Zanker v. Lackey

• Decision Date: 16 January 1925
• Citation: 128 A. 373,32 Del. 588
• Court: Delaware Superior Court
• Parties: WILLIAM ZANKER v. FRANK D. LACKEY

128 A. 373

32 Del. 588

WILLIAM ZANKER v. FRANK D. LACKEY

Superior Court of Delaware, New Castle County

January 16, 1925

Superior Court for New Castle County, September Term, 1924.

Action for libel, No. 12, January Term, 1924. Demurrer to declaration.

The demurrer is sustained.

E Ennalls Berl for plaintiff.

Clarence A. Southerland for defendant.

PENNEWILL C. J., and RICHARDS, J., sitting.

OPINION

RICHARDS, J.

The declaration sets forth that the defendant, Frank D. Lackey did on or about the 15th day of March, A. D. 1923, make a false, scandalous, malicious and defamatory statement to one Thomas Hill, a reporter for the Evening Journal, a daily newspaper published in the city of Wilmington, in order that the said Thomas Hill might publish the same in the said Evening Journal. Said statement was in the following words:

"Yes, I was charged with a technical violation of the rules of the Stock Exchange (meaning the bucketing of orders as aforesaid and the filling of the same at different prices than those reported to customers as aforesaid). While I had not personally violated any rules, it appeared to the satisfaction of the Stock Exchange that somebody in my employ (meaning the plaintiff) did. While I, of course, regret it very much, it does not affect me financially, and will not affect my business or business connections in any way (meaning that since the plaintiff and not he, the defendant, had committed the irregularities above described, such irregularities could not affect him, the defendant, financially, although they might affect financially the plaintiff, who had committed them.)"

That there is a distinction between written or printed and oral words of a defamatory nature, with respect to their actionable character seems to be well settled by the courts. Spoken words sufficient to maintain a suit for slander will also maintain a suit for libel if written or printed and published, but many accusations and charges which should not be actionable when spoken without proof of special damages, would be libelous per se when written or printed and published. Rice v. Simmons, 2 Del. 417, 2 W.W. Harr. 417, 31 Am. Dec. 766; Obaugh v. Finn, 4 Ark. 110, 37 Am. Dec. 773; Tillson v. Robbins, 68 Me. 295, 28 Am. Rep. 30; Augusta Evening News v. Radford, 91 Ga. 494, 17 S.E. 612, 20 L. R. A. 533, 44 Am. St. Rep. 53; Cerveny v. Chicago Daily News Co., 139 Ill. 345, 28 N.E. 692, 13 L. R. A. 864; Prosser v. Callis, 117 Ind. 105, 19 N.E. 735; Riley v. Lee, 88 Ky. 603, 11 S.W. 713, 21 Am. St. Rep. 358; Clark v. Binney, 2 Pick. 113; Feder v. Herrick, 43 N.J.L. 24; Moore v. Francis, 121 N.Y. 199, 23 N.E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810; Moss v. Harwood, 102 Va. 386, 46 S.E. 385.

Defamatory words either spoken or written and publised may be actionable per se, namely, words of such a character as would alone convey to a person of average intelligence a meaning or understanding tending to blacken the reputation of another person or hold him in contempt and ridicule; or such words may be actionable only upon allegations making them applicable to the aggrieved person and upon proof of damages resulting therefrom. Morey v. Morning Journal Ass'n, 123 N.Y. 207, 25 N.E. 161, 9 L. R. A. 621, 20 Am. St. Rep. 730; Woodhouse v. Powles, 43 Wash. 617, 86 P. 1063, 8 L. R. A. (N.S.) 783, 117 Am. St. Rep. 1079, 11 Ann. Cas. 54; State v. Brady, 44 Kan. 435, 24 P. 948, 9 L. R. A. 606, 21 Am. St. Rep. 296; Newbit v. Statuck, 35 Me. 315, 58 Am. Dec. 706; Melcher v. Beeler, 48 Colo. 233, 110 P. 181, 139 Am. St. Rep. 273; Tracy v. Hacket, 19 Ind.App. 133, 49 N.E. 185, 65 Am. St. Rep. 398; Childers v. San Jose Mercury P. & P. Co., 105 Cal. 284, 38 P. 903, 45 Am. St. Rep. 40.

In the case of Rice v. Simmons, 2 Del. 417, 2 W.W. Harr. 417, 31 Am. Dec. 766, Judge Harrington used the following language:

"On the whole, I regard it as a principle of the common law, to be collected if not from all the cases, at least from all that at this day and in this country, can be recognized as authority; that written slander to be actionable, must impute something which tends to disgrace a man, lower him in, or exclude him from society, or bring him into contempt or ridicule; and that the court must be able to say from the publication itself, or such explanations as it may admit of, that it does contain such an imputation, and has legally such a tendency."

In the case of Layton v. Harris, 3 Del. 406, 3 Harr. 406, Chief Justice Booth defined libel in these words:

"A libel is a malicious publication in printing, writing, signs or pictures, imputing to another something which has a tendency to injure his reputation; to disgrace or degrade him in society, lower him in the esteem and opinion of the world, or bring him into public hatred, contempt or ridicule."

Are the words of the publication upon which this action is based, words of such import that the general public would consider them defamatory and, therefore, actionable per se? No particular person was named in the publication, and when the words named in the declaration as defamatory are considered alone, it is impossible to tell to whom they were intended to apply, consequently they cannot be considered defamatory of the plaintiff. We are, therefore, of the opinion that the words were not actionable per se.

Having arrived at this conclusion, we are next called upon to decide whether the words of the publication, when considered in connection with the allegations of the inducement explaining their application to the plaintiff, are libelous.

The terms generally applied to this method are the "inducement," "colloquium" and " inneundo."

The plaintiff has alleged by way of inducement that the defendant, before and up to the time of the publication in question was a member of the New York Stock Exchange, and proprietor of a stockbroker's office at 923 Market street, Wilmington, where for a number of...