138 P.2d 580 (Mont. 1943), 8355, Griffin v. Opinion Pub. Co.

Docket Nº:8355.
Citation:138 P.2d 580, 114 Mont. 502
Opinion Judge:ADAIR, Justice.
Attorney:D. J. Sias, of Chinook, and Geo. E. Hurd, of Great Falls, for appellant. Burns & Thomas, of Chinook, and Karl F. Frisbie, of Havre, for respondent.
Judge Panel:JOHNSON, C.J., and ANDERSON and MORRIS, JJ., concur. ERICKSON, J., concurs in the result.
Case Date:June 08, 1943
Court:Supreme Court of Montana

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138 P.2d 580 (Mont. 1943)

114 Mont. 502




No. 8355.

Supreme Court of Montana

June 8, 1943

Rehearing Denied June 23, 1943.

Appeal from District Court, Twelfth Judicial District, Blaine County; C. B. Elwell, Judge.

Action by James Griffin against Opinion Publishing Company for libel. From a judgment for plaintiff after defendant's motion for a directed verdict was overruled, defendant appeals.

Reversed and judgment for defendant ordered.

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D. J. Sias, of Chinook, and Geo. E. Hurd, of Great Falls, for appellant.

Burns & Thomas, of Chinook, and Karl F. Frisbie, of Havre, for respondent.

ADAIR, Justice.

In a civil action for libel, the plaintiff James Griffin recovered a judgment for money damages against defendant Opinion Publishing Company for two articles published in defendant's weekly newspaper, the Chinook Opinion, and from such judgment the defendant has appealed.

Numerous specifications of error are assigned, among them being that the complaint fails to state a cause of action for libel and that the evidence fails to prove any libel.

The first of the two newspaper articles complained of was published in the issue of the Chinook Opinion of September 11, 1941, and reads:

"This will be a Scoop on the Journal. Gather round you boy scouts and girl scouts to learn a few new wrinkles in civic affairs.

The Chinook City council last Thursday night had a hot one tossed on the table when they were asked to settle a claim of James Griffin rather than continue a law suit that James Griffin has brought against the city. The claim is of dubious legality as the court has not had a chance to say whether the city should or shouldn't pay.

Mr. Griffin was represented by his attorney, Mr. Harry Burns, who also happens to be our duly elected city treasurer. This in itself is a new wrinkle in civic affairs as few men can both serve and sue the city at the same time. Just how the city can legally pay a claim of dubious legality is going into the higher branches of the law that leaves most of us a little dizzy. In case you are still following this piece and haven't fallen off somewhere, there is a new development on how to make friends and influence an Alderman. We leave this for home study and naming no names we give, as your next assignment a bit of home work: read document No. 145268 on file in the office of the Blaine County Clerk and Recorder.

What happened to the claim? Action deferred until next meeting."

The other article complained of appeared in the September 25, 1941, issue of defendant's newspaper and reads:

"It Sure was a Scoop Well that certainly was a scoop on the Journal that we ran two weeks ago, so labeled. Our contemporary

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loudly admitted it last week and had an attorney write it up for them. A very nice admittance of an oversight and very poor newspaper work on the part of the Journal in that its editor was really in on the ground floor when the story orignally broke and carelessly (?) failed to write it up.

A sad part of the admission, however, is the attempt, probably due to the rut in which the writer's profession naturally puts him, to use the very evidence of the truth of our story to make it out misleading and, by misapplying the insinuations made in our simple little scoop, drag those not otherwise implicated into the 'deal'."

In our opinion, no cause of action for libel is stated in the plaintiff's complaint nor is any such cause established by the evidence in the case.

"To create liability for defamation there must be an unprivileged publication of false and defamatory matter of another which (a) is actionable irrespective of special harm, or (b) if not so actionable, is the legal cause of special harm to the other." Restatement of the Law of Torts, c. 24, § 558, p. 139.

The law of Montana conforms to the above Restatement.

"Libel is a false and unprivileged publication by *** printing *** which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Section 5690, Revised Codes of Montana 1935.

Thus to be actionable, to constitute libel, the publication (1) must be false and (2) it must be unprivileged and (3) it must be defamatory.

In the instant case, it is admitted that the defendant published the two articles complained of. However, the evidence established the articles to be (1) true,--not false, (3) privileged,--not unprivileged, and it fails to show that the language used is defamatory. Under such circumstances there can be and is no libel.

"The truth of a defamatory statement of fact is a complete defense to an action for defamation." Restatement of the Law of Torts, c. 24, § 582, p. 216.

To give rise to a civil action for libel the words used must be either (1) actionable per quod or (2) actionable per se.

Clearly the complaint fails to state a cause of action based upon words actionable per quod for there is no allegation whatever of any special damage. Further the record discloses that there is no proof of any special damage hence libel per quod is entirely eliminated from the case.

Plaintiff rests his entire case upon the contention that the words of the newspaper article are actionable per se. However, for words to be actionable per se their injurious character must be a fact of such common notoriety as to be established by the general consent of men so that the court takes judicial notice of it. Here the words appear to be clear and unambiguous and we fail to see where such words or the language of the newspaper articles charge plaintiff with the commission of any crime or that same may, by common notoriety, be said to be of such injurious character as to require the court to take judicial notice of it. "Where the language complained of is clear and unambiguous, it is the duty of the court to determine whether it is actionable, either per se or per quod." 33 Am.Jur. § 294, p. 277.

Absolute privileges are of two general classes, they being (1) the privilege which arises from the consent of the person defamed and (2) the privileges which are conferred by law because of the occasion on which the defamatory matter is published.

"Privileges of the second class are based upon a public policy which recognizes that it is desirable that true information shall be given whenever it is reasonably necessary for the protection of one's own interests, the interests of a third person or certain interests of the public. In order that such information may be freely given it is necessary to protect from liability those who for the purpose of furthering the interest in question give information which though in fact untrue, they reasonably believe to be true and appropriate for the furtherance of such interest." Restatement of the Law of Torts, c. 25, § 584, pp. 224, 225.

As before stated, we find nothing false nor defamatory in the two published articles but even though the published matter were both false and defamatory still it is the law that, "One who publishes false

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and defamatory matter of another is not liable therefor if (a) it is published upon a conditionally...

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