Clifton v. Lange

G-iveN, J. 1 — I. In view of the questions involved, we regret that the case is submitted without argument for appel-lee. The publication is conceded to be libelous and actionable per se. By the first division of the answer, we have the single issue whether it was maliciously published, and it was upon this issufe that the case was submitted to- the jury. The defendant, “for a second and complete defense, * * * states that every fact, charged” in the publication to have been done by the plaintiff “was the truth, and in fact done as therein charged.” Such a plea must be as broad as the charge made. This is not so. It merely pleads as true what are stated to have been the acts of the plaintiff, and does not plead the truth of the libelous charges. To plead that part of the charge is true'is not sufficient; the entire libelous charge must be alleged to be true; and, if this [475] was tbe defendant’s purpose, be should have pleaded it in unmistakable language. Hollenbeck v. Ristine, 105 Iowa, 488; Townshend Slander and Libel, section 212 The demurrer was properly sustained to this defense. 2 II. The third division of the answer sets up matters in mitigation of damages. It is a lengthy statement of matters concerning the transactions mentioned in the publication, which the defendant alleges he had heard, and that were told to him before he made the publication. In Newell Defamation, section 71, after stating the general rule that evidence of previous publications by others is inadmissible in mitigation of damages, it is said: “To this rule there seems to be one exception: If defendant, in. repeating the story as it reached him, gives it as hearsay, and states the source of his information, then, but only then, is the fact that he did not originate the falsehood, but innocently repeated it, allowed to tell in his favor, as proving that he bore the plaintiff no malice.” It is further said: “But where the libel does not, on the face of it, purport to be derived from any one, but it is stated as of the writer’s own knowledge, then evidence is wholly inadmissible to show that it was copied from a newspaper or communicated by a correspondent.” See, also, Blocker v. Schoff, 83 Iowa, 266. There was no error in sustaining the demurrer to this division of the answer, nor in excluding evidence in support of it, nor in the instruction complained of. [475] III. In the fifth division of the answer it is alleged, a» a complete defense, that said publication is privileged. The law is well settled that a fair and true publication, without malice, of a judicial proceeding, or of anything stated as a part thereof, or “a criticism of an official act of a public offjcer, made without malice, and not containing any attack upon his private character,” is privileged. Townshend Slander and Libel, section 208, and note; McBee v. Fulton, 47 Md. 403; McAllister v. Press Co., 76 Mich., 338 (43 N. W. Rep. 431) ; 13 Am. & Eng. Enc. Law, 419, In Comfort [476] v. Young, 100 Iowa, at page 630, we said: “It was for tbe court to determine whether the publication, was privileged or not.” ' The publication admitted to have been made is not privileged, for the reason that it contains an attack upon the private character of the plaintiff, and it is not, therefore, a privileged publication; and there was no error in sustaining the demurrer to the fifth division of the answer. 4 IV. In the fourth division of the answer, which was withdrawn on plaintiff’s motion, the defendant recites at length, as facts, matters preceding and occurring on the trial referred to in the publication, substantially as set forth in the third division. In conclusion, he alleges that said matters set out as facts were true, that the publication was of comments fairly arising thereon, and that the imputations published were true, and were in good faith and without malice. Nor reasons already stated, this plea is not broad enough to constitute a justification on the grounds of the truth of the matters charged. The plea is not as broad as the charge. Therefore there was no error in withdrawing it on plaintiff’s motion. We discover no prejudicial errer, and the judgment is therefore afeirivced.