CHASE v. N.M. PUB. CO.

• Decision Date: 22 March 1949
• Docket Number: No. 5149,5149
• Citation: Chase v. N.M. Pub. Co., 53 N.M. 145, 203 P.2d 594, 1949 NMSC 9 (N.M. 1949)
• Parties: CHASE v. NEW MEXICO PUB. CO. et al.
• Court: New Mexico Supreme Court

53 N.M. 145

203 P.2d 594

CHASE

v.NEW MEXICO PUB. CO. et al.

No. 5149.

Supreme Court of New Mexico.

Jan. 26, 1949.

Rehearing Denied March 22, 1949.

[203 P.2d 594, 53 N.M. 146]

Quincy D. Adams, of Albuquerque, and Bigbee & Kool, of Santa Fe, for appellant.

Seth & Montgomery and Wm. R. Federici, all of Santa Fe, for appellees.

COMPTON, Justice.

Appellant instituted this proceeding against the New Mexico Publishing Company and Frank C. Rand, Jr., for libel.The claimed libel is an editorial published by appellee, New Mexico Publishing Company, April 19, 1947, as follows:

' Discriminating Taste

'One of our esteemed contemporaries, which shall be nameless, has made some unkind remarks about the 'high-falutin taste' of Revenue Commissioner Victor Salazar-all because he had the state buy him a $2,700.Buick, 18 feet long.

'After all, it seems to us, the taxpayers owe something to a selfless public servant who left the management of a highly profitable insurance business to starve along on a piddling $7,500. a year.

'And anyone can imagine how severely that insurance business must have suffered since Mr. Salazar placed himself in a position to dictate a large share of the state's insurance petronage.

'Such sacrifice would be too painful to contemplate if it were not for Mr. Salazar's well known cultural attainments, which enable him to be philosophical about his plight.These establish him as truly the 'man of discriminating taste' for whom those 18-foot $2,700.Buicks were designed especially.

'Take, for example, his charming refinement in refusing to have the car smeared all over with those messy, garish 'For Official Use Only' signs that some other state cars have.Remember, too, that he ordered the quiet black number.No maroon firewagons for him.

'Mr. Salazar's nice taste shows mainly, though, in his principal hobby.He is a noted collector of steel engravings of past U. S. Presidents, printed in subdued shades on U. S. treasury paper.

'It is said that his judgment and skill in this collection have drawn high expressions of admiration from such connoisseurs of the art as Johnny Michael, Joe Montoya and Ted Chase.Others, however, fear that his love for the hobby may react to the detriment of his official work.

'None, however, will sneer at this taste or ability.And it would be an uncomprehendingsoul indeed who would cavil at supplying a modest Buick for such as he.'

The complaint alleges that the editorial was read, understood, and interpreted bythe general public throughtout New Mexico in the light of the following facts and circumstances known to the reading public:

'(1)Plaintiff since January, 1935 has been and still is an attorney-at-law, duly licensed, and (except from July 15, 1944 to December 1, 1946) practicing his profession at Santa Fe and Albuquerque in the state of New Mexico and at no time has he been engaged in any other pursuit or occupation in said state.

'(2) During the period from January 1, 1941 to July 15, 1944he was Attorney General of said state.While Attorney Generalhe was indicted by a grand jury of Santa Fe County upon a charge of agreeing to accept a bribe and was also indicted by a federal grand jury in Santa Fe upon a charge of violating the bankruptcy laws.While Attorney Generalhe was also severely criticised in the defendants' newspaper for allegedly improper acts and conduct of his office and, in particular, on or about July 6, 1944, there was published in said newspaper by the defendantsan article referring to the plaintiff and one Henry Hughes, who, it was stated in substances, had admitted conspiring with plaintiff to accept a bribe and in which there was used a sub-headline 'One Party Conspiracy', said article insinuating that plaintiff was also guilty of conspiracy.

'(3) There have been published by the defendants recently and from time to time in said newspaper, of and concerning Victor Salazar, Johnny Michael and Joe Montoya, the persons with whom plaintiff's name was associated in the editorial above quoted, various articles and editorials as follows:

'(a) Stating in substance or insinuating that Victor Salazar and Johnny Michael had obtained money from the State of New Mexico in an improper or illegal manner.

'(b) Stating in substance or insinuating that Joe Montoya had used his office as a member of the legislature as an excuse to avoid service in the United States Army during war-time.

'(c) And in particular, during the month of March, 1947, that Joe Montoya had made away with a bill passed by the New Mexico legislature and should be prosecuted therefor.'

The sufficiency of the complaint to state a claim upon which relief can be granted is challenged by motion to dismiss.It is from an order granting the motion that the case is brought here for review.

The parties are in accord that the complaint is insufficient unless the publicationis libelous per se, no actual or special damages having been alleged.

'Libel per se' is defined as:

'Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or to hinder virtuous men from associating with him.'

Cooley on Torts (3d Ed.) 400;Colbert v. Journal Pub. Co., 19 N.M. 156, 142 P. 146;Ward v. Ares, 29 N.M. 418, 223 P. 766.

The term 'per se' means by itself; simply as such; in its own nature without reference to its relation; and in connection with libel, the term is applied to words which are actionable because they of themselves, without anything more, are opprobrious.Marland Refining Co. v. Harrel, 167 Okl. 548, 31 P.2d 121;Tulsa Tribune Co. v. Kight, 174 Okl. 359, 50 P.2d 350, 353.

'Defamatory words may be divided into those that are actionable per se, and those that are actionable per quod.Words which, upon their face and without the aid of extrinsic proof, are injurious are defamatory per se; but if the injurious character of the words appears, not from their face in their usual and natural signification, they are not defamatory per se, and in such cases the words are said to require an innuendo.* * * Words which are defamatory per se do not need an innuendo, and, conversely, words which do need an innuendo are not defamatory * * *.Words used in a publication, even if not actionable in and of themselves, may become actionable, if, under the circumstances and in connection in which they were used, they convey a hidden and covert defamatory meaning andare understood in such sense by the...