Comer v. Age-Herald Pub. Co.

• Decision Date: 02 July 1907
• Parties: COMER v. AGE-HERALD PUB. CO.
• Court: Alabama Supreme Court

44 So. 673

151 Ala. 613

COMER v. AGE-HERALD PUB. CO.

Supreme Court of Alabama

July 2, 1907

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

Action by Braxton B. Comer against the Age-Herald Publishing Company. From a judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed and remanded.

Simpson Haralson, and Anderson, JJ., dissenting in part.

This was an action begun by Braxton B. Comer for damages for libel growing out of a communication published in the Birmingham Age-Herald with the intent to defame plaintiff. The publication is as follows: "Comer's Idea of Honesty Peculiar. Wanted to Pay His Cousin and "Do" the Railroads. An Affidavit is Submitted. Offered to Pay E. A Dickert Money for Repairs, Instead of Letting it Go to Dickert's Employé. Evidence of Unfitness." Then follows an affidavit, made by Dickert, charging in effect that he (Dickert) was section foreman of the Louisville &amp Nashville Railroad Company, and as such foreman made certain repairs on the track leading to the Avondale Cotton Mill, and that, when he had finished making them, Comer asked him the approximate total cost of the repairs, and, being told that they were $30, he invited Dickert into his private office and offered to pay him in cash for the repairs, instead of paying it to the Louisville & Nashville Railroad Company; that said Dickert declined to receive it, and told him that he did not do business that way, whereupon Comer replied that, if he did business that way, he would die a poor man, etc. The complaint was amended by adding a second count and a third count, and at the conclusion of the third count was the following: "But plaintiff does not sue, and does not claim from the defendant any sum, for and on account of punitive or exemplary damages, but seeks to recover under this count only compensatory damages, including such presumptive damages as the law may presume that he has sustained for injury to his reputation for and on account of the wrongful act of the defendant in publishing said article without proof that he has actually sustained and suffered said damages to his reputation."

Demurrers were filed to these complaints on many grounds, but for the purposes of this opinion the following only need be set out. (2) "Because it is not averred or shown that at least five days before beginning this suit the plaintiff served notice in writing on the publisher or publishers of the newspaper wherein the article complained of in the complaint is alleged to have been published, specifying the statement or statements in said article alleged by him to be false and defamatory." (3) Same as 2, down through the word "defamatory," with the following additional: "And it does not appear from said count that defendant had no principal office of publication within the state of Alabama." (4) Same as 2, down through the word "defamatory," and adds the following: "Although it appears from said complaint that defendant's principal office of publication was within this state." (5) "Said complaint shows that said publication was a privileged communication." These demurrers were sustained by the court, plaintiff declined to plead further, and there was judgment for defendant.

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

Sharpe & Miller and John W. Tomlinson, for appellee.

SIMPSON J.

This was an action for libel, consisting of the publication in the Age-Herald, a newspaper published in Birmingham, Ala., of the articles shown in the record. The demurrers filed to the complaints, original and amended, raise the question of the constitutionality of the act of February 20, 1899, amending section 1441 of the Code of 1896. Gen. Acts 1898-99, p. 32. One of the grounds of the demurrer is that the notice required by said act to be given before bringing suit is not alleged in the complaint to have been given.

It is contended on the part of the appellant: First. That this act is unconstitutional, because the subject is not clearly expressed in the title, in accordance with section 45 of the present Constitution. See section 2, art. 4, Const. 1875. The title of the act is "An act to amend section 1441 of the Code, regulating actions of slander and libel." The only change made in the section as it stood in the Code is the substitution, for the words "by publishing an apology in a newspaper when the charge had been thus promulgated," of the following, to wit: "Before any suit for libel shall be brought for the publication of an article in a newspaper in this state, the aggrieved party shall, at least five days before beginning suit, serve notice in writing on the publisher or publishers of said newspaper, at their principal office of publication if within the state, specifying the statements in the said article which he or they allege to be false or defamatory, and it it shall appear on the trial of said action that said article was published in good faith, that its falsity was due to mistake or misapprehension, and that a full correction or retraction of any false statement therein was published in the next regular issue of said newspaper, or in case of daily newspapers within five days after service of said notice aforesaid in as conspicuous a place and type in said newspaper as was the article complained of, then the plaintiff in such case shall recover only actual damages." Under the previous decisions of this court, this was a sufficient compliance with the constitutional requirement. Montgomery v. State, 107 Ala. 372, 18 So. 157. The amendment is clearly pertinent to the general subject of the original section of the Code, to wit, the regulation of the practice in such cases and the effect to be given to the retraction or amends made before suit.

Appellant next insists that the act in question is unconstitutional because it denies to the person the protection guaranteed to him by section 13 of the Bill of Rights, that "every person, for any injury done him, in his lands, goods, person or reputation, shall have a remedy by due process of law," and he argues that the term "actual damages" cannot include those presumed and unproved damages of which the law allows a recovery, although in point of fact they may not have been actually sustained. The law presumes certain damages, not on the idea that they have been actually sustained, but because they are the natural and probable consequences of the libel, and the law presumes that they are actually sustained, such as the injury to a man's reputation, which, while it may not be an "actual pecuniary" loss, is nevertheless an actual loss. Newell on Defamation, Slander, and Libel, p....