Reed v. Melnick

Citation81 N.M. 608,1970 NMSC 94,471 P.2d 178
Decision Date06 July 1970
Docket NumberNo. 8950,8950
Parties, 49 A.L.R.3d 156 F. L. W. REED, Plaintiff-Respondent, v. Mitchell MELNICK, Defendant-Petitioner.
CourtNew Mexico Supreme Court
Sterling F. Black, Albuquerque, for plaintiff-respondent
OPINION

WATSON, Justice.

Certiorari was granted to the Court of Appeals for the above entitled case. The opinion below, which appears at 81 N.M. 14, 462 P.2d 148 (Ct.App.1969), will not be set forth here except by reference. It was a libel action brought against the writer of a letter to an insurance company requesting that a refund premium not be sent to the agent (plaintiff), because 'people cannot get money out of him * * * as he is threatening bankruptcy.' The Court of Appeals held that this language was libelous per se since it had a tendency to adversely affect plaintiff in his business, trade, or profession, and thus a cause of action was stated even though special damages were not pleaded.

In their dissent in the libel action of McGaw v. Webster, 79 N.M. 104, 440 P.2d 296 (1968), Justices Moise and Carmody asked for a re-examination of the 'per se' and 'per quod' doctrine followed by this court.

In Thomas v. Frost, 79 N.M. 125, 440 P.2d 800 (Ct.App.1968), the Court of Appeals held that the publication of an indebtedness in a credit report was not 'libel per se' but said:

'In so doing, we do not overlook appellant's contention that the distinction between per se and per quod libel be reconsidered. There is authority for such a reconsideration. Hinkle v. Alexander, 244 Or. 267, 411 P.2d 829, 417 P.2d 586 (1966); Martin v. Outboard Marine Corp., 15 Wis.2d 452, 113 N.W.2d 135 (1962) and Herrmann v. Newark Morning Ledger Co., 48 N.J.Super. 420, 138 A.2d 61 (1958). However, the very recent New Mexico Supreme Court decision of McGaw v. Webster, supra, continued to recognize and apply the distinction. We feel reconsideration is foreclosed because of the recentness of the decision of New Mexico's highest court.' 79 N.M. at 128, 440 P.2d at 803.

See also Judge Oman's remarks in his dissent in the present case, 462 P.2d at 151.

In view of the above, and because we felt that the matter involved an issue of substantial public interest, we granted certiorari and requested that the attorneys for the respective parties submit briefs suggesting alternatives to the holdings placed in doubt by the learned justices and judges.

In the present case the appellate court held that where the written defamatory statement contained an imputation which falls within one of the four categories which constitute slander per se, then the defamatory statement is libelous per se, and no special damages need be pleaded. These are imputations of: (1) a crime; (2) a loathsome disease; (3) those adversely affecting plaintiff in his business, trade, profession, office, or calling; and (4) unchastity to a woman. Prosser, Law of Torts § 107 (3rd ed. 1964).

Although there is substantial authority for the holding of the Court of Appeals, as shown by the citations in its opinion, authorities to the contrary are also substantial, as indicated in the quote from Thomas v. Frost, supra. In Hinkle v. Alexander, 244 Or. 267, 417 P.2d 586 (1966), the court described the debate within the American Law Institute over what rule as to libel should be adopted for Restatement (Second) of Torts. The present Reporter (Prosser) wishes to adopt a rule which, like the present New Mexico rule, would require pleading of special damages unless the defamatory matter was libelous per se, where as apparently a majority of the Institute members favor retention of the 'common law' rule now embodied in Restatement of Torts § 569 (1938), with a modification hereinafter discussed. In this debate, our holding in Chase v. New Mexico Publishing Co., 53 N.M. 145, 203 P.2d 594 (1949), has been questioned. Eldredge, The Spurious Rule of Libel Per Quod, 79 Harv.L.Rev. 733, 743 (1966); Prosser, More Libel Per Quod, 79 Harv.L.Rev. 1629, 1641 (1966); 43 A.L.I. Proceedings 435, 443 (1966).

In New Mexico, we continue to make a distinction between oral and written defamation. The reason for such a distinction was set forth in Dillard v. Shattuck, 36 N.M. 202, 11 P.2d 543 (1932), where Justice Sadler said:

'Finally, it should be borne in mind, as an established distinction, that oral defamation is more strictly construed than is libel. 36 C.J. 1157; 17 R.C.L. 266; Jones v. Jones, (1916) 2 A.C. 401, 10 British Ruling Cases, 511, and case note at page 543. The reason for this distinction is obvious. Written slander, by reason of its wider circulation and enduring form, is calculated to inflict greater permanent injury to character, and suggests stronger malice by reason of its studied preparation.' 36 N.M. at 205, 11 P.2d at 545.

The reasons for the requirement of proof of special damages in libel actions where the defamatory words do not convey a defamatory meaning without resort to extrinsic facts which demonstrate the defamatory nature of the writing, and why all slander actions except those involving the four imputations above mentioned require proof of special damages are largely historical and are well set forth in Prosser, Libel Per Quod, 46 Va.L.Rev. 839, 840 (1960). This requirement of allegation and proof of special damages is a serious hurdle to a recovery in either libel or slander actions. See Del Rico Co. v. New Mexican, 56 N.M. 538, 246 P.2d 206 (1952), and Dillard v. Shattuck, supra. What is the money value of one's reputation, even when related to a business or profession? It may well be that we are requiring the plaintiff to 'measure the unmeasurable,' as stated in Comment, The Libel Per Se--Libel Per Quod Distinction in New Mexico, 4 Nat.Res.J. 590, 604 (1965). Under the present rules, if he cannot measure his reputation he cannot even vindicate it.

