Cooper v. Romney

• Decision Date: 15 April 1914
• Docket Number: 3367.
• Citation: 141 P. 289,49 Mont. 119
• Parties: COOPER v. ROMNEY.
• Court: Montana Supreme Court

141 P. 289

49 Mont. 119

COOPER v. ROMNEY.

No. 3367.

Supreme Court of Montana

April 15, 1914

Appeal from District Court, Ravalli County; John E. Patterson Judge.

Action for libel by O. C. Cooper against Miles Romney. Judgment for defendant, and plaintiff appeals. Affirmed.

O'Hara Edwards & Madeen, of Hamilton, and F. C. Webster, of Missoula, for appellant.

C. S Wagner and E. C. Kurtz, both of Hamilton, and John H. Tolan of Missoula, for respondent.

SANNER J.

Action for libel. Appeal from a judgment on order of nonsuit. The complaint alleges that on December 10, 1912, the defendant, as editor, proprietor, and manager of the Western News, a newspaper of general circulation in Ravalli county, Mont., did publish of and concerning the plaintiff, a member of the board of county commissioners of said county, the following false and malicious defamation, to wit:

"Just prior to adjournment the commissioners entered into another contract--with the Hamilton Publishing Company, publisher of the Ravalli Republican, to do and perform the county printing for another period of two years, beginning Jan. 6, 1913, and ending Jan. 6, 1915, at its own price. No bids were called for in this instance, the practice of years being reversed. Knowledge of this transaction involving the letting of this $8,000 contract leaked out quite accidentally. Always heretofore the custom has been to call for bids for the county printing, the largest contract at the disposal of the board. Not so this trip.

Graft the Motive?

Behind the revolutionary action of the commissioners, who allowed all other contracts to the lowest bidder after advertising for bids, there appears a very evident motive. It is clear that the commissioners did not desire to let the contract to the lowest bidder, and, fearing a comparison of figures, they arbitrarily awarded the contract without calling for bids, acting secretly in an effort to conceal their action. The interests of the taxpayers, the people who pay the county's printing bills, were never taken into account.

Why the commissioners should lay themselves open to criticism and condemnation in this way is quite clear. The reason the commissioners did not call for bids, and did not care to save the county money, is that they desired the printing contract to remain in the hands of the Hamilton Publishing Company, which is generally understood to be controlled by Mr. R. A. O' Hara. And the commissioners, always very partial to Mr. O'Hara, evidently desired to deflect all possible graft and revenue his way. The word 'graft' is used advisedly and very literally, for whenever the county pays more for a commodity to one person or corporation than it could buy the same commodity for elsewhere, the difference is graft--graft of the public's money aided and abetted by the public's servants, the commissioners.

It is obvious that this printing contract includes a graft of not less than $2,000 per year. Any person may determine this by making a little investigation. Who gets this $2,000 a year? Is it cut up between Messrs. Cooper, Treece and Tillman, or do these gentlemen, merely as an evidence of good nature, permit it to slip through their fingers into the coffers of the mysterious Hamilton Publishing Company?"

It is further alleged, by way of innuendo, that the "commissioners" above mentioned means the board of county commissioners of Ravalli county; that the adjournment referred to is the adjournment of said board on December 7, 1912; that "county printing" means the official printing for Ravalli county; that "Cooper" means the appellant, and--

"that by the use of the word 'graft' in said publication the defendant intended to convey, and did convey, to the readers of the said Western News, that the plaintiff in his capacity as a member of the board of county commissioners of Ravalli county, Montana, was guilty of a dishonest transaction in relation to a public or official act, which false and malicious defamation tends, and did then and there tend, to impeach the honesty, integrity, and reputation of the said plaintiff, county commissioner as aforesaid, thereby exposing him to hatred, contempt, and ridicule, to his damage in the sum of ten thousand dollars ($10,000.00)."

The answer admits the publication of the article quoted, and pleads that it is true, that the publication was without malice, was a fair and true report of the proceedings of a public meeting of the board of county commissioners of Ravalli county held at Hamilton on December 7, 1912, in the truth of which he honestly believed, and--

"that the matter complained of was for the benefit of the public in this, to wit: That said plaintiff is a public officer of the county of Ravalli, state of Montana, and that the matter published of and concerning him, as alleged in said complaint, was a just and true report and criticism of his public and official acts as county commissioner of Ravalli county, state of Montana, as to the nature and character of the public and official acts of said plaintiff at said meeting."

The reply puts in issue all the affirmative allegations of the answer.

Upon the trial the only evidence produced was to the effect that the plaintiff was at the time of the publication, and still is, a duly elected, qualified, and acting member of the board of county commissioners of Ravalli county, and that on December 31, 1912, there appeared in the Western News a certain article, the publication of which is claimed to be evidence of malice.

From the grounds of the motion for nonsuit, as well as from certain concessions made by counsel for plaintiff in the argument of the motion, which concessions the trial court caused to be set forth in the bill of exceptions, we assume that the order was made upon the theory that the publication was not libelous per se, and therefore plea and proof of special damages were necessary, or else that the complaint shows the publication to have been prima facie privileged, and thus to require more evidence of malice and falsity than was presented. We are, however, not concerned with the correctness of the theory upon which the order was made. If proper, it must be sustained, even though the reasons suggested may not be altogether sound.

1. To determine whether the matter complained of was of the character commonly denominated actionable per se, we need not go beyond fundamental principles as asserted and maintained by almost unbroken authority. "When language is used," says Newell, "concerning a person or his affairs, which from its nature necessarily must or presumably will as its natural and proximate consequence occasion him pecuniary loss, its publication prima facie constitutes a cause of action, and prima facie constitutes a wrong, without any allegation or evidence of damage other than that which is implied or presumed from the fact of publication; and this is all that is meant by the term 'actionable per se.' " Newell, Slander & Libel, p. 181; Townshend on Libel & Slander, pp. 157, 158; Brown v. Independent Pub. Co., 48 Mont. 374, 138 P. 258; Paxton v. Woodward, 31 Mont. 195, 78 P. 215, 107 Am. St. Rep. 416, 3 Ann. Cas. 546. Of this character are words published concerning a person in office, which impute to him unfitness to perform the duties of such office, or want of integrity in the discharge of such duties. Newell, supra, pp. 69, 168; Odgers on Libel & Slander, p. 297; Wofford v. Meeks, 129 Ala. 349, 30 South.

625, 55 L. R. A. 214, 87 Am. St. Rep. 66; Note 116 Am. St. Rep. 814, 815.

In determining whether a publication is libelous per se, the language complained of must be taken without the aid of innuendo (Brown v. Independent Pub. Co., supra; Wofford v. Meeks, supra; 25 Cyc. 450); but it must be construed in its relation to the entire article in which it appears, for its ordinary meaning may be limited or changed by the circumstances, or by qualifications expressly annexed to its use (Paxton v. Woodward, supra; 25 Cyc. 300 et seq.).

The offensiveness of the publication in question is specifically alleged to consist in the use of the word "graft." As ordinarily employed to characterize the conduct of a public officer, that word has a well-understood significance. It implies sometimes actual theft, and always want of...