Gough v. Tribune-Journal Co.

• Decision Date: 20 October 1954
• Docket Number: TRIBUNE-JOURNAL,No. 8147,8147
• Citation: 75 Idaho 502,275 P.2d 663
• Parties: Laura S. GOUGH and A. C. Gough, wife and husband, Plaintiffs-Appellants, v.COMPANY, Herb Poynter and John McMahan, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 663

275 P.2d 663

75 Idaho 502

Laura S. GOUGH and A. C. Gough, wife and husband, Plaintiffs-Appellants, v. TRIBUNE-JOURNAL COMPANY, Herb Poynter and John McMahan, Defendants-Respondents.

No. 8147.

Supreme Court of Idaho.

Oct. 20, 1954.

Anderson & Anderson, Pocatello, for appellants.

Merrill & Merrill, Pocatello, for respondent Tribune-Journal Co.

Bistline & Bistline, Pocatello, for respondent Poynter.

Zener & Peterson, Pocatello, for respondent McMahan.

TAYLOR, Justice.

Plaintiffs (appellants) allege their marital relationship; that the plaintiff Laura S. Gough was a duly elected, qualified and acting county commissioner of Bannock County; 'that on the 5th day of March, 1952, the defendants maliciously composed and published of and concerning the plaintiff, Laura S. Gough in said Idaho State Journal, the following false and defamatory matter to-wit: Poynter and McMahan tell reasons behind commissioner recall move. Herb Poynter, chairman, and John McMahan, secretary-treasurer of the committee to recall County Commissioners George Allen and Laura Gough, issued a letter Wednesday to taxpayers and voters of Bannock County in which they outlined their complaints. Here is the letter in full:

"To the Taxpayers and voters of Bannock County:

"We, the undersigned, wish to have a few moments of your time to try and explain why the recall movement was started.

"As individuals we attended the public reading of the proposed budget of Bannock County. This budget was for $956,753. Two of the Commissioners walked out before we could get any definite reason for such a proposed budget. Later they passed a budget for $828,589. This is $128,162 less than proposed, but still $57,000 higher than last year's. The commissioners explanation for this cut was that a 'mistake' had been found. But, we feel this 'mistake' was found because of the opposition we put forth.

"The Commissioners economized by giving a $10-per month increase in wages to a group of underpaid employees after promising a 10 per cent increase.

"The $1500 for a road superintendent and $1500 for a construction foreman were left in the budget. In the past each commissioner, with the aid of the county engineer, looked after his own district. Do you feel this added expense is necessary?

"The $2500 for extra attorney fees also was left in the budget. We have a prosecuting attorney and an assistant attorney to handle all county legal matters. These men are qualified and willing to perform any duties required of them. At the public reading of the proposed budget we asked Commissioners Gough and Allen if our prosecuting attorney had been asked to defend Bannock County in the Higgins case before Mr. Walter Anderson was hired. They refused to answer.

"The $10,000 for remodeling the old General Hospital was also left in the budget. We asked if bids had been received for this work. We wanted to know just how they arrived at this sum. The only answer was a statement from Commissioner Allen that he didn't have to answer and that this meeting was not a Court. When this work is started and it is found the money allotted isn't sufficient, aren't we taxpayers going to have to dig up more? Each and every one must realize it will cost several times $10,000 to remodel the old general hospital for office space. Then, there will be architect fees. This will be 6 per cent of the cost of construction. We will have janitor service, heat, water, lights, etc., for another old building. Let's look to the future and plan new buildings--not remodel old ones. Let's be contented with what we have until we can build a new court house.

"The nurses' home and the frame house can be sold. Let's get them on the tax rolls.

"A bonded purchasing agent is a must for Bannock County. His salary and thousands of dollars can be saved Bannock County through competitive bids.

"The voters of Bannock County should have the services of three commissioners. You have two. One commissioner has been voted down about 90 per cent in the last 14 months. Why does this lack of unity or co-operation exist?

"The recall movement is the fairest way to reach a settlement on these issues. It will take 2548 signers to get a special election. This special election will cost Bannock County $5400. But, if the commissioners are allowed to remodel the old General Hospital it will cost the taxpayers four or five times this amount.

"We feel this unjustifiable spending, and lack of unity and co-operation are not what the taxpayers and voters want.

"Let's all work for the best interests of Bannock County.

"The petitions will be circulated Thursday. We hope we can have the required number of signers within two weeks.

"When the special election is held each of you can vote according to your own convictions--either for or against--but be sure to vote."

