Burr v. Winnett Times Pub. Co.

• Decision Date: 16 July 1927
• Docket Number: 6120.
• Citation: 258 P. 242,80 Mont. 70
• Parties: BURR v. WINNETT TIMES PUB. CO. et al.
• Court: Montana Supreme Court

258 P. 242

80 Mont. 70

BURR v. WINNETT TIMES PUB. CO. et al.

No. 6120.

Supreme Court of Montana

July 16, 1927

Appeal from District Court, Petroleum County; Edgar J. Baker, Judge.

Action by George A. Burr against the Winnett Times Publishing Company and another. From a judgment dismissing his action plaintiff appeals. Reversed and remanded, with directions.

Belden & Dekalb and Merle C. Groene, all of Lewistown, for appellant.

Ralph J. Anderson, of Lewistown, for respondents.

MYERS J.

This is an action for alleged libel per se. No special damages are alleged. It is agreed by counsel for each side that the alleged libels must be libels per se or plaintiff cannot recover. Counsel for plaintiff (appellant), in their brief say:

"We submit this matter to this court upon the proposition that the publications complained of are libelous per se and, if this court does not agree with us in this respect, the judgment of the lower court must be affirmed."

Plaintiff was a farmer and a member and the chairman of the board of county commissioners of Petroleum county. He was a candidate for nomination to succeed himself, as a member of the board. The defendant corporation published, in Petroleum county, the Winnett Times, a weekly newspaper. Defendant Doherty was editor and manager of the newspaper.

In his amended complaint, plaintiff alleged the publication in the newspaper, at different times, of five articles, alleged to have been published of and concerning him. They are set out in full in the amended complaint. He alleged further that each of the articles was false, unprivileged, and defamatory; that each reflected upon him as a member of the board of county commissioners and as chairman thereof and as an individual seeking renomination for the office of county commissioner; and that each was designed for the purpose of injuring him as chairman of the board and was published in an effort to charge him with crookedness and to injure him in his occupation and to defeat him at the primary election. He alleged and prayed for the recovery of general damages.

Defendants filed a motion to strike from the amended complaint and, at the same time, a general demurrer. The motion to strike sought to strike from the complaint, paragraph by paragraph, practically all of the body of the pleading, including all of the articles of publication set forth therein and all allegations in regard to them, which would completely emasculate the complaint and leave it a mere skeleton. The motion was based on the contention that each of the paragraphs moved to be stricken was irrelevant and immaterial and did not tend to state a cause of action or aid in the statement of a cause of action attempted to be pleaded. The motion, we consider, was too sweeping and, in effect, undertook to perform the office of a demurrer. Some of the paragraphs moved to be stricken should have been stricken; others, not. However, as no point is made of that, we shall not go into detail.

The motion and the demurrer were submitted together. The court first sustained the motion and then sustained the demurrer. Plaintiff failed to amend or plead further. His default was entered and the court rendered judgment against him, dismissing the action and awarding costs. Plaintiff appealed and assigns as error the rulings of the court in sustaining the motion to strike and sustaining the demurrer and its action in rendering judgment.

Some of the paragraphs of the complaint which set forth the alleged libelous articles and the allegations in regard thereto were properly stricken, but not all. We shall test each of such paragraphs with relation to the motion to strike or the demurrer, as we may deem appropriate. The alleged libelous articles being all set forth in one intended cause of action, of course if any one of them, with the allegations in regard thereto, is sufficient to state a cause of action, it should have been allowed to stand and the demurrer should not have been sustained.

"Libel is a false and unprivileged publication by writing, printing, * * * or other fixed representation to the eye, 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, Rev. Codes 1921.

