Comer v. Advertiser Co.

• Decision Date: 03 April 1911
• Citation: 172 Ala. 613,55 So. 195
• Parties: COMER v. ADVERTISER CO. ET AL.
• Court: Alabama Supreme Court

55 So. 195

172 Ala. 613

COMER v. ADVERTISER CO. ET AL.

Supreme Court of Alabama

April 3, 1911

Rehearing Denied May 5, 1911.

Appeal from City Court of Birmingham; Charles A. Senn, Judge.

Action by B. B. Comer against the Advertiser Company and others. From a judgment granting insufficient relief, plaintiff appeals. Reversed and remanded.

Simpson and Mayfield, JJ., dissenting in part.

The complaint was as follows:

"Count 1. Plaintiff claims of defendant $25,000 damages for falsely and maliciously publishing of and concerning him in a newspaper published in Montgomery, Alabama, called the Montgomery Advertiser, the following matter with intent to defame the plaintiff, viz.: 'Methods of Comer as a "Business" Man. Damaging Affidavit Made by E. P Dickert, of Birmingham, a First Cousin of the Radical Candidate. (Communicated.) An affidavit received yesterday from E. A. Dickert, a prominent citizen of Birmingham and a first cousin of Hon. B. B. Comer, rather tends to show that this gentleman is hardly the proper man to sit in a judicial capacity as an unbiased judge. Just read and consider for yourself. "State of Alabama, Jefferson County. Before me, the undersigned, a notary public in and for the said county and state, personally appeared E. A Dickert, who, being duly sworn, says that he is acquainted with and is a first cousin of Mr. B. B. Comer, of Birmingham, Ala., and that in the month of October 1900, he was section foreman for the Louisville & Nashville Railroad Company, in the city of Birmingham, Ala., and as such made certain repairs to the railroad tracks belonging to the Avondale Cotton Mills Company, Avondale, Ala., which repairs, according to contract, were to be charged by the railroad company against the said Avondale Cotton Mills Company, in the amount reported by affiant to the railroad company. Affiant further says that upon completion of the work upon the Avondale Cotton Mills Company's track he was approached by Mr. B. B. Comer, president of said mill company, and that said B. B. Comer inquired of him the approximate total amount of said repairs. Affiant further states that he informed Mr. Comer that the approximate amount of said repairs would be $30, and that thereupon said B. B. Comer requested him to come into his private office, and stated to affiant that he would there pay to him in cash the approximate amount for making the repairs as stated above, instead of the Louisville & Nashville Railroad Company. Affiant further states that he told Mr B. B. Comer that he could not do business in this manner, and that said B. B. Comer would have to pay the money to the Louisville & Nashville Railroad Company. Affiant further states that B. B. Comer replied to him that if affiant proposed to do business in this manner that he (the affiant) would die a poor man. Affiant further states that he replied to Mr. B. B. Comer that under those circumstances he would die a poor man, as he would not get money in this manner. [ Signed] E. A. Dickert. Sworn to and subscribed before me this 9th day of April 1904. Marie E. Jones, N. P. [ Seal]" '--on the 10th day of April, 1904.

