Dillard v. Shattuck

• Decision Date: 12 May 1932
• Docket Number: No. 3707.,3707.
• Citation: 11 P.2d 543,36 N.M. 202
• Parties: DILLARDv.SHATTUCK.
• Court: New Mexico Supreme Court

36 N.M. 202

11 P.2d 543

DILLARD

v.SHATTUCK.

No. 3707.

Supreme Court of New Mexico.

May 12, 1932.

Syllabus by the Court.

Sheriff's statements to attorney relating to account held not slanderous per se as charging embezzlement, and therefore complaint, not alleging special damages, was insufficient (Comp. St. 1929, §§ 35-1802, 105-530).

Statements by sheriff to attorney relating to account for costs held not slanderous per se as relating to attorney's profession (Comp. St. 1929, § 105-530).

1. It is not slanderous per se as imputing the crime of embezzlement, for an ex-sheriff, seeking collection from an attorney of a disputed cost bill, to say to him in the hearing of others, “These parties all told me they had paid you this money to pay me.” Hence, special damage not being claimed, the complaint was demurrable.

2. If words are not slanderous per se as imputing a crime, and special damage is not claimed, the complaint is not saved against the demurrer by the argument that the words touch the complaining party in his profession, where there is no allegation that the words were spoken of and concerning him in relation to such profession.

Appeal from District Court, Eddy County; Granville A. Richardson, Judge.

Action by J. M. Dillard against E. S. Shattuck. From an order dismissing the complaint, the plaintiff appeals.

Affirmed.

Sheriff's statements to attorney relating to account held not slanderous per se as charging embezzlement, and therefore complaint, not alleging special damages, was insufficient. Comp.St.1929, §§ 35-1802, 105-530.

J. M. Dillard, of Carlsbad, for appellant.

Caswell S. Neal, of Carlsbad, for appellee.

SADLER, J.

The appellant, J. M. Dillard, a practicing attorney at Carlsbad, N. M., instituted this action in slander against E. S. Shattuck, a former sheriff of Eddy county, claiming general damages in the sum of $10,000. The complaint discloses that the alleged slanderous statements were made in appellant's office, in the presence of three of his clients, on the occasion of a visit there by appellee to present a bill incurred for costs for service fees in seven certain cases, in six of which appellant appeared as attorney for plaintiff and in one as attorney for defendant.

The complaint alleged a custom and practice on the part of appellee during his term of office (the alleged slanderous statements having been made subsequent thereto) of charging costs to the various attorneys at whose instance they were incurred, depending upon such attorneys to make the collections from their clients, and that such practice had been followed in this particular case.

It seems that on this particular occasion the ex-sheriff, appellee, came to appellant's office and presented an itemized bill showing total charges in the various cases of $24. Some colloquy took place between the parties as to whether appellant had or had not made payments on the account since appellee's retirement from office, the one asserting that he had, and the other that he had not, all as set out in the complaint.

Finally, these allegations appear, to wit: “Plaintiff then made the following statements: ‘I have certainly made payments on that account and I have certainly made payments on it since you went out of office.’ Then and in the presence and hearing of Wilson Gossett, Homer S. Skeen and J. F. Thompson, citizens of Eddy County, State of New Mexico, and clients of plaintiff, defendant maliciously made the following false, malicious, scandalous, defamatory and slanderous charge to and against plaintiff, to-wit: ‘If you say you have ever made any payments on this account (meaning the account of $24.00 for serving said process in list of suit) you are a liar; these parties (meaning the parties to said list of suits whom plaintiff herein represented) all told me (meaning defendant) that they paid you (meaning plaintiff) this money (meaning the amounts due defendant for serving said process in said list of suits) to pay me’, and defendant thereby willfully, maliciously and unlawfully charged plaintiff with the commission of the crime of embezzement under the laws of the State of New Mexico, which crime carries with it punishment as follows: imprisonment in the county jail for a period of not less than thirty days nor more than ninety days or by a fine of not less than $10.00 nor more than $100.00 or by both such fine and imprisonment, and further thereby accused plaintiff of an offense for the commission of which plaintiff could be disbarred from the practice of law in the State of New Mexico.”

