Mowry v. Raabe

Libel — Distribution of Circulars — Charge of Selling Diseased Pork — Justification — Insufficient Proof.—In an action against the members of a “Butchers’ Protective Union,” for damages for distributing printed circulars charging the plaintiff, a retail butcher, with selling his customers “ Chinese pork and lard which contained the seeds of disease, and spread pestilence and death,” proof that the pork sold by the plaintiff was obtained from the Chinese, and that the Chinese often sold diseased pork, is insufficient to constitute the defense of justification, in the absence of evidence that the pork sold by the plaintiff was diseased, or would spread the seeds of disease and death.

Id.—Object of Butchers’ Union — Refusal of Plaintiff to become a Member—Evidence — Reasons of Plaintiff. —In such action, where it was claimed that one object of the butchers’ union was to prevent the sale of unsound pork by the Chinese, it was not error to allow the plaintiff to explain that he had other reasons for refusing to join the union than a desire to deal in such pork.

Id.—Justification—Implication of Malice—Evidence — Maliciousness of Charge. — Where the defendants justify the publication of libelous matter on the ground that it was true, they must prove the truth of the charge, to rebut the legal implication of malice, and cannot properly be asked whether they had any malice at the time of the publication.

Id. — Personal Ill-will. — Although a defendant charged with libel may show in mitigation, by his own testimony, that he was not actuated by ill-will or a feeling of personal spite, yet such evidence is not sufficient to disprove that malice which constitutes a necessary ingredient of the cause of action, and which the law implies from the falsity of the libelous publication.

New Trial — Order Granting—Newly Discovered Evidence—Abuse of Discretion. — Although the granting of a new trial on the ground of newly discovered evidence is specially within the discretion of the trial court, yet where the moving party makes no showing as to diligence, and the contrary appears by counter-affidavits, and the newly discovered evidence is merely cumulative, and does not meet the exigencies of the ease, such order is an abuse of discretion, and will be reversed upon appeal.