Ferdon v. Dickens

• Decision Date: 24 May 1909
• Citation: 49 So. 888,161 Ala. 181
• Parties: FERDON v. DICKENS.
• Court: Alabama Supreme Court

49 So. 888

161 Ala. 181

FERDON v. DICKENS.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Clarence B. Ferdon against Charles C. Dickens. Judgment for defendant. Plaintiff appeals. Reversed and remanded.

Fitss Leigh & Leigh, for appellant.

Gregory L. & H. T. Smith, for appellee.

MAYFIELD J.

This was an action by appellant against appellee, for an alleged libel, which consisted of a letter written by the appellee defendant, to the Bank of Castleberry. The letter was as follows: "Mobile, Ala., Nov. 5, 1906. Bank of Castleberry. Castleberry, Ala.--Gentlemen: We return the papers in the Ferdon case with the request that you present again, and if not paid please turn over to some justice of the peace, with instructions to sue on the knowledge of the fact that Mr. Ferdon is about to leave the state for the purpose of defrauding his creditors. The account is long past due, and if Mr. Ferdon's intentions were honest and sincere he would have remitted a long time ago, since he has sold out of business and ought to have the means received from the sale. We have no confidence in his representations to you about coming here to Mobile in a week. It is not necessary that he come here to pay, he can pay you just as well as paying us if he had any honesty or sincerity of purpose to pay. Yours very truly, Chas. C. Dickens, Sect."

The complaint consisted of nine counts, which declared in libel based upon the letter in question, or certain parts thereof. No question is raised as to the sufficiency of the complaint. To this complaint the defendant filed two pleas, the first being a plea of not guilty. The second was a special plea which was subsequently amended, and which, as amended, was as follows: "(2) The firm of C. B. Ferdon & Company, of which plaintiff was a member, was indebted to the English Manufacturing Company, a copartnership, of which the defendant was a member, and whose business was being conducted by the defendant. Said indebtedness was past due and unpaid, and, after mailing a statement of said indebtedness to the plaintiff, and receiving no payment thereof within a reasonable time, the defendant drew a draft upon the plaintiff for said debt, and sent the same to the Bank of Castleberry, as the agent of the defendant to collect said draft. The said Bank of Castleberry returned said draft in a letter wherein its cashier stated that the plaintiff had sold out his business in Castleberry and gone to Pensacola. The defendant believing, and in good faith, the facts stated in said letter to be true, and that said plaintiff was about to leave the state for the purpose of defrauding his creditors, and not knowing any justice of the peace at Castleberry, for the purpose of having suit commenced upon said Ferdon while said Ferdon was at Castleberry, dictated and caused to be written the letter set out in the first count of the complaint to the said Bank of Castleberry, as his agent, to have said suit brought, and the person to whom the defendant dictated said letter was the stenographer in the employ of the defendant's firm, and whose business it was, under such employment, to write the letters dictated by the defendant in regard to said firm's business, and, other than dictating said letter and causing the same to be mailed, the defendant did not write or speak any of the matters alleged in any of the counts of the complaint, and the defendant avers that the statements made by him in the letter were not, at the time of the making thereof, known to him to be false."

The plaintiff filed demurrers to the original second plea, and, also, to the second plea as amended. The demurrers to the second plea as amended were overruled. The trial was had upon issue joined upon the first and second pleas. The court, at the request of the defendant in writing, gave to the jury the general affirmative charge for the defendant, and refused a similar charge for the plaintiff which was requested by him in writing. There were numerous exceptions to the rulings of the court on the trial as to the admission and exclusion of evidence. The judgment overruling the demurrers to plea No. 2, the giving of the affirmative charge for the defendant, the refusal of the affirmative charge for the plaintiff, together with the rulings upon the admission of certain portions of the evidence upon the trial, and the overruling and sustaining of objections to questions propounded to witnesses, are assigned as errors for review on this appeal.