The complaint then avers that said charge is “utterly false, malicious and slanderous,” and “did and does cause the public to believe that plaintiff had been guilty of having committed the crime of embezzling the money of plaintiff's clients which had been intrusted to plaintiff by them to pay service fees with in their lawsuits, and that plaintiff had thereby been guilty of dishonest conduct and improper practices and that plaintiff was dishonest and disreputable and not worthy of the confidence of plaintiff's clients and prospective clients, and to cause the public to shun plaintiff with their legal business by reason thereof, by reason whereof plaintiff has been damaged in the sum of Ten Thousand Dollars.”

The appellee interposed a demurrer to said complaint. In substance it questioned the sufficiency of the complaint to state a cause of action in that (1) it was based upon oral declarations, not actionable per se; (2) that the language charged to have been used by appellee did not and could not reasonably be interpreted as charging appellant with the crime of embezzlement as alleged in the complaint; and (3) that, the words used not being actionable per se, the complaint was fatally defective in failing to allege or claim special damages.

The court, after argument of said demurrer, sustained the same. The appellant, plaintiff below, electing to stand upon his complaint, announced that he would decline to plead further. Thereupon the court entered its order dismissing the complaint, from which order this appeal is prosecuted. The correctness of the trial court's order sustaining the demurrer is therefore before us for review.

Both parties are in agreement on the proposition that, unless the words constituting the alleged slander are actionable per se, the complaint is fatally defective by reason of the absence from it of allegations of special damage. That such is the rule seems well established. Wood v. Hannett, 35 N. M. 23, 289 P. 590. Slanderous words deemed actionable are classified in Newell on Slander and Libel (4th Ed.) § 4, p. 6, as follows:

“1. Words falsely spoken of a person which impute to the party the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished.

“2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, would exclude the party from society.

“3. Defamatory words falsely spoken of a person, which impute to the person unfitness to perform the duties of an office or an employment of profit, or the want of integrity in the discharge of the duties of such an office or employment.

“4. Defamatory words falsely spoken of a person which prejudice such person in his profession or trade.

“5. Defamatory words falsely spoken of a person which, though not in themselves actionable, occasion the person special damage.”

A reading of appellant's complaint would indicate that he seeks a recovery upon the theory that the words uttered are slanderous per se as charging him with the crime of embezzlement, though in his brief he also argues that they touch him in his office or profession as attorney. The propriety and correctness of the trial court's ruling from either standpoint will be considered.

It may be well, before proceeding further, to advert to some established principles which will control the decision of this case. One we have already mentioned, viz. that, where the words are not slanderous per se, there can be no recovery without both allegation and proof of special or actual damage, as distinguished from the general damage presumed to flow from the publication of language slanderous per se.

In determining whether the words used are slanderous per se, the innuendo is to be disregarded. It can neither add to, nor enlarge, their sense. Hence, if the meaning imputed is not their plain and obvious import, the court, in passing upon a demurrer questioning the per se character of such words, will ignore the innuendo. Newell on Slander and Libel (4th Ed.) §§ 542, 544, and 549.

It also seems established by persuasive authority that the alleged slanderous statements, in order to be actionable per se, must be susceptible of but one meaning, and that an opprobrious and defamatory meaning. 36 C. J. 1150; La Grange Press v. Citizen Pub-Co., 252 Ill. App. 482; Manley v. Harer, 73 Mont. 253, 235 P. 757; Burr v. Winnett Times Pub. Co., 80 Mont. 70, 258 P. 242; Woolston v. Montana Free Press (Mont.) 2 P.(2d) 1020; Phœnix Printing Co. v. Robertson, 80 Okl. 191, 195 P. 487; Ruble v. Kirkwood, 125 Or. 316, 266 P. 252.

The language relied upon to constitute the claimed slander is to be construed as a stranger might look at it without the aid of the knowledge possessed by the parties concerned. Shaffroth v. The Tribune, 61 Mont. 14, 201 P. 271. And it should be given its plain and natural meaning, and be understood by courts and juries as other people hearing or reading the same would...