We believe that the better rule recognizes that an injury may be as great where the defamation is latent as where it is patent, and the very serious harm may result from false imputations not included within the four indicated above. We doubt if all of the reasons for the distinction between libel and slander are still valid. Certainly today there is often as wide a circulation of the spoken word via radio and television as there is of the written word in the press. If prejudiced juries are prone to award large verdicts against publishers, the better rule would correct this by proper instructions or the remittitur of excessive judgments, rather than depriving the injured person of his cause of action. The press in this state should have the same protection from its innocent mistakes as that afforded the visual or sound broadcasters who are held free of liability for theirs 'unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.' Section 40--27--35, N.M.S.A., 1953 Comp.

We hold that the better rule, which we hereby adopt, is as follows:

One who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the publication a libel, is liable to the other although no special harm or loss of reputation results therefrom; provided, however, that where the defamatory character of the writing can only be shown by reference to extrinsic facts the plaintiff must plead and prove either: (1) that the publisher knew or should have known of the extrinsic facts which were necessary to make the statement defamatory in its innuendo; or (2) special damages.

Thus we adopt § 569 of the Restatement of Torts, together with what we understand to be the intended meaning of the amendment adopted at the 1966 meeting of the American Law Institute. Restatement of Torts, supra; 43 A.L.I. Proceedings, supra, at 460. This, we believe, is in keeping with Justice Traynor's reasoning in the California case of MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 343 P.2d 36 (1959). See, also, Hinsdale v. Orange County Publications, Inc., 17 N.Y.2d 284, 270 N.Y.S.2d 592, 217 N.E.2d 650 (1966); Samore, New York Libel Per Quod: Eingma Still?, 31 Albany L.Rev. 250 (1967); Comment, Defamation--Libel Per Quod and Special Damage, 45 N.C.L.Rev. 241 (1966). Our previous holdings contrary to the above are modified accordingly. Such would include McGaw v. Webster, supra; Rockafellow v. New Mexico State Tribune Co., 74 N.M. 652, 397 P.2d 303 (1964); Hoeck v. Tiedebohl, 74 N.M. 146, 391 P.2d 651 (1964); Young v. New Mexico Broadcasting Company, 60 N.M. 475, 292 P.2d 776 (1956); Del Rico Co. v. New Mexican, supra; and Chase v. New Mexico Publishing Co., supra. We limit the statement of the 'per se--per quod' rule in Ramsey v. Zeigner, 79 N.M. 457, 444 P.2d 968 (1968), and question its use by the Court of Appeals in Thomas v. Frost, supra. Should, however, the plaintiff be unable to prove the required knowledge on the part of the publisher, the rule as set forth in the above cases requiring pleading and proving of special damages is not changed.

In Herrmann v. Newark Morning Ledger Co., 48 N.J.Super. 420, 138 A.2d 61 (1958), the succinct conclusion of the well reasoned opinion was:

'* * * (W)e conclude and hold that it is not necessary to plead or prove special (pecuniary) damages to recover for the publication here complained of by mere reason of the fact that reference to extrinsic facts will be necessary to expose the defamatory impact of the article upon the plaintiff. General damages will be presumed, as in any case of a libel, or written defamation.' 138 A.2d at 75.

We agree with the New Jersey Court, except that we do not apply this rule unless the publisher knew or should have known of the extrinsic facts necessary to make the statement defamatory. In other words, the plaintiff must either plead and prove special...

To continue reading

Request your trial
21 cases
  • Marchiondo v. New Mexico State Tribune Co., s. 5059
    • United States
    • Court of Appeals of New Mexico
    • 22 December 1981
    ...(4) some falsity which prejudices the plaintiff in his profession or trade; or (5) unchastity (of a woman). Reed v. Melnick, 81 N.M. 608, 471 P.2d 178, 49 A.L.R.3d 156 (1970); Dillard v. Shattuck, 36 N.M. 202, 11 P.2d 543 (1932); Comment, Torts-Libel and Slander-The Libel Per Se-Libel Per Q......
  • Bitsie v. Walston
    • United States
    • Court of Appeals of New Mexico
    • 25 July 1973
    ...obvious import. Language will receive an innocent interpretation where fairly susceptible to such an interpretation. Reed v. Melnick, 81 N.M. 608, 471 P.2d 178 (1970); Perea v. First State Bank, 84 N.M. 326, 503 P.2d 150 (Ct.App.1972). The newspaper story in this case does not plainly and o......
  • Smith v. Durden
    • United States
    • New Mexico Supreme Court
    • 5 March 2012
    ...there are good reasons for abolishing the distinction between [them].” (third alteration in original) (quoting Reed v. Melnick, 81 N.M. 608, 612, 471 P.2d 178, 182 (1970), overruled on other grounds by Marchiondo II)); see also Eaton, supra, at 1434 (criticizing distinctions between libel a......
  • Saenz v. Playboy Enterprises, Inc.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 16 January 1987
    ...in the form of pecuniary loss, or else that the defendant knew of extrinsic facts which made his statement defamatory. Reed v. Melnick, 81 N.M. 608, 471 P.2d 178 (1970). Defendants contend that Saenz has not sufficiently pled special damages since he has not alleged a dollar amount for This......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT