts with an eye to the adjustment of the costs. It is common knowledge of the profession that in such eases juries, more frequently than otherwise, consider the matter of costs in making their awards. "With this fact in mind, it is better to say nothing about the costs; but if reference is made to the matter, it should not be so stated as to mislead the jury. Under the English practice it was the custom of judges not to refer to the matter of costs, even at the jury’s request. We are constrained to hold that this instruction, in view of the circumstances disclosed by the record, should -not have been given. Appellee says, however, that the jury did not follow the instruction, in that it awarded compensatory damages in the sum of one dollar. It will hardly do to say that a verdict for one dollar is compensatory; but, if it be, this does not cure the error in the instruction. The award may have been made in order that there might be no question as to who should pay the costs, without any reference to compensation to the plaintiff; but, if this be not true, the vice of the instruction with reference to mitigation of damages becomes apparent. That is to say, the jury may have concluded that the mitigating facts pleaded should be considered in reduction of actual damages suffered. Upon no ground can the instruction quoted be sustained.”

It is plain nothing said concerning a presumption of actual damages is of the decision.

We held, in Crawford v. Bergen, 91 Iowa, at 677 and 679, that we will not reverse for failure to award nominal damages for slander. True, in Flues v. New Nonpareil Co., 155 Iowa, at 294, we say that there is a distinction between slander and libel, but also that the distinction is that “words are often deemed libelous per se when written which would not necessarily be slanderous when spoken.” The only reasonable interpretation is that words libelous per se may not be slanderous per se. The Flues case is not authority for the proposition that, though there may be a nominal verdict for a slander which charges a statute crime, which is the Crawford case, there cannot be such a verdict for any libel. The rule that every libel is per se actionable includes the gravest and the lightest. In slander, the graver only is thus actionable. While not every slander is slander per se, and every libel is libelous per se, a false oral accusation of arson is as much actionable per se as is every libel. In the Crawford case, we justify a nominal recovery for such an accusation. Is it possible that nominal damages may be sufficient compensation for' a slander charging arson and that more than nominal damages must follow a libel charging injurious treatment of a pavement 1

Because any libel is actionable per se, it follows that recovery for a libel should and will differ, and follows in turn that recovery for some libels will and should not be more than nominal — that, at all events, the law does not proscribe a nominal verdict for the plaintiff in a libel suit.

IY. The very making of the rule of appellate review which denies reversal for failure to obtain nominal damages establishes the right of the appellate court to determine whether more than nominal damages are justified by the record. For such rule can never be applied if the tribunal empowered to apply it may not determine that the plaintiff is not entitled to substantial damages. In the Crawford case, 91 Iowa, at 677 and 679, we held that nothing more than nominal damages was due for a slander charging arson. The only question, then, which we have is whether a substantial recovery by this plaintiff could be sustained if given. We cannot conceive how it could work a substantial injury to plaintiff to publish that a house mover employed by him had been enjoined from moving a tractor over paving.laid down with the official concurrence of plaintiff as mayor, and that plaintiff was made defendant in the temporary injunction. As for the other publication, while we do not purpose to put the seal of approval upon driving an automobile contrary to municipal regulation, the fact remains that driving one at too high rate of speed is not malum in se, and we think we may take judicial notice that one who, on-a single occasion, violates such ordinance will not thereby suffer substantially in his standing as a citizen, in social relations, public esteem generally, nor in financial or political opportunity, nor be pilloried by public ridicule. We think we may so note also, merely as an argument on this proposition, that, while technically such violation is a misdemeanor, it is put into a class by itself, even by those charged with enforcing such regulation, in that usually one accused of violating it is not even put under actual arrest, but is trusted to appear for hearing and to submit to any punishment that may be ordered, upon mere engagement so to appear and submit. While what we have said does not change that such conduct has by ordinance been made a misdemeanor, it does have a bearing on how much, or rather, how little the violation of such ordinance affects the standing of the offender. And while these publications may have tended to provoke the- plaintiff to wrath, that goes rather to the right to sue than to the right to substantial recovery.

It is our opinion that, if this case went to trial and the jury found all that the demurrer admits, we should be compelled to interfere if plaintiff had a substantial verdict. It follows that erroneously sustaining such demurrer effects no more than denying nominal damages and costs of suit, and that, therefore, we should not reverse for such error.— Affirmed.

Weaver, J., concurs.