Ballinger v. Democrat Co. ( 1927 )

I. Appellant is the divorced wife of Rodney Ballinger. Her husband commenced an action for divorce in 1917. Decree was entered November 3, 1923, granting a divorce to appellant upon her cross-petition. The ground for divorce charged in the husband's petition was cruel and inhuman treatment. An account of the divorce proceedings, which gave a brief history thereof, stating that the petition charged appellant with infidelity, was published in The Evening Democrat, a paper published by appellee. Some months later, this action, which is based upon the article referred to, was commenced by plaintiff for damages. The answer admitted the publication, denied that it was published with malice or evil intent, averred that it was published upon information obtained from Rodney Ballinger; that it was published merely as a news item of the court proceedings of the day; that it was not intended thereby to injure or defame the plaintiff or to charge her with immoral conduct. The answer further pleaded that the publication, which was of judicial proceedings, was privileged. Appellant offered in evidence the article and the files of the divorce action, and rested. The only evidence on her part relating to damages was brought out on cross-examination.

W.J. McGiffin, manager of the Democrat Company, testified that he was not acquainted with appellant, and that he at no time had any malice or ill feeling toward her; that he offered, when complaint was made to him of the publication of the article, to print a retraction, or any explanation that would correct the error.

L.H. Danley, news gatherer for the paper, testified that Rodney Ballinger told him, on the morning the case was tried, that the case was for trial, and that it would be interesting, and invited him to the courthouse to hear it. J.C. Hamilton, an attorney at Fort Madison, testified that he brought the divorce action for Rodney Ballinger; that he intended, by the following language in the petition charging a ground for divorce, "and has been guilty of many other acts of cruelty toward this plaintiff, which this plaintiff will set forth more specifically, if requested so to do by the defendant or by the court," to imply that appellant was guilty of infidelity.

The testimony of Danley and Hamilton was admitted over the objection of appellant, and the admission thereof constitutes some of the alleged errors relied upon for reversal. The court submitted to the jury the question as to whether the use of the word "infidelity" in the article was intended to charge the plaintiff with unchastity, and instructed the jury that, if it so found, the publication was libelous per se, and both malice and damages would be implied. This and other paragraphs of the court's charge are complained of. The petition charged express malice. No testimony was introduced, however, tending in any way to sustain the charge.

It is contended by appellant that evidence to the effect that the publication was based upon information obtained from others was inadmissible. It is the rule in this state that, unless the alleged libel on its face purports to be 1. LIBEL AND published on the authority of others, evidence SLANDER: that it was so published is not admissible in actions: mitigation of exemplary damages. Wallace v. express Homestead Co., 117 Iowa 348. It is also the malice: rule in this state that, evidence rebut. where express malice is charged, it is competent for the defendant to show good faith on his part, together with the source of his information. Snyder v. Tribune Co.,161 Iowa 671; Dorn and McGinty v. Cooper, 139 Iowa 742. Although without support in the evidence, the charge of actual malice was not withdrawn, and this issue was submitted to the jury. Under the rule last stated, the evidence was clearly admissible.

II. We can perceive no theory upon which the testimony of Hamilton was admissible. The petition in the divorce action did not charge appellant with infidelity, nor could 2. LIBEL AND this charge reasonably be inferred from the SLANDER: language of the petition. The objection to the actions: testimony of this witness should have been evidence. sustained.

III. The trial court was of the opinion that the word "infidelity" employed in the publication did not necessarily charge unchastity. No doubt the word may properly be used to express delinquency in other forms. When, 3. LIBEL AND however, employed in the connection shown, its SLANDER: meaning is obvious, and would be universally words understood to charge unchastity. The word actionable: "intimate" in similar connections has been held charge of to mean unchastity. Arnold v. Lutz, 141 Iowa "infide- 596; Flues v. New Nonpareil Co., 155 lity." Iowa 290. It is universally held that to charge a woman with unchastity is libelous per se. Cleveland v.Detweiler, 18 Iowa 299; Charleson v. Russell, 144 Iowa 38; Fluesv. New Nonpareil Co., supra. Unless, therefore, the article in question privileged, it was libelous per se. In such case, malice and damages will be implied. McDonald v. Nugent, 122 Iowa 651;Sheibley v. Ashton, 130 Iowa 195; Morse v. Times-Republican Ptg.Co., 124 Iowa 707.

IV. We come now to consider the claim of appellee that the publication of the article was privileged. The publication of judicial proceedings, if fairly and impartially done, without express malice, is privileged. Flues v. New Nonpareil Co., supra.

The article complained of did not fairly report the grounds upon which the plaintiff in the divorce action asked the dissolution of the marriage relation. There is a vast distinction 4. LIBEL AND between a charge of cruel and inhuman treatment SLANDER: and a charge of infidelity, which, in such case, privileged means adultery. Had the article fairly stated communica- the true ground of the petition, it would have tion: been privileged. The substitution of language judicial importing unchastity for the true charge in the proceedings: petition destroyed the right of the appellee to mistaken rely upon this as a defense. Aside from the use report. of the one word, the article is apparently fair and impartial. There is not on the face of the article any malice or bad faith. So far as appears from the published article, the libelous language was due to mistake. This, however, does not alter its character as a libelous publication. The article correctly and very properly stated that the divorce was granted to appellant upon grounds alleged by her.

Other grounds are discussed by counsel, but they should not arise upon a retrial. What we have said sufficiently disposes of the appeal. The judgment of the district court is — Reversed.

EVANS, C.J., and FAVILLE and VERMILION, JJ., concur.