Ellsworth v. Martindale-Hubbell Law Directory, Inc.

• Decision Date: 15 July 1936
• Docket Number: No. 6387.,6387.
• Parties: ELLSWORTH v. MARTINDALE-HUBBELL LAW DIRECTORY, Inc.
• Court: North Dakota Supreme Court

66 N.D. 578

268 N.W. 400

ELLSWORTH

v.MARTINDALE-HUBBELL LAW DIRECTORY, Inc.

No. 6387.

Supreme Court of North Dakota.

March 25, 1936.

On Rehearing July 15, 1936.

On Rehearing.

Syllabus by the Court.

1. In an action for libel, the defamatory publication must be set out in the complaint.

It is not sufficient to allege such publication in substance and effect. Held, for reasons set out in the opinion, that the complaint sufficiently alleges a defamatory publication.

2. In determining whether a publication is libelous per se, it must be stripped of all innuendo, colloquium, and explanatory circumstances.

3. A defamatory publication is libelous per se when without the aid of innuendo it must be presumed to expose the plaintiff to hatred, contempt, ridicule, or obliquy, or cause him to be shunned or avoided, or have a tendency to injure him in his occupation.

4. General damages do not result, as a matter of course, from the publication of defamatory matter that is not libelous per se, and in an action for libel based thereon the complaint is demurrable if it does not allege special damages.

5. A publication that is not libelous per se cannot be presumed to be understood in a defamatory sense by the readers thereof. A complaint alleging such publication fails to state a cause of action unless a defamatory understanding is also alleged.

Appeal from District Court, Stutsman County; H. L. Berry, Special Judge.

Action by S. E. Ellsworth against the Martindale-Hubbell Law Directory, Incorporated. From an order overruling a demurrer to the complaint, defendant appeals.

Reversed and remanded.

See, also (N.D.) 258 N.W. 486.

Nilles, Oehlert & Nilles and Richardson, Thorp & Wattam, all of Fargo, for appellant.

Knauf & Knauf, of Jamestown, for respondent.

MORRIS, Judge.

This is an action for libel and comes to this court upon appeal from an order of the district court overruling a demurrer to the complaint. The demurrer sets up that the complaint fails to state facts sufficient to constitute a cause of action.

The complaint alleges the corporate character of the defendant; that the defendant has for a period of forty years or more been engaged in the business of preparing, publishing, and circulating throughout the United States and Canada, each year, a book known as “Martindale's American Law Directory,” in which the defendant purports to rate all practicing lawyers with regard to their ability, character, professional and financial standing; that during the years 1927, 1928, 1929, and 1930, and for many years prior thereto, the ratings were indicated by the use of certain letters and figures, the meanings of which were disclosed by a “private key” printed and inserted by the defendant in each copy of the directory; that: “The subscriber to, owner of and any person consulting said Directory for business purposes, was advised that the meaning intended to be conveyed by the use of the letter ‘a’ after the name of a lawyer appearing upon the lists contained therein, was that his legal ability was ‘very high’ or first class; and by the use of the letter ‘b’ that his legal ability was ‘high’ or second class.” It was further stated “no arbitrary rule for determining legal ability can be formulated. Ratings are based upon the standard of ability for the place where the lawyer practices. Age, practical experience, class of practice, with other necessary qualifications are considered; reports are obtained through various channels and we endeavor to reflect the consensus of reliable opinion.” It was further stated in said “Private Key” that “in rating upon the point designated as ‘Recommendations,’ the use of the letter ‘v’ meant ‘very high’ or first class; and the use of the letter ‘w,’ ‘good’ or second class. That in rating, ‘Financial Worth,’ the use of the figure 5 meant a worth of from $10,000 to $20,000; and of the figure 6, a worth of from $5,000 to $10,000. That in the rating for ‘Promptness in Paying Bills,’ the use of the letter ‘g’ meant ‘good,’ or of the highest class; and the use of the letter ‘f’ meant fair or of an inferior or lower class. That the interpretation hereinbefore set forth of the use of said letters and figures placed opposite to the names of lawyers listed in said book, was by the use of said ‘Private Key’ therein inserted, did make clear to all persons consulting and using the same the significance attached to each and all of said letters and figures so used as symbols as intended by Defendant; and was by all such persons so using said volume for reference and the business public generally recognized, received and accepted as the rating, according to the definition of said ‘Private Key,’ intended to be given to each of said names, by the Defendant as publisher of said Directory.”

