Fitzpatrick v. Age-Herald Pub. Co.

• Decision Date: 27 November 1913
• Citation: 184 Ala. 510,63 So. 980
• Parties: FITZPATRICK v. AGE-HERALD PUB. CO.
• Court: Alabama Supreme Court

63 So. 980

184 Ala. 510

FITZPATRICK v. AGE-HERALD PUB. CO.

Supreme Court of Alabama

November 27, 1913

Appeal from City Court of Birmingham; William M. Walker, Judge.

Action by Kearn Fitzpatrick against the Age-Herald Publishing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Harsh Beddow & Fitts, of Birmingham, for appellant.

Nathan L. Miller, of Birmingham, for appellee.

DOWDELL C.J.

Action of libel brought by appellant, Kearn Fitzpatrick, against the Age-Herald Publishing Company. From a judgment for defendant the present appeal is prosecuted.

There is but one count in the complaint; the court sustained a demurrer thereto, and, the plaintiff declining to amend judgment was thereupon rendered for the defendant, permitting it to go hence without day. The publication complained of is set forth inhaec verba in the complaint. It appears that a man by the name of Michael Brennan, otherwise called Micky Brennan, was shot in the city of Birmingham, Ala., on July 2 1911, and on the next morning the defendant company published in its paper, the Age-Herald, an account of the shooting detailing some sensational facts with reference to the affair. The "offensive statement," constituting the alleged libel of plaintiff, is: "The shooting occurred on Avenue E, between Eleventh and Twelfth streets, in a house which bears a bad reputation with the police." The complaint avers that the house mentioned in the publication was at the time, and had been for a long time prior thereto, and has been ever since said time, occupied by plaintiff, with his family, as a residence, and that, as a proximate consequence of said libel, the plaintiff was greatly humiliated, his reputation greatly impaired, etc. Numerous grounds of demurrer were assigned to the complaint. The vital question in the case is whether or not the published words were libelous, and, if so, did they constitute a libel of the plaintiff, or of the house in which the plaintiff avers he was residing; that is, were they a libel of the person or of the thing--the house?

Counsel for appellee devotes practically his entire brief to the support of the proposition that the libel, if any, was of the thing--the house--and not of the plaintiff. The plaintiff charges that the alleged libelous words were falsely and maliciously published "of and concerning him." There is no mention of the plaintiff's name in the publication. By way of innuendo, the plaintiff avers that the said house mentioned in said publication was, at the time, and had been for a long time prior thereto, and has been ever since said time, occupied by the plaintiff, with his family, as a residence. The plaintiff insists that this averment sufficiently explains the precedent matter--the publication--and shows that the said publication related to, and was a libel upon him. Unless the published words are fairly susceptible of the meaning attributed to them by the pleader in the innuendo, the actionable quality of the words is not disclosed, for the innuendo is but the deduction or conclusion of the pleader. The only office of the innuendo is to explain some matter already expressed, or to serve to point out where there is precedent matter. It may apply what is already expressed, but cannot add to, enlarge, or change the sense of the previous words. If the meaning given to the words by the innuendo is broader than the words would naturally bear, the pleading is bad, for, in law, the innuendo is but the deduction of the pleader from the words used in the publication, and this court has repeatedly held that it is for the court to say whether the meaning charged by the innuendo is supported by the language used in the publication. Henderson v. Hale, 19 Ala. 159; Wofford v. Meeks et al., 129 Ala. 349, 30 So. 625, 55 L.R.A. 214, 87 Am.St.Rep. 66; Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788. As above stated, the appellee insists that the alleged libel was of the "house," and not of the plaintiff. It is also pointed out that the particular house referred to in the complaint is uncertain. The only house mentioned is the house which the plaintiff alleges was his residence, and the word "said" before the word "house" makes it certain that the plaintiff intended to and did aver that the alleged libelous publication referred to the particular house occupied by the plaintiff with his family.

It is strenuously argued that the plaintiff's complaint shows that he was not libeled, and that the libel, if any, was of the thing, the house; that it is the house which has a bad reputation with the police, and not the occupants thereof. In support of this contention the following Alabama cases are cited: Cahn v. State, 110 Ala. 56, 20 So. 380; Toney v. State, 60 Ala. 97; Wooster v State, 55 Ala. 221; Price v. State, 96 Ala. 5, 11 So. 128. The cases are not in point. The principle announced in two of these decisions is that, in a prosecution for keeping a certain character of house prohibited by law, the state cannot offer evidence of the character of the house. The house acquires whatever reputation it has from the occupants thereof; it can make or earn none for itself; it can and does reflect only the reputation of its occupants, or those who frequent it. We know of no way by which a house can, of its own act, acquire a reputation. This being true, when we speak of a certain house as being disorderly, we must necessarily be understood as referring to the conduct of those who live in, or who frequent, the same by and with the permission of the occupants. When, therefore, it is said of a house, "It has a bad reputation with the police," we refer to the head of that house, and, in fact, we reflect upon each member of the same. The language of the publication is, "The shooting occurred on Avenue E, between Eleventh and Twelfth streets, in a house which bears a bad reputation with the police." This charges that, at the present time, the house bears a bad reputation with the police; and, under the plaintiff's averment, it was at that moment of time, and had been for a long while prior thereto, the place where he and his family resided. This reflected upon the plaintiff, for he and his family must be held to be the ones who gave to the house, and continued to give to it, that reputation, for the house is void of life and could...