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 |
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.
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:
By way of innuendo plaintiffs further allege:
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...
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