Sharpe v. Larson

70 N.W. 1, 67 Minn. 428, 1897 Minn. LEXIS 184

• Court: Supreme Court of Minnesota
• Decided: February 9, 1897
• Docket: Nos. 10,348—(271)
• Status: Published

Opinions

START, C. J.

Action for a libel. The defendant admitted the publication here in question, and the trial court instructed the jury that it was libelous per se, and that the jury must return a verdict for the plaintiff for damages in some amount. Verdict for $500, and the defendant appealed from an order denying his motion for a new trial.

Practically the only question for our decision is whether the pub-' lication was a libel per se. The plaintiff was, during all the times stated in the pleadings, an attorney at law, and county attorney of the county of Norman from January 1, 1894, to January 1, 1895, during which time the defendant was convicted of an assault and battery, on the complaint of N. T. Moen in justice court. He attempted to appeal to the district court, and caused to be served on the plaintiff as such county attorney a notice of appeal. On the plaintiff’s motion as county attorney the appeal was dismissed in the district court for the reason that ihe notice did not state the grounds of the appeal. Afterwards, and after the plaintiff ceased to be county attorney, and on March 12, 1896, the defendant, in reply to a previous publication by Moen relating to the prosecution of the defendant, published in a local newspaper a lengthy article which reflected upon Moen and the justice, and in which he also published of and concerning the plaintiff these words:

“Once, when I was in Ada, I stepped in to the county attorney, and asked him if he had received notice of appeal in my case, and he said, ‘Yes,’ and Moen was not sure that Judge Ives would hold me on probable cause, so he went to Ada, and persuaded the county attorney to claim that he never received notice of appeal, and the result was that the appeal was dismissed, and I had to pay the fine, and Moen claims he got satisfactory revenge.”

A publication which imputes to one holding an office improper •conduct therein, or to an attorney at law professional misconduct, is libelous per se. It is not necessary that the person libeled should at the time of the publication still hold the office. Odgers, Sland. & L. 26; Pratt v. Pioneer Press Co., 32 Minn. 217, 18 N. W. 836, and 20 N. W. 87. If the publication is obviously defamatory, it is the duty of the trial judge, in a civil action, to direct the jury, as a. matter of law, that it is a libel per se, and that they must find for the plaintiff. Smith v. Stewart, 41 Minn. 7, 42 N. W. 595. The defendant in such a case cannot be heard to say that he did not intend by the publication to injure the plaintiff. But, where the publication is reasonably susceptible of a defamatory meaning, as well as an innocent one, according to the occasion and circumstances of the publication, the question whether it is libelous is one for the jury. Pratt v. Pioneer Press Co., 30 Minn. 41, 14 N. W. 62; Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 387.

The publication here in question falls within the first class, and is obviously defamatory. It is not reasonably susceptible of an innocent meaning, and is a libel per se. It charges the defendant with both professional and official misconduct, in that, contrary to the truth and his duty, he permitted himself to be persuaded to claim in court that he had never received the notice of appeal, whereby the appeal was dismissed, and the defendant unjustly compelled to pay a fine. The charge implies that the plaintiff, as an attorney and officer, by dishonest means and by a false statement of fact to the court, procured the dismissal of the appeal at the instigation of another, who was thereby enabled to claim that “he got satisfactory revenge.” Such a charge necessarily tends to diminish public confidence in the plaintiff’s official and professional integrity.

The defendant, however, claims that the publication was privileged. There was no evidence in the case tending to show it to be such. The publication was made after the plaintiff had ceased to be county attorney, and at a time w'hen he was not a candidate for any public office. It was not made to any court or officer authorized to inquire into the matter, or in the discharge of any duty, public or private. It was not reasonably necessary for the protection of any interest of the defendant, or for his own vindication. The publication being a libel per se, and not privileged, it follows that the trial court did not err in refusing to direct a verdict in favor of the defendant, or in instructing the jury that the plaintiff was entitled to a verdict for some damages without proof of malice.

The defendant’s objections to the questions put to him on cross-examination were rightly orerruled, for the questions were proper as a. part of the cross-examination, and as tending to show his mo-tire for the publication.

The defendant’s last assignment of error is to the effect that the court erred in denying his motion for a new trial. This is insufficient to enable the defendant to raise here the question that the damages awarded are excessire, as the motion for a new trial was based upon three separate grounds, one of which was that the damages were excessire. Hence we cannot consider this question.

Order affirmed.