Libel is libel per se or per quod. * * * " 'Per se' means 'by itself; simply as such; in its own * * * relations,' * * * and that, in connection with slander and libel, the term is applied to words which are actionable because they, of themselves, without anything more, are opprobrious. * * * In order to render a publication actionable per se, the language used therein must be susceptible of but one meaning, and that an opprobrious one." Rowan v. Gazette Prtg. Co., 74 Mont. 326, 239 P. 1035. It is so held also in Manley v. Harer, 73 Mont. 253, 235 P. 757; Brown v. Independent Pub. Co., 48 Mont. 374, 138 P. 258; and other decisions of this court.

"The opprobrious words are to be construed according to their usual, popular and natural meaning and common acceptation, that is, in the sense in which persons out of court and of ordinary intelligence would understand them." Daniel v. Moncure, 58 Mont. 193, 190 P. 983.

In an action for slander, the alleged defamatory matter is to be construed as an entirety and with reference to the remaining portions of the conversation. Daniel v. Moncure, supra. The same rule applies to written or printed language, in actions for libel. Cooper v. Romney, 49 Mont. 119, 141 P. 289, Ann. Cas. 1916A, 596; Brown v. Independent Pub. Co., supra.

"An innuendo in pleading is an explanation of the defendant's meaning by reference to some antecedent matter. It is mostly used in actions for libel and slander. * * * It is a statement by the plaintiff of the construction which he puts upon the words, himself, and which he will induce the jury to adopt at the trial. Where a defamatory meaning is apparent on the face of the libel, itself, no innuendo is necessary." Newell on Slander and Libel (3d Ed.) 754.

"If the language is not slanderous per se, the innuendo cannot make it such." Daniel v. Moncure, supra. The same rule applies to actions for libel. Cooper v. Romney, supra; Manley v. Harer, supra; Brown v. Independent Pub. Co., supra; Paxton v. Woodward, 31 Mont. 195, 78 P. 215, 107 Am. St. Rep. 416, 3 Ann. Cas. 546.

If special damages are not pleaded in an action for libel, the complaint does not state a cause of action, unless the alleged libel be libel per se. Manley v. Harer, supra; Brown v. Independent Pub. Co., supra.

Judged by the foregoing rules and definitions, we proceed to test each of the alleged libelous articles set forth in the amended complaint.

The article set forth in paragraph VII of that pleading we do not consider has any element of libel. It is merely an expression of opinion of plaintiff's intellectual caliber. It casts no aspersion upon him. Even impliedly, it does not say he is not a solid, substantial, or successful farmer, and if it had said so it would not have been libelous. We fail to see in it anything calculated to injure plaintiff, as an individual, official, or farmer.

The article set forth in paragraph VIII is a criticism of certain alleged official acts of plaintiff; an expression of opinion as to the soundness of his judgment, as an official; but it contains no libel. It refers to his "entering a bill," in the sum of $25.60, against the county, for certain services, but it does not say the bill was allowed; does not say he got the money or any part of it. It does not charge that plaintiff illegally obtained any county money or tried to do so. It charges nothing opprobrious.

The article set forth in paragraph X contains nothing that should be considered libelous. It does not mention plaintiff, and it mentions only impliedly the board of county commissioners. It merely questions the business judgment of the board, in the expenditure of county funds.

The article set forth in paragraph IX perhaps justifies more serious consideration than did any of those we have discussed. It names plaintiff and refers to "the interesting way he has of prying up the lid of the county 'strong box.' " Further, it likens him, perhaps to Kaiser Bill (meaning, we suppose, the former German emperor). Plainly, the latter allusion is only sarcasm and is not libelous. The statement with reference to "prying up the lid of the county 'strong box' " we cannot say has only one meaning and that an opprobrious one. It is vague, ambiguous, uncertain as to its meaning. It might mean any one of different things. Literally, the county has no "strong box," so far as we know. We assume by the expression was meant the county treasury, the place where county funds are kept. The language used may mean that plaintiff, in connection with the other members of the board, was reckless, extravagant, or injudicious in the expenditure of county funds. It may mean he had voted for allowance of claims against the county, through favoritism or without adequate value having been received by the county. It might have been intended to mean he raided the treasury, for his own benefit. We do not know...