Advertiser Co. v. Jones

• Decision Date: 06 July 1910
• Citation: 169 Ala. 670,53 So. 759,169 Ala. 196
• Parties: ADVERTISER CO. v. JONES.
• Court: Alabama Supreme Court

53 So. 759

169 Ala. 196, 169 Ala. 670

ADVERTISER CO. v. JONES.

Supreme Court of Alabama

July 6, 1910

In Response to the Application for a Rehearing, Dec. 22, 1910.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Campbell Jones against the Advertiser Company for libel. From a judgment for plaintiff for $5,000, defendant appeals. Reversed and remanded.

The pleadings and the facts sufficiently appear in the opinion of the court. The following charges were refused to the defendant: (4) "Implied malice, as that term is used in connection with this transaction, means a conscious disregard of the truth or falsity of the publication on the part of the defendant, or those responsible for the publication, at or before the publication was made." (7) "If the jury believe from the evidence that the publication of the article alleged to be libelous did not proceed from motives of actual malice on the part of the defendant or his representative and if they further believe from the evidence that the publication was not made under such circumstances and conditions as that the law would imply malice, then it cannot be said that the plaintiff has made out its case as alleged in the complaint, and in that event you should return a verdict in this case in favor of the defendant." (8) "The court charges the jury that, even though you may find that the article complained of was falsely published yet you have a right to look at all the facts and circumstances in connection with the publication of the article, and the conduct of the parties in connection therewith, and what subsequently transpired in relation thereto, as shown from the evidence, in mitigation of damages." (9) "If the jury believe from the evidence in this case that the publication of the article alleged to be libelous did not proceed from motives backed by malice on the part of those responsible for its publication and if they further believe from the evidence that the publication was not attended with such conditions as that the law would imply malice, as those conditions have been defined to you by the court, then they must find for the defendant." (12) "Although you may believe from the evidence that the article complained of was false, yet if you are reasonably satisfied from the evidence that it was published in good faith, that its falsity was due to mistake or misapprehension, and that a full correction and retraction of such false statement was published within five days in the Montgomery Advertiser after the service of notice or demand upon it to do so, in as conspicuous a place and type as the original article was published, then, although you may find that the plaintiff was entitled to recover, you may, in your discretion, return a verdict for only nominal damages."

Steiner Crum & Weil and A. A. Wiley, for appellant.

Lee H. Weil, Hill, Hill & Whiting, and S. H. Dent, Jr., for appellee.

MAYFIELD J.

This action is for libel. The complaint at one time contained a great number of counts. All except counts 7 and 8 were eliminated, of which appellant cannot complain, because of no possible injury to it. The remaining counts, 7 and 8, were both in Code form, and declared on the same publication. Count 7 declared on only a part of the publication, while count 8 set out the publication in extenso. The alleged publication contained, among other matters, the following, as headlines:

"Will File Grave Charges Against a City Official.

"Street Superintendent Accused of Misconduct.

"Jones Sold City's Gravel."

Then follows an editorial or synopsis of Brown's charges, a part of which is as follows: "Briefly stated, Mr. Brown charges that Mr. Jones sold the city's gravel to the Country Club, had the gravel loaded into the city's wagons by city convicts and hauled to the clubhouse by city teams, where it was laid by negro employés of the city, thereby competing with him, Mr. Brown, as a grading contractor, and that Mr. Jones collected the money impliedly for his own use." Then followed the statement by or interview with Mr. Brown, which is too long to be here set out. Each of these counts declared upon the above, among other things indicated, as a libelous publication in the defendant's daily newspaper of the 20th day of March, 1905, which publication is alleged and shown to have a large circulation in the city and county of Montgomery, in which city plaintiff lived, and of which he was an officer; all of which was alleged, and by the jury found, to be, to plaintiff's great damage in the sum of $5,000. This publication, if false as it is alleged to be, was, under all the authorities, per se libelous. See Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788; Iron Age Pub. Co. v. Crudup, 85 Ala. 519, 5 So. 332; Wofford v. Meeks, 129 Ala. 358, 30 So. 625, 55 L. R. A. 214; Hereford v. Combs, 126 Ala. 369, 28 So. 582--which cite many other cases in this state. See, also, Dauphiny v. Buhne, 153 Cal. 757, 96 P. 880, 126 Am. St. Rep. 136, a case in which the facts are very similar to those in the case at bar, in which the court spoke as follows: "A charge against a public official importing want of integrity or corruption in the discharge of his official duties is actionable of itself."

