Jenness v. Co-Operative Publishing Co.

• Citation: 36 Idaho 697,213 P. 351
• Parties: N. JENNESS and HAROLD JENNESS, Copartners, Respondents, v. CO-OPERATIVE PUBLISHING COMPANY, a Corporation, Appellant
• Decision Date: 26 February 1923
• Court: United States State Supreme Court of Idaho

213 P. 351

36 Idaho 697

N. JENNESS and HAROLD JENNESS, Copartners