Lemmer v. "Tribune"

Libel — General and Special Damages — Complaint—Insufficiency. Libel — Pleadings. 1. Plaintiff in an action for libel can recover only, if at all, for the publication of the particular matter referred to in the complaint. Words not pleaded, though published at the same time, cannot be relied on. [As to general rules applicable to libel, see note in 4 Am. Dec. 348.] Same — General Damages — Language must be Libelous Per Se. 2. To state a cause of action for general damages for libel, the language complained of must be libelous per se; i. e., such as, without the aid of innuendo, imputes to plaintiff the commission of a crime or necessarily exposes him to hatred, contempt, ridicule or obloquy. [As to what words are actionable per se, see notes in 1 Am. Dec. 448; 12 Am. Dee. 39; 41 Am. Rep. 590; 116 Am. St. Hep. 802.] Same — What not Libelous Per Se. 3. Held, that language published by defendant the necessary inferences from which were that plaintiff died from an overdose of morphine, procured on a doctor’s prescription by a stranger at plaintiff’s instance, was not libelous per se. Same — Special Damages — Complaint—Insufficiency. 4. Where special damages are sought for a libelous publication, the facts showing such damages must be alleged; hence a general allegation that plaintiff was damaged in his business in consequence of the publication of the article referred to above was insufficient in this respect.

Appeal from District Court, Cascade County; H. EL. Ewing, Judge. Action by Prank Lemmer against the “Tribune” and John A. Curry. Prom a judgment of dismissal, plaintiff appeals. In interpreting an alleged libelous publication the court will construe it in its ordinary and popular sense, and will read it exactly as in a newspaper out of court. The vice of a libel consists in the injury it inflicts upon the character, the feelings and the business of the person concerning whom it is published. Manifestly, this will depend upon the interpretation that is placed upon it by the persons who read it; and those who read an alleged libelous publication will be presumed to be persons of common understanding. (De Scmdo v. New York Herald Go., 88 App. Div. 492, 85 N. Y. Supp. Ill; Hotchkiss v. Olnu stead, 37 Ind. 74; Bettner v. Holt, 70 Cal. 270, 11 Pae. 713; Tappan v. Wilson, 7 Ohio, 190.) Publications of rumors or hearsays or reports are libelous. An article is libelous though it purports to be and is the publication of a rumor only. (Republican, Pub. Co. v. Miner, 3 Colo. App. 568, 34 Pac. 485; Brewer v. Chase, 121 Mich. 526, 80 Am. St. Rep. 527, 46 L. R. A. 397, 80 N. W. 575.) It is no defense that the defendant did not mean to libel plaintiff. (Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392; McAllister v. Detroit Free Press Co., 76 Mich. 338, 15 Am. St. Rep. 318, 43 N. W. 431; Whiting v. Carpenter, 4 Neb. (Unof.) 342, 93 N. W. 926.) In an action for defamation it is immaterial what meaning the speaker intended to convey. He may have spoken without any intention of injuring another’s reputation, but if he has in fact done so, he must compensate the party. What was passing in his mind is immaterial, save in so far as his hearers could perceive it at the time. Words cannot be construed according to the secret intent of the speaker. The slander and the damage consists in the interpretation of the hearers. (Berry v. Massey, 104 Ind. 486, 3 N. B. 942; Massuere v. Dickens, 70 Wis. 83, 35 N. W. 349.) Innuendo: The article complained of is fairly susceptible of a libelous construction without reference to any extrinsic fact or circumstance, and the innuendo fairly interprets its meaning ; and more than this, the innuendo fairly sets forth the very meaning which is unmistakably pointed out in the article itself. Where there is no extrinsic fact or circumstance relied upon as giving to the publication, a libelous meaning, the innuendo is simply a statement of the conclusion of the pleader as to the meaning of the language used. The purpose of the innuendo is not to state facts, but to state the conclusion which the pleader draws from the language used. (13 Ency. PI. & Pr. 54, 55; Ayres v. Toulmin, 74 Mich. 44, 41 N. W. 855; Singer v. Bender, 64 Wis. 169, 24 N. W. 903; Price v. Conway, 134 Pa. St. 340, •19 Am. St. Rep. 704, 8 L. R. A. 193,19 Atl. 687.) Did the publication of the article in question expose the appellant to hatred, contempt, ridicule or obloquy or cause him to be shunned or avoided? To so hold would require the placing of an interpretation on the article not imputed by the words used. To constitute libel per se, the language used must require no interpretation; it must be viewed by the court as a stranger might look at it, without the aid of special knowledge possessed by the parties concerned and susceptible of but one meaning, and that which leads to the injurious consequences. (Brown v. Independent Pui. Co., 48 Mont. 374, 138 Pac. 258.) The plaintiff evidently had in mind this fact, and the further fact that by the natural and usual interpretation, the article did not constitute libel. He sought by the allegation “meaning therein and thereby, that this plaintiff was and had been addicted to the use of ‘dope’ (morphine); that he had died from an overdose thereof; that he had purchased it clandestinely,” which he employed by way of innuendo, to place upon the article a libelous import. ‘ ‘ The innuendo cannot change the character of the publication. If it is not libelous per se, it cannot be made so by innuendo.” {Brown v. Independent Pub. Co., supra; Continental Nat. Bank v. Bowdre, 6 Tex. Civ. App. 349, 25 S. W. 131;. Cole v. Neustadter, 22 Or. 191, 29 Pae. 550; Stitzell v. Reynolds, 59 Pa, St. 488; Dixon v. State, 81 Ala. 61, 1 South. .69; Bradley v. Cramer, 59 Wis. 309, 48 Am. Rep. 511, 18 N. W. 268; Barnes v. State, 88 Md. 347, 41 Atl. 781; Dun v. Maier, 82 Fed. 169, 27 C. C. A. 100; Tickers v. Stoneman, 73 Mich. 419, 41 N. W. 495; CoJ)y,rn v. Harwood, Minor (Ala.), 93, 12 Am. Dee. 37; Gaither v. Advertiser Co., 102 Ala. 458, 14 South. 788; 25 Cyc. 450.) In the second count of his complaint, appellant seeks to recover special damages on account of alleged loss to his business as a taxidermist. “To sustain the action on the ground of special damages it is necessary that the complaint should set .forth precisely in what way such special damages resulted. It is not sufficient to aver generally that the plaintiff has suffered special damages or that he has been put to great cost and expense thereby. But it must be made to appear by proper averment how much special damages were occasioned.” (5 Eney. PI. & Pr. 767; 25 Cyc. 454^456; Newell on Libel & Slander, 866; Walker v. Tribune Co., 29 Fed. 827; Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308; Verbeck v. Duryea, 36 Mise. Rep. 242, 73 N. Y. Supp. 346; Jockin v. Brassier, 114 App. Div. 177, 99 N. Y. Supp. 586; Kansas City etc. B. Co. v. Delaney, 102 Tenn. 289, 52 S. W. 151; Brinkmmm v. Taylor, 103 Fed. 773; American Ins. Co. v. Prance, 111 Ill. App. 382; Beinboth v. Eder-heimer, 134 N. Y. Supp. 16.)