This court, speaking through Stone, C.J., in the case of Gaither v. Advertiser Co., 102 Ala. 461, 14 So. 789, quoted from a New York case as follows: "Words are actionable which directly tend to the prejudice of any one in his office, profession, trade, or business, in any lawful employment by which he may gain a livelihood"--and then added: "The above is the rule when one is falsely charged verbally with being incapacitated for the duties of an office, trade, or business. For a much stronger reason is an action maintainable when the charge is made public in a written or printed publication. The reason is that printed or written slander is uttered with greater deliberation, is more widely circulated, and is placed in an enduring form." There can be no doubt that the natural and unaided import of the publication complained of in this case was to assail the integrity of, and to imply corruption on the part of, plaintiff, both as a public officer and as an individual. We can see no escape from this conclusion. The language used in this case is more severe and objectionable than were the words employed in many of the cases above cited, which were held to be actionable per se. The language held to be such in Gaither's Case, above, was much less severe or objectionable. It was as follows: "The showing simply proved Mr. Gaither to be a man of small business capacity." True, this was held not to assail Gaither's integrity, but to charge personal incapacity, which was held to be actionable per se, and therefore not to require any allegation as to special damages to support the action.

Each count was subsequently amended by allegations as to a demand by plaintiff upon defendant for a retraction of the publication, in view of the recent statute of this state upon the subject of retractions of libel. Each count being in Code form, and in compliance with the statute, and the alleged libel being such per se, it follows that each count stated a good cause of action and was not demurrable; and that no allegation was necessary as to special damages. The cause was tried upon the general issue alone, as to those two counts (7 and 8). No special pleas of justification--that is, alleging the truth of the matter published or that the publication was a privileged one--appear to have been offered or filed. The general issue in such case only puts in issue the fact of publication of the matter as alleged. The proof conclusively showed that the article was published as alleged--in fact, this was not denied, except formally by this plea, but was on the trial admitted and conceded by defendant. This being true, the plaintiff was of course entitled to the general affirmative charge as for nominal damages. Therefore, the only question for the determination of the jury, under the issues and the proof, was the amount of damages.

While evidence tending to prove the truth of the matter published and that the publication was privileged, was admissible under the general issue alone upon which it was tried, such evidence was only admissible for the purpose of mitigating the damages, and not in bar of the right of recovery. In the recent case of Ferdon v. Dickens, 161 Ala. 181, 49 So. 893, we reviewed at some length our constitutional, statutory, and code provisions, together with the former decisions of this court, as to pleadings and proof in civil suits for libel and slander, and therein announced the following conclusions: "We hold that a special plea in an action of libel or slander, which alleges or sets up a state of facts showing that the alleged slander or libel was privileged, would be a complete defense; but under our statutes, this, as well as a plea of justification alleging the truth of the charge or publication, if intended as a bar or a complete defense, and not simply one in mitigation of damages, should be specially pleaded, and it should set forth facts sufficient to show that the publication or charge was made on a privileged occasion or under circumstances and conditions which made it privileged in law, with a denial that it was published with malice, unless it be a case where the words are absolutely privileged. This plea is in the nature of a plea in confession and avoidance. It is essential that a special plea in libel and slander, in order to constitute a complete defense, should answer the whole ground of action relied upon in the complaint. 25 Cyc. 456-458. At common law the defendant could not plead several defenses to the same part of the declaration, nor to the same entire...