Harrison v. Burger

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 236
• Citation: 212 Ala. 670,103 So. 842
• Parties: HARRISON v. BURGER et al.
• Court: Alabama Supreme Court

103 So. 842

212 Ala. 670

HARRISON v. BURGER et al.

6 Div. 236

Supreme Court of Alabama

March 26, 1925

Rehearing Denied April 30, 1925

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Suit for damages by Mrs. T.V. Harrison against Jacob Burger and others, doing business as the Burger Dry Goods Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Horace C. Wilkinson, of Birmingham, for appellant.

London Yancey & Brower and Clara Cain, all of Birmingham, for appellees.

GARDNER J.

Appellant sued appellee to recover damages for an alleged false report concerning her credit and indebtedness to appellee. Demurrer was sustained to several counts of the complaint, and plaintiff declining to plead further, judgment was rendered for defendant.

Counsel for appellant seem to be under the impression that the trial court sustained the demurrer to counts A and B, but the minute entry in the record before us, and by which of course we are governed, discloses to the contrary that demurrer thereto was overruled. The ruling as to count 3 is not argued, leaving for consideration therefore the sufficiency of counts 1, 2, 4, 5, and C, to which demurrers were sustained.

The defendant is alleged to have published of and concerning plaintiff that she owed defendant an account which was past due, and which she failed to pay, or, as in other counts, which she had refused to pay, and in count C merely that plaintiff was indebted to defendant.

There are authorities to the effect that "a publication which imputes an unwillingness or refusal to pay his just debts is libelous per se." 36 Corpus Juris, 1170. This language found repetition in Ferdon v. Dickens, 161 Ala. 181, 49 So. 888. The language therein considered, however, charged much beyond the mere failure or refusal to pay a debt. McDermott v. Union Credit Co., 76 Minn. 131, 78 N.W. 967, 79 N.W. 673. In many of the cases it is said that words charging nonpayment of debts or insolvency are actionable without special damage being shown, when they refer to merchants, tradesmen, or others in occupations where credit is essential. Stannard v. Wilcox Sewing Machine Co., 118 Md. 151, 84 A. 335, 42 L.R.A. (N.S.) 515, Ann.Cas.1914B, 709.

Plaintiff in the instant case was not so engaged, so far as any count in the complaint discloses. We are persuaded that, by the weight of authority as well as sound reasoning, the words alleged to have been written of plaintiff, under the circumstances herein disclosed, were not libelous per se. 36 Corpus Juris, 1170; Stannard v. Wilcox Sewing Machine Co., supra, and authorities cited in the note; Trimble v. Anderson, 79 Ala. 514; Cooley on Torts (2d Ed.) p. 242 and note.

Words, however, which are not actionable per se, are rendered actionable when damage results as a natural consequence therefrom, or by reason of the fact that such result was so intended. 17 R.C.L. p. 311. In such cases, therefore, when the language used is not actionable per se, it is incumbent upon the plaintiff to allege special damages.

"If the publication is not privileged and is not actionable per se because the publication as ordinarily understood will not naturally and necessarily cause injury, damages may be recovered upon proper allegations and proofs for such special injury as is the natural and proximate, though not necessary, consequence of the wrongful publication." Briggs v. Brown, 55 Fla. 417, 46 So. 325.

In Cooley on Torts, supra, p. 242, the author says:

"Besides the publication mentioned [having reference to those libelous per se], any untrue and malicious charge which is published in writing or print is libelous when damages are shown to have resulted as a natural and proximate consequence."

There are many cases sustaining an action of this character, where the language used was not in itself defamatory, but was charged as having been falsely and maliciously published, and plaintiff suffered special damages therefrom. Morasse v. Brochu, 151 Mass. 567, 25 N.E. 78, 8 L.R.A. 524, 21 Am.St.Rep. 474; Am.Ins. Co. v. France, 111 Ill.App. 383; Hollenbeck v. Bristine, 105 Iowa, 488, 75 N.W. 355; Lombard v. Lennox, 155 Mass. 70, 28 N.E. 1125, 31 Am.St.Rep. 528; Hammond v. Hussey, 51 N.H. 40, 12 Am.Rep. 41.

The court, in Trimble v. Anderson, supra, directed attention to the fact that the complaint contained no averment of special damages. To justify recovery in cases of this character, however, it seems the plaintiff should allege the publication was done falsely and maliciously, or with the express purpose of injuring plaintiff, and that injury did so result. Such, in effect, is the holding of the foregoing authorities. See, also, 36 Corpus Juris, 1170; 25 Cyc. 372-375.

In Ivey v. Pioneer Sav. Co., 113 Ala. 349, 21 So. 531, it was held in actions for libel the complaint should allege "that the words were falsely and maliciously published." There are authorities, however, to the effect that words equivalent to the word "maliciously" may be used. 25 Cyc. 444. Whether the words so substituted constitute such equivalent may frequently present a question of difficulty, and the rule of pleading as stated in Ivey v. Pioneer Sav. Co., supra, is so plain and simple we see no occasion for the pleader to attempt to depart from it.

Under this rule count 1 is defective. In view of the varying definitions of the word "wanton" (4 Words and Phrases, Second Series, pp. 1236, 1238), we are inclined to the view that count 2 is subject to like criticism. At least, it does not meet the rule of the Ivey Case, supra. We have observed that in this particular case plaintiff must allege special damages as distinguished from what are denominated general damages.

"Special damages are such as result approximately, but not ordinarily, from the wrong complained of. They are either superadded to general damages arising from an act injurious in itself, or are such as will arise from an act not actionable in itself, but injurious only in its consequences--such as really occur. Of a claim of such damages defendant ought to be specially informed." Lay v. Postal Tel. Co., 171 Ala. 172, 178, 54 So. 529; Irby v. Wilde, 150 Ala. 402, 43 So. 574; Dowdall v. King, 97 Ala. 635, 12 So. 405; Sloss-Sheffield Steel & Iron Co. v. Dickinson, 167 Ala. 211, 52 So. 594; 17

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