Arizona Pub. Co. v. Harris

• Decision Date: 04 June 1919
• Docket Number: Civil 1666
• Citation: 20 Ariz. 446,181 P. 373
• Parties: ARIZONA PUBLISHING COMPANY, Appellant, v. CHARLES W. HARRIS, Appellee
• Court: Arizona Supreme Court

181 P. 373

20 Ariz. 446

ARIZONA PUBLISHING COMPANY, Appellant, v. CHARLES W. HARRIS, Appellee

Civil No. 1666

Supreme Court of Arizona

June 4, 1919

APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge. Affirmed.

STATEMENT OF FACTS BY THE COURT.

The plaintiff (appellee) recovered a judgment for damages in the sum of six thousand dollars against the defendant (appellant) in an action for libel. The defendant appeals from the judgment and the order overruling a motion for a new trial. The defendant owns and publishes a newspaper in the city of Phoenix of wide circulation in the state of Arizona, and other states in the Union, known as the "Arizona Republican." The charge made in the complaint is that the defendant maliciously published in the "Arizona Republican" of and concerning the plaintiff the following article: "Resignation of Colonel Harris as Adjutant General Demanded in Letter by Governor Campbell.

"Thomas E. Campbell yesterday demanded the resignation of Adjutant General Charles W. Harris of the state of Arizona. The demand is that he tender his resignation to go into effect on August 1.

"Adjutant General Harris verbally stated to Malcolm Frazier, secretary of the Governor, that he would not resign.

"Governor Campbell states that on August 1, when the First Arizona goes into federal service, there will be no need of an adjutant general, but it is reported that the demand for the resignation was precipitated by certain reports made by Colonel Harris regarding strike situations, which reports have been characterized as 'seditious.'"

It is further alleged in the complaint that the plaintiff, at the time of the publication of said article, and for several years prior thereto, was the duly appointed and acting adjutant-general of the state of Arizona, and that by the use and publication of the said words the defendant intended to assert and intended to be understood as charging and asserting, and by the readers of said newspaper was understood as charging and asserting, that plaintiff, as such adjutant-general, had made certain seditious reports regarding the strike situation at various points in the state of Arizona. It is further alleged in the complaint that the article so published was false, malicious and scandalous, and was published through malicious motives, without probable cause, and for the purpose of vexing, harassing, injuring and degrading the plaintiff personally, officially and politically. Actual damages in the sum of five thousand dollars and exemplary damages in the sum of five thousand dollars are demanded in the complaint.

The defendant demurred to the complaint, which demurrer was overruled. By its amended answer the defendant admits the publication of the alleged libelous article, but "denies that the defendant intended to and did charge and assert, and intended to be understood as charging and asserting, that plaintiff, as such adjutant general, or otherwise, had made certain or any seditious reports regarding the strike situation, or in relation to any other matter. It denies that said publication of said news item set out as aforesaid by the plaintiff in his complaint was printed, published, and circulated by the defendant through malicious motives, or without probable cause, or for the purpose of vexing harrassing, injuring, or degrading the plaintiff personally officially, or politically, or otherwise.

"Defendant further says that it was at the date of said publication, and for some time prior thereto, known by the public generally that the Governor of Arizona desired the vacation by plaintiff of the office of adjutant general, and had requested, or was about to request, the plaintiff to resign the same; that there was a controversy between the Governor of the state and the plaintiff as to the legal tenure of the office of the adjutant general, and as to the power of the Governor to remove the plaintiff from that office with or without cause, and to appoint a successor to the plaintiff therein, all of which was involved in and constituted a public official proceeding, in which the public was concerned, and of which the public generally had the right and desire to be promptly, impartially, and accurately informed; that the defendant engaged in its business of publishing, among other matter, the news and accounts of public business by and through its agents and reporters in good faith, made inquiry at the proper official sources thereof for information concerning said public proceedings and with a view of publishing the same for the information of the public; that upon such inquiry it was communicated to a reporter of defendant's said newspaper that the Governor had officially demanded of the plaintiff his resignation of the office of adjutant general to take effect on the 1st day of August; that the plaintiff had stated verbally to the private secretary of the Governor that he would not resign that it was reported that such demand for the plaintiff's resignation of said office was precipitated by certain official reports and statements made by the plaintiff regarding strike and other situations, and that such reports and statements were by those who reported said statements characterized as 'seditious'; that said information was obtained and communicated to the defendant's reporter as public official transactions relating to public official proceedings; that in entire good faith, and with no knowledge that any part of said information was false, if in fact it were false, and without any malice whatsoever toward the plaintiff, in his official or private capacity, and without any purpose to injure, annoy, or harass the plaintiff, but actuated solely by a desire to give impartially and accurately the news of the public official proceedings relating to the matter, defendant did publish the news item of which a copy is set out in the complaint, in its issue of the Arizona Republican bearing date of July 29th, 1917, of the publication of which plaintiff complains."