By way of innuendo plaintiffs further allege:

'That said defendants by making said publication intended to charge the plaintiff, Laura S. Gough, who was a member of the Board of County Commissioners, with the offense of failing to hold a public meeting to discuss the budget as required by law and intended then and there by said publication to charge the plaintiff, Laura S. Gough with dishonesty by insinuation and innuendo in that said defendants intended to and did charge the plaintiff Laura S. Gough with being guilty of falsehood in giving a ten dollars per month increase in wages to a group of allegedly underpaid employees after promising a ten per cent increase. Said defendants did then and there intend to and did charge the plaintiff, Laura S. Gough with using bad faith in making up said budget in connection with the item of $1500 for a construction foreman of Highways and in connection with the item of $2500.00 for extra attorneys fees.'

In a 'second count' plaintiffs allege in substance, 'that the plaintiff Laura S. Gough ran for the nomination on the Republican ticket, but was defeated by reason of said false, malicious and defamatory publication'; that she could have been reelected if the publication had not been made; and that by reason thereof she was deprived of the honor, fruits and enjoyment of the office.

Defendants' demurrers to the complaint were overruled by the district judge to whom the cause was first referred. Then, after defendants had filed their answers, when the cause came on for trial on the merits before Judge Henry S. Martin, to whom the case was later referred, the defendants objected to the introduction of any evidence on the ground that the complaint failed to state a cause of action and moved that the cause be dismissed. After hearing the parties, the court sustained the objection and dismissed the case. This is assigned as error, appellants contending that Judge Martin had no authority to review the action of the former judge in overruling the demurrers, and 'after the issues were formed the court was without authority to then dismiss the action at that stage of the proceedings.' These assignments are not supported by any argument or authorities in the brief and we will not consider them further. Johnson v. Bennion, 70 Idaho 33, 211 P.2d 148; Koch v. Elkins, 71 Idaho 50, 225 P.2d 457; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; Griffin v. Opinion Pub. Co., 114 Mont. 502, 138 P.2d 580.

The other assignments raise the question of the sufficiency of the complaint to state a cause of action. For the most part the propositions urged in support of the complaint were decided adversely to the appellants in the case of Gough v. Tribune-Journal Co., 73 Idaho 173, 249 P.2d 192. The publication here complained of arose out of the same transaction which gave rise to the publication complained of in the former case. In that case the publication purported to be a report of what transpired at a public county budget hearing. Here the publication purports to be a letter addressed to the electors of Bannock County by the two individual defendants, apparently participants in the budget hearing. The contention again made in this case that the article charges the plaintiff Laura S. Gough 'with the offense of failing to hold a public meeting to discuss the budget as required by law', was disposed of in the former opinion. Likewise both articles refer to complaints made to the commissioners about the budget items of $1500 for construction foreman, and $2500 for extra attorney's fees. The only new matter referred to in the innuendo in this case is that the article charges the plaintiff with being guilty of a falsehood in promising a ten percent increase in wages to a group of underpaid employees and then giving them a $10 per month increase.

In determining the defamatory character of a publication the article must be read and construed as a whole; the words used are to be given their common and usually accepted meaning and are to be read and interpreted as they would be read and understood by the persons to whom they are published. Gough v. Tribune-Journal Co., 73 Idaho 173, 249 P.2d 192; Wimmer v. Oklahoma Pub. Co., 151 Okl. 123, 1 P.2d 671; Campbell v. Post Pub. Co., 94 Mont. 12, 20 P.2d 1063; Estill v. Hearst Pub. Co., 7 Cir., 186 F.2d 1017; Spanel v. Pegler, 7 Cir., 160 F.2d 619, 171 A.L.R. 699; Browder v. Cook, D.C.I., 59 F.Supp. 225.

If the language used is plain and unambiguous, it is a question of law for the court to determine whether it is libelous per se, and if not libelous per se it cannot be made so by innuendo. Innuendo is necessary and permissible only where the language of the alleged defamation is vague or ambiguous, and explanatory allegations are required to show the intent of the defendant, and the sense in which the article is understood by its readers. Arizona Pub. Co. v. Harris, 20 Ariz. 446, 181 P. 373; Vedovi v. Watson & Taylor, 104 Cal.App. 80, 285 P. 418; Mortensen v. Los Angeles Examiner, 112 Cal.App. 194, 296 P. 927; Wimmer v. Oklahoma Pub. Co., 151 Okla. 123, 1 P.2d 671; Campbell v. Post Pub. Co., 94 Mont. 12, 20...