The complaint further sets forth plaintiff's admission to practice in the courts of North Dakota and various federal courts, the territorial extent of his practice, his good reputation as to legal ability, skill, and efficiency, his high standing among the members of the bar in his locality for character, integrity, experience, and trustworthiness; that in 1928 and 1929 the plaintiff was worth between $15,000 and $20,000; that he has been reasonably prompt in the payment of his bills and has enjoyed a good credit in business. We quote the final paragraphs of the complaint:

“And plaintiff further alleges that in September 1927, and for a period of twenty years and more prior thereto his qualifications as to legal ability recommendations, financial worth, credit in business, promptness in paying bills, and upon all points upon which ratings are given in said Directory were well known to said Defendant. That in the year 1907, the name of Plaintiff was printed in the Directory published in that year in Boldface type, followed by the ratine ‘a v 5 fi.’ In the ‘Private Key’ inserted in said 1907 edition of said Directory it is stated that the letters and fivure ‘a v 5’ have the same meaning as hereinbefore given; but that the meaning of the letters ‘fi’ there used is that the rating for promptness in paying bills is ‘good.’ That in the 1908 edition of said Directory the name of Plaintiff was again printed in Boldface type with a rating ‘a v 5 fi’ as in 1907; with the same explanation in the ‘Private Key’ inserted of the significance of the letters and figure used. That in the 1914 edition of said Directory the name of Plaintiff was again printed in Bold Faced type and followed by the rating ‘a v f g,’ the ‘Private Key’ inserted in this edition explaining that as in subsequent editions of said Directory the significance of the letter ‘g’ as used was ‘Rating for Promptness in paying Bills'-‘Good.’ That Plaintiff believes that in all the editions of said Martindale's American Law Directory published each year from and before the year 1907 to the year 1926 the name of Plaintiff was published by Defendant with a rating of ‘a v 5 g’ or its equivalent indicating that Plaintiff's legal ability was ‘very good or very high’; his recommendations ‘very high’; his promptness in paying bills ‘good’; and that in all of said particulars his reputation and character was first class and equal or superior to that of any lawyer practicing in the City of Jamestown or in said locality generally; and that from the ratings given as aforesaid in said editions of its Directory, Defendant well knew from the investigations made within the State of North Dakota and in the localities in which Plaintiff resided and practiced, by the agents appointed and authorized by Defendant for that express purpose and from the ratings given and reported to Defendant by said agents that Plaintiff was by his qualifications upon all points in which said ratings were made and given, entitled and qualified to be rated as first class upon all of said points.

And plaintiff further alleges that for many years it has been the usual practice and custom of Defendant to issue an edition of said Martindale's American Law Directory each year, and to solicit subscriptions for, publish, circulate and distribute each of such editions in the manner hereinbefore set forth. That each year the ratings of the lawyers listed therein are made by said agents as aforesaid during the months of July and August and the matter to be published therein edited, arranged and printed by Defendant; and the volume published and placed in the hands of subscribers in January of the year following as the edition of said Directory for that year. That in the latter part of the year 1927, Defendant, being fully advised and well knowing as hereinbefore set forth, the rating for legal ability, recommendations and promptness in paying bills to which Plaintiff was entitled and that such rating was first class and equal or superior to that of any lawyer practicing in the City of Jamestown and its locality, wilfully, wrongfully, maliciously and in a libellous manner, with intent to defame, derogate and injure professionally in character, reputation and business, and without any justifiable excuse therefor, printed and caused to be printed in the 1928 edition of said Directory the name of Plaintiff and caused to be subjoined thereto a so-called rating in letters and figures as follows, towit ‘b w 5 f’ which rating was by the interpretation of a ‘Private Key’ inserted by Defendant in and made a part of said 1928 edition of said Directory, declared and intended to mean that Plaintiff located as he was in the City of Jamestown, was a lawyer of second rate legal ability, that his professional character and reputation, skill, methods of practice and integrity were second class, and that his rating for promptness in paying bills and general credit were only ‘fair’ or inferior to that of many other lawyers practicing in said locality. That in said 1928 edition of said Directory seven other practicing lawyers, resident in the same locality as Plaintiff were rated by Defendant ‘A v g,’ intending meaning thereby to...