There can be no doubt that plea No. 2 was filed and treated as a plea in bar. It is the only possible justification or excuse for the court's giving the general affirmative charge for the defendant. As a plea in bar it is too clear and certain for argument that it was wholly insufficient. The matters and facts alleged therein, under our statute, may be given in evidence under the general issue, in mitigation of damages, but certainly such matters cannot constitute a defense or bar to an action of libel. It is therefore only necessary to determine whether or not the demurrer sufficiently challenges the defects of the plea. While many of the grounds alleged in the demurrer are insufficient and do not point out the defect or insufficiency in as definite language as might be employed, we think some of the grounds sufficiently certain to authorize--indeed, to impel--the court to sustain the demurrer to a plea so palpably insufficient as this.

The plea being fatally defective, in substance, as a plea in bar, and the matters and facts set out in such plea being available to the defendant under the general issue, in mitigation of damages only, and not in defense, it could have been stricken from the file, upon motion, without putting plaintiff to a demurrer. This being true, a very general demurrer would be sufficient. The palpable defect in the plea was that the matters and facts alleged in the plea were availing only as evidence in mitigation of damages, and not in bar of the action. While this particular ground is not clearly and succinctly stated in the demurrer, yet we hold the demurrer sufficient to test this question. The plea in question is a very clear, concise, and intelligent statement of the facts under which the alleged libelous letter was written and published, but succinct and clear as these facts are made to appear, if true, they would constitute no defense to the action, being at most competent to be given in evidence, under the general issue, merely in mitigation of damages. Code 1907, § 3746 (section 1438 of the Code of 1896).

Parts of the letter which form the basis of the alleged libel are unquestionably libelous per se. Written or printed language which is published and which clearly charges dishonesty or fraud is actionable as for libel. A publication which imputes an unwillingness to pay just debts is libelous per se, for the reason that its tendency is to destroy a party's reputation for integrity and fair dealing. 25 Cyc. 256-258. As this court has said, through Tyson, J., in the case of Wofford v. Meeks, 129 Ala. 350, 30 So. 625, 627, 55 L. R. A. 214, 87 Am. St. Rep. 66, after quoting from the case of Iron Age Co. v. Crudup, 85 Ala. 520, 5 So. 332; "If the words employed in the alleged libelous publication impute dishonesty or corruption to an individual, they are actionable per se--a principle well established in our jurisdiction"--citing 13 Am. & Eng. Encyc. Law, pp. 295-296, note 3.

The dictation of a libelous letter to a stenographer, who copies it from his notes on a typewriting machine, and the subsequent signing thereof by the person dictating, is a publication of the contents of the letter sufficient to support libel or slander, although there is no communication of its contents to any other person. Gambrill v. Schooley, 93 Md. 48, 48 A. 730, 52 L. R. A. 87, 86 Am. St. Rep. 414. Whether allegations and proof of the truth of an alleged libel or slander are available in bar to an action of libel and slander, or only in mitigation of damages, is a question which, if settled at all, is not certainly settled in this state. Our statute upon this subject (section 3746, Code 1907; section 1438, Code 1896; section 2226, Code 1852) is as follows: "In all actions of slander or libel the truth of the words spoken or written or the circumstances under which they were spoken or written may be given in evidence under the general issue in mitigation of damages."

This statute first appeared in the Code of 1852, and has reappeared in every succeeding Code without material change. We have always had a constitutional provision relating to prosecution for libel of public officers or to any matter proper for public information; and have always had a constitutional provision that, in all indictments for libel the jury have the right to determine the law and the facts, under the direction of the court. This constitutional provision first appeared as section 14 of article 6 of the Constitution of 1819, which was as follows: "In prosecutions for the publishing of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and facts, under the direction of the court." This provision has ever since remained the same, in the various Constitutions, and now appears as section 12 of the Bill of Rights of the present Constitution. It will be observed that the constitutional provision is limited to "prosecutions" (which we assume to mean criminal prosecutions, though as to this we do not decide); and it is limited to publications concerning officers, or...