"Count 2. Plaintiff claims of defendant the further sum of $25,000 as damages, for that plaintiff was on, to wit, the 10th day of April, 1904, a candidate for the Democratic nomination for the office of president of the Railroad Commission of Alabama, in a primary election then about to be held on the 12th day of April, 1904, and the defendant did falsely and maliciously, and with intent to defame the plaintiff, and for the purpose of showing that the plaintiff was unfit for said office, and to induce electors not to cast their votes for plaintiff at said election, publish on the 10th day of April, 1904, of and concerning him in a circulating newspaper, called the Montgomery Advertiser, the matter set forth in the original count of the complaint, meaning by said matter to impute to the plaintiff a want of personal integrity, and to induce the electors in said election to believe him unfit for said office, meaning by said publication to charge the plaintiff with the dishonest act of having advised and counseled and having abetted an employé of the Louisville & Nashville Railroad Company to defraud said railroad company, by collecting for his own use and benefit money belonging to said railroad company, and concealing the fact that said money was due his said employer, the Louisville & Nashville Railroad Company, and meaning further to charge the plaintiff with having offered to aid and abet the said employé in the perpetration of a fraud on his employer, whereby, the plaintiff was greatly damaged, by being held up before the public as a dishonest man, his feelings were hurt and injured, and he was subject to public mortification, and he suffered loss to his reputation or good name, all in the sum of $25,000, for which plaintiff sues, and which he claims as and for compensatory damages; the plaintiff not including in his claim and not suing for punitive damages, but seeks to recover under this count compensatory damages, including such presumptive damages as the law may presume he has sustained for injury to his reputation for and on account of the wrongful acts of the defendants."

The agreement noted is as follows: "The plaintiff, by leave of the court first had and obtained, amends his complaint filed herein in the manner following, to wit: (1) By adding at the end of the original complaint, containing one count, the following averments: 'And plaintiff avers that at the time of said publication he was a candidate for the Democratic nomination for the office of president of the Railroad Commission of Alabama, then about to be holden, on, to wit, April 11, 1904, throughout the state of Alabama, and that said publication was made concerning him and his candidacy. But the plaintiff does not claim from the defendant any sum for and on account of punitive or exemplary damages, but seeks to recover under this complaint only compensatory damages, including such presumptive damages as the law may presume he may have sustained for injury to his reputation for and on account of the wrongful act of the defendant in publishing said article.'

"Agreement of counsel: It is agreed that this may be treated as a return from the certiorari, and that the foregoing amendment be made a part of the record; and it is further agreed that the cause was tried in the court below as one for compensatory damages, with a waiver by plaintiff of punitive damages signed by counsel."

Charge 2 is as follows: "If the jury believe from the evidence that the article complained of was published or caused to be published by the defendant the Advertiser Company in good faith, with the honest belief that it was true, and relying on the representation made to it by a reputable citizen and elector, known by it to be such, and for the sole purpose of advising and informing the electors of Alabama of the fitness and qualification of the plaintiff for the office he was then seeking at their hands when said article was published, and without express malice, the jury may consider such fact in litigation of plaintiff's damages, if they find for him."

Frank S. White & Sons, E. H. Cabaniss, and S.D. Weakley, for appellant.

Steeiner, Crum & Weil, Tillman, Bradley & Morrow, and A. G. & E. D. Smith, for appellees.

SIMPSON J.

This action is by the appellant for damages claimed to have been suffered from the publication of a certain article in the Montgomery Advertiser, a newspaper.

The first and second counts of the complaint, including said article and including the agreed statement, at the end of the record, in regard to amendment of complaint, will be set out in the statement of this case by the reporter.

In the court below the general affirmative charge was given in favor of the plaintiff, against the Advertiser Company, and the jury brought in a verdict for one cent.

The first assignment of error insisted on is to the giving of charge 2, at the request of the defendant the Advertiser Company; the insistence being that it was not proper for the jury to consider the mitigating circumstances in this case, because the plaintiff expressly waived all claim for exemplary or punitive damages and claimed only compensatory damages.

Section 13 of our Constitution guarantees to our citizens, for an injury to person or reputation, a remedy by due process of law, and section 3746 of the Code of 1907 provides that: "In all actions of slander and libel, the truth of the words spoken or written, or the circumstances under which they were spoken or written may be given in evidence, under the general issue, in mitigation of damages." Said section merely prescribes a rule of evidence, and does not in the least deny the right of remedy by due process of law. Consequently the statute does not violate said provision of the Constitution.

Mr. Townshend, in his work on Libel and Slander, states that "all the circumstances connected with the publication complained of should go to the jury." Townshend on Libel & Slander (4th Ed.) § 415, page 683.

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