Ewell v. Boutwell

• Decision Date: 20 March 1924
• Parties: EWELL. v. BOUTWELL et al.
• Court: Virginia Supreme Court

121 S.E. 912

EWELL.

v.BOUTWELL et al.

Supreme Court of Appeals of Virginia.

March 20, 1924.

Error to Circuit Court of City of Norfolk.

Action by A. E. Ewell against W. R. Bout-well, President of Virginia Pilots' Association, and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Jos. T. Lawless, of Norfolk, for plaintiff in error.

Hugh W. Davis and Willcox, Cooke & Willcox, all of Norfolk, for defendants in error.

PRENTIS, J. This is an action for common-law libel, in which the trial court sustained a demurrer to the second count of the declaration, and gave judgment for the defendants. The original declaration also contained a count for insulting words, under the Virginia statute, but upon motion of the plaintiff that count was struck out, and he relied solely upon the second count of his declaration.

Omitting the formal introduction, it reads thus:

"That before the committing of the grievances by the said defendants, as hereinafter set forth, he had been elected by the duly qualified voters of Princess Anne county, state of Virginia, as a member of the House of Delegates of the state of Virginia, and had faithfully discharged his duties as such at the session of 1920 last preceding, and had introduced and advocated in said body legislation, proposing certainamendments to the then existing pilotage laws of the state of Virginia, and that then, to wit, on the said 30th day of July, 1921, he was a candidate to succeed himself as a member of the House of Delegates for said county and state, and as such had publicly declared his intention of introducing again a similar bill, if re-elected, proposing certain changes in said pilotage laws, and had openly and publicly declared his purpose to urge the enactment of the same, if re-elected, and had made the same the one issue in his campaign.

"And the plaintiff says that said defendants, well knowing the premises, but contriving and wickedly and maliciously intending to injure said plaintiff in his good name, fame, and credit, and to bring him into public scandal, infamy, and disgrace, and to use, harass, oppress, and impoverish and wholly ruin said plaintiff, and cause it to be suspected and believed by and among said plaintiff's neighbors, the qualified voters of said county and state in the election then pending and to be held on, to wit, the —— day of ——, 191—, and other good and worthy citizens of this commonwealth, that said plaintiff had been and was guilty while a member of said House of Delegates of betraying his public trust as such, and of having dishonestly, illegally, and for a money and other illegal, dishonest, and dishonorable considerations, introduced in said House of Delegates and of having unethically, dishonestly, and illegally urged the enactment thereof, of said certain legislation which had for its object certain amendments of the present pilotage laws of the state of Virginia, did, on, to wit, the 30th day of July, 1921, cause to be inserted in a full-page, conspicuously displayed advertisement in the Virginian Pilot, a daily newspaper of large, to wit, 45, 000 copies, daily circulation in said county and elsewhere (which said newspaper is owned, controlled, and published by said defendant, Virginian-Pilot Publishing Company, a corporation), the following, amongst others, false, scandalous, malicious and defamatory libels of and concerning said plaintiff, which said words were understood by the readers of the same generally in said city, county, and state to refer to and have been written of and concerning the plaintiff, and which in fact were so written and published: 'Destruction of the Pilots and Wholesale Smuggling of Whisky and Dope' (meaning thereby that said plaintiff by said proposed legislation had intended, and still does intend, if re-elected, to destroy the Pilots' Association, of which said defendant, W. R. Boutwell, is a member and of which he is president, for the purpose of illegally smuggling into this state whisky and dope, by which latter term is meant narcotic drugs, and illegally selling and causing the same to be illegally sold to the people of this and other states). 'We repeat that any one with a modicum of gray matter can see that forces other than honest purposes figure in this vicious attack upon the pilots' (meaning thereby that plaintiff had been actuated and would again be actuated if reelected by a dishonest purpose in having proposed and in again proposing said legislation, and was and had been engaged in an illegal, dishonest, and dishonorable conspiracy against said pilots for the purpose aforesaid, and that he had made, and would again make, if reelected, a depraved, corrupt, and evil attack on said pilots in furtherance of said conspiracy and purpose). 'We believe, however, * * * that the public should have this angle of attack upon the pilots. We have been informed that, as far as can be ascertained, it is the purpose of several unscrupulous "rich men, " who see their opportunity in this attack and are contributing thereto, to so lower the personnel of the pilotage service as to render it possible to engage in the smuggling of whisky and dope on a large scale—that there is $1, 000, 000 to $2,-000, 000 to be made out of it annually, but that the scheme cannot be effective under the present system of watchfulness by the customs authorities and pilots who are in constant co-operation with them' (meaning thereby that plaintiff had been and was then engaged in an illegal, dishonest, and dishonorable scheme or conspiracy with certain rich men, through said proposed amendments to said pilotage laws, to smuggle whisky and dope, meaning narcotic drugs, into the state, and thereby illegally to make money to the extent of from $1,000, 000 to $2,000, 000 annually). 'This report comes from a source sufficiently prominent to give it due credence, and we believe implicitly that such plot is afoot' (meaning thereby that plaintiff was and is a party to an illegal, dishonest, and dishonorable plot to destroy said pilots by said proposed legislation, and to do the illegal things above mentioned). 'Other Sinister Motives. We have for a long time been cognizant of several sinister motives, chief among which is state politics on a major basis—destruction of the present system of pilotage necessarily preceding creation of the most powerful political machine that has ever threatened to curse Virginia' (meaning thereby that plaintiff's motive in behalf of said proposed legislation was malicious, base, and wrongful; that he was and is engaged in a dishonst, dishonorable, and illegal plot or conspiracy designed to bring dishonor on the commonwealth of Virginia, which he represented, and sought again to represent). 'New York Money Against the Pilots. During the last session of the General Assembly of Virginia, during which the pilotage fight raged with a bitterness surpassing that of any contest during the past quarter of a century' (meaning thereby the contest on the said proposed legislation), 'we were informed that New York money was backing the fight against the pilots' (meaning thereby that plaintiff was a party to the illegal use of money contributed by persons in New. York in furtherance of said plot, scheme, or conspiracy to secure the enactment of his bill into law), 'and the lavish display of (to say the least) unethical methods which were being employed' (meaning thereby that plaintiff employed dishonorable and disreputable methods to secure the enactment of said proposed legislation). 'We then had reason to believe that report, and are now in possession of a signed statement that $1, 000, 000 of New York money (as a private undertaking) was backing the movement, and this by the declaration of one who was actively engaged in the passage of the Ewell Bill' (meaning thereby that plaintiff employed dishonorable and improper use of money contributed by persons in New York to secure the enactment of his bill into law, and also to a conspiracy or scheme to use the same to illegally and improperly destroy said pilots for the purpose of smugglinginto the state for illegal sale whisky and dope, meaning narcotic drugs). 'We were also subsequently informed by some who had actually participated in the fight against the pilots' (meaning thereby those who had favored said proposed legislation) 'that they had withdrawn because of the unscrupulous and disgusting methods which were being employed by some' (meaning thereby the plaintiff, among others, had resorted to dishonest and dishonorable means to secure the enactment of said proposed legislation) 'in support of the measure' (meaning thereby said Ewell Bill).

(The words of the publication declared on are underscored.)

A number of incidental questions have been discussed by the learned counsel, but it seems to be conceded, and if not conceded is certainly true, that the only fairly debatable question presented here is whether or not the alleged libelous publication points to the plaintiff as one of the persons referred to, who are therein accused of moral turpitude, so as to give him a right of action. That the words published import moral turpitude and are actionable cannot be questioned.

The plaintiff relies upon the averments of his declaration by way of inducement, colloquium, imputation, and innuendo, while the defendants contend that as the libelous matter does not by name or otherwise cast any imputation upon the plaintiff, and that even as aided by the averments it cannot be fairly construed to refer to him; therefore he has no cause of action. The general rule is conceded to be that no averment can extend or enlarge the libel; that the only purpose of such averments is to show or elucidate its meaning, but never to add thereto any additional meaning which is not by fair interpretation included therein.

Of course, it is fundamental that the plaintiff must himself have the right to sue. However...