Messrs. Kibbey, Bennett & Jenckes, for Appellant.

Mr. A. S. Hawkins and Mr. James P. Lavin, for Appellee.

OPINION

BAKER, J.

(After Stating the Facts as Above). The defendant contends that the complaint does not state facts sufficient to constitute a cause of action, and therefore it was error to overrule the demurrer. This claim is predicated upon the proposition that the publication was not libelous per se. For the purpose of determining the question, all matters well pleaded must be taken as admitted, and hence in this case it must be held that the demurrer admits that the plaintiff was the adjutant-general of the state, and that the statements contained in the published article with respect to him were false and were published maliciously.

Defamatory publications of an officer with respect to his office are actionable per se, if untrue. 13 Am. & Eng. Ency. of Law, pp. 355, 356, and notes on same at pages 357-360; Townsend on Slander and Libel, pp. 221, 223, 232 et seq.; Newell on Slander and Libel, pp. 176-178; Belo v. Fuller, 84 Tex. 450, 31 Am. St. Rep. 75, 19 S.W. 616; Houston Printing Co. v. Moulden, 15 Tex. Civ. App. 574, 41 S.W. 381; Jarman v. Rea, 137 Cal. 339, 70 P. 216.

"Sedition" has been defined to be:

"The raising of commotions and disturbances in the state; it is a revolt against legitimate authority." 3 Bouvier's Law Dictionary, p. 3033 (Sedition).

The rule is well settled that the words in the publication are to be construed according to their ordinary meaning, and as it is believed they would be understood by those who read them, considered in the light of the connection in which they are used, and the subject matter of the article. 25 Cyc. 355; 13 Am. & Eng. Ency. of Law, pp. 347-353.

It is not necessary that the publication, to be actionable, should make a charge in direct or express terms:

"To maintain an action for libel or slander it is not necessary that the charge should be direct and positive; the imputation may be inferred from an indirect communication; as where defendant 'expresses a suspicion, or institutes a comparison, or delivers the words as matter of hearsay . . . or answer, or exclamation, or uses disjunctive or adjective words, or speaks ironically.' Insinuations may be as defamatory as direct assertions, since the effect and tendency of the language used, and not the form, is the criterion." 25 Cyc. 360.

Having regard to these general principles of the law of libel, we are of the opinion that the language used in the publication is fairly susceptible of a construction which renders it libelous per se, and that it would be so understood by readers generally. The last sentence of the publication, " . . . but it is reported that the demand for the resignation was precipitated by certain reports made by Colonel Harris regarding strike situations, which reports have been characterized as 'seditious,'" is to our minds equivalent to the assertion that Colonel Harris had made reports which were seditious, and was, in effect, a charge against him of sedition. The imputation of crime is unmistakable in the language, and it seems altogether unreasonable to say that the expression conveys only an innocent meaning. There can be no doubt but that, had the charge been presented in a direct form, the article would have been libelous, and it is none the less libelous because the charge is stated in a form indirect or oblique.

" . . . A defamatory article which would be libelous per se if its matter was directly stated does not lose its quality in this regard because it is couched in the form of an interview with another person, or because it seeks to avoid its otherwise obvious character as a libel per se by the statement that it is...