Dwyer v. Libert

• Decision Date: 30 June 1917
• Citation: 30 Idaho 576,167 P. 651
• Parties: WILLIAM DWYER, Respondent, v. W. A. LIBERT, Appellant
• Court: Idaho Supreme Court

167 P. 651

30 Idaho 576

WILLIAM DWYER, Respondent, v. W. A. LIBERT, Appellant

Supreme Court of Idaho

June 30, 1917

LIBEL-WORDS ACTIONABLE PER SE-EVIDENCE-PRIVILEGED COMMUNICATION-MALICE-EXEMPLARY DAMAGES-PLEADING.

1. In determining whether particular words are actionable per se the same rule does not apply to libel as to slander.

2. A written communication of a character conducive to blacken the reputation of the person referred to, or excite ridicule or wrath against him, or destroy public confidence in him, is actionable without proof of special damage.

3. A written publication charging one with wilful falsehood in the matter of a serious business transaction must necessarily expose him to contempt and lower him in the common estimation of citizens, and is therefore actionable per se.

4. A complaint against a public officer filed with a body having a right to discharge him is conditionally privileged upon good faith and the absence of malice.

5. Where a complaint has been made against D., a public officer who thereupon requests that the complaint be filed in writing, in order that he may be heard thereon, a privilege is created in the plaintiff conditioned upon good faith and the absence of malice.

6. The question of good faith and malice is one for the jury.

7. Where the general allegations of a complaint are sufficient to show that the wrong complained of was inflicted with malice or oppression or like circumstances, the complaint will be sufficient to authorize the infliction of exemplary damages.

8. Where under the pleadings of a case exemplary damages may be allowed, the pecuniary ability of the defendant is a proper matter for the consideration of the jury.

[As to complaint against public officer or employee to person or body having power in matter as privileged within law of libel and slander, see note in Ann.Cas. 1913C, 824]

APPEAL from the District Court of the Second Judicial District, for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action for libel. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

Miles S. Johnson and Jas. F. Ailshie, for Appellant.

"The necessity of keeping the administration of public corporations pure and efficient, the importance of punishing derelictions of duty on the part of officials thereof, and the danger of silencing inquiry, all tend to render communications of this kind, if made in good faith privileged, even though at times the effect of the rule may be to work injustice in particular cases." (Greenwood v. Cobbey, 26 Neb. 449, 42 N.W. 413, at page 415.)

"When the words alleged to be slanderous are embraced in the class of privileged communications, the plaintiff is bound to prove the existence of malice as the real motive of the defendant's language." (Beller v. Jackson, 64 Md. 589, 2 A. 916, 917.)

"If the publication is prima facie privileged, it devolves on the plaintiff to allege and prove that it was both false in fact and malicious in purpose." (Redgate v. Roush, 61 Kan. 480, 59 P. 1050, 1051, 48 L. R. A. 236.)

"A petition to the executive, or other appointing power, in favor of an applicant, is a publication thus privileged. No action will lie for false statements contained in it, unless it be shown it was both false and malicious." (Kirkpatrick v. Eagle Lodge, 26 Kan. 384, 391, 40 Am. Rep. 316; Fowles v. Bowen, 30 N.Y. 20, 25; Bearce v. Bass, 88 Me. 521, 51 Am. St. 446, 452, 34 A. 411; Coogler v. Rhodes, 38 Fla. 240, 56 Am. St. 170, 176, 21 So. 109.)

The presumption which attaches to a writing written on a privileged occasion is that it was written in good faith and upon probable cause. (Hemmens v. Nelson, 138 N.Y. 517, 524, 34 N.E. 342, 20 L. R. A. 440; Denver Public Warehouse Co. v. Holloway, 34 Colo. 432, 114 Am. St. 171, 7 Ann. Cas. 840, 83 P. 131, 133, 3 L. R. A., N. S., 696; 25 Cyc. 494, 523, 524, 548; 18 Ency. Law, 2d ed., 1040; Kent v. Bongartz, 15 R. I. 72, 2 Am. St. 870, 22 A. 1023.)

When the filing of a statement with a city, without a request, is privileged, it becomes doubly so when it is so filed at the request of the plaintiff himself.

"If the plaintiff consented to or authorized the publication complained of, he cannot recover for any injury sustained by reason of the publication." (Schoepflin v. Coffey, 162 N.Y. 67, 56 N.E. 502, 505; O'Donnell v. Nee, 86 F. 96; 25 Cyc. 370, 371; Shinglemeyer v. Wright, 124 Mich. 230, 82 N.W. 887, 50 L. R. A. 129, 132; Melcher v. Beeler, 48 Colo. 233, 139 Am. St. 273, 110 P. 181, 186.)

No special damages were alleged in the complaint. None being alleged, none could be proven, and no attempt was made by the plaintiff to prove any. (Nichols v. Daily Reporter Co., 30 Utah 74, 116 Am. St. 796, 8 Ann. Cas. 841, 83 P. 573, 575, 3 L. R. A., N. S., 339; Stannard v. Wilcox etc. Sewing Machine Co., 118 Md. 151, Ann. Cas. 1914B, 709, 84 A. 335, 42 L. R. A., N. S., 515.)

To be actionable without proof of special damages, the words must contain an implication such as is necessarily hurtful in its effect upon plaintiff's business, and must touch him in his special trade or occupation. (25 Cyc. 337; Nichols v. Daily Reporter Co., 30 Utah 74, 116 Am. St. 796, 8 Ann. Cas. 841, 83 P. 573, 575, 3 L. R. A., N. S., 339; Brown v. Independent Publishing Co., 48 Mont. 374, 138 P. 258, 259; Lemmer v. The Tribune, 50 Mont. 559, 148 P. 338.)

The matter alleged to be libelous, contained in the charges filed with the city council, nowhere charges the plaintiff with any act which, if true, would constitute a crime, and for that reason it is not libelous per se, and only becomes libelous by reason of some special or peculiar effect it has on the business and standing of the complaining party, which must be charged by innuendo. It did not cause the loss of his position, and no special damage is claimed. (Douglas v. Douglas, 4 Idaho 293, 38 P. 934; Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Moore v. Johnson, 147 Ky. 584, 144 S.W. 765; Jones v. Banner, 172 Mo.App. 132, 157 S.W. 967; Boyce v. Wheeler, 161 Mo.App. 504, 144 S.W. 119; Velikanje v. Millichamp, 67 Wash. 138, 120 P. 876; Whitley v. Newman, 9 Ga.App. 89, 70 S.E. 686.)

"The civil action for libel is an action for damages, and, as in other actions sounding in tort, compensatory damages only can be recovered. It is obvious that these would be the same no matter what the motive which inspired the publication." (Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 26 Am. St. 842, 25 P. 1072, 11 L. R. A. 689; Wilson v. Sun Publishing Co., 85 Wash. 503, Ann. Cas. 1917B, 442, 148 P. 774, 779.)

There is no statute in Idaho of which we are aware allowing exemplary or punitive damages, except as applied to special acts of injury, such as forcible entry and detainer (sections 4533 and 5106, Rev. Codes), and cutting and removing trees, timber, etc. (sec. 4531).

If you allow the plaintiff in a civil action under a penal statute to recover damages as a punishment and example to the defendant, and then he is prosecuted and the state collects a fine for the same offense, you are collecting two penalties. The correct rule would seem to be to allow only actual damages to the plaintiff. (Winkler v. Roeder, 23 Neb. 706, 8 Am. St. 155, 37 N.W. 607; Bank of Commerce v. Goos, 39 Neb. 437, 58 N.W. 84, 23 L. R. A. 190; Murphy v. Hobbs, 7 Colo. 541, 49 Am. Rep. 366, 5 P. 119.)

Clay McNamee and Palmer H. McIntyre, for Respondent.

Every communication is privileged which is made in good faith with a view to obtain redress for some injury received, or to prevent or punish some public abuse. This privilege, however, must not be abused; for if some communication be made maliciously and without probable cause, the pretense under which it is made instead of furnishing a defense will aggravate the case of the defendant. (Newell on Slander and Libel, 2d ed., p. 542, par. 1; Bodwell v. Osgood, 20 Mass. (3 Pick.) 379, 15 Am. Dec. 228.)

A publication which imputes an unwillingness or refusal to pay just debts is libelous per se, as tending to destroy the party's reputation for integrity and fair dealing. (Morgan v. Andrews, 107 Mich. 33, 64 N.W. 869; Davis v. Hamilton, 85 Minn. 209, 88 N.W. 744; Mertens v. Bee Pub. Co., 5 Neb. Unof. 592, 99 N.W. 847; Sanders v. Hall, 22 Tex. Civ. 282, 55 S.W. 594; Muetze v. Tuteur, 77 Wis. 236, 20 Am. St. 115, 46 N.W. 123, 9 L. R. A. 86; Ingraham v. Lyon, 105 Cal. 254, 38 P. 892.)

The pecuniary circumstances of defendant are admissible in favor of plaintiff as tending to show the influence his words would have and the consequent extent of the injury. (8 Ency. Ev. 260, and notes; Barkly v. Copeland, 74 Cal. 1, 5 Am. St. 413, 15 P. 307; Barber v. Barber, 33 Conn. 335; Hintz v. Graupner, 138 Ill. 158, 27 N.E. 935; Fowler v. Wallace, 131 Ind. 347, 31 N.E. 53; Herzman v. Oberfelder, 54 Iowa 83, 6 N.W. 81; Stanwood v. Whitmore, 63 Me. 209; Shute v. Barrett, 7 Pick. (24 Mass.) 82; Loranger v. Loranger, 115 Mich. 681, 74 N.W. 228; Taylor v. Pullen, 152 Mo. 434, 53 S.W. 1086; Kidder v. Bacon, 74 Vt. 263, 52 A. 322; Harman v. Cundiff, 82 Va. 239.)

It is clearly competent for a jury to find vindictive damages in an action of libel or slander. (Newell on Slander and Libel, 2d ed., pp. 842-846, and notes.)

Wherever such (exemplary) damages are recoverable at all for malicious wrongs, they may be recovered for libel and slander, especially so where words are actionable per se. (4 Sutherland on Damages, 4th ed., sec. 1216, and notes; 25 Cyc. 536.)

California under statute similar to Idaho, has adopted the rule contended for. (Childers v. San Jose Mercury Printing & Pub. Co., 105 Cal. 284, 45 Am. St. 40, 38 P. 903; Lick v. Owen, 47 Cal. 252; Edwards v. San Jose Printing & Pub. Soc., 99 Cal. 431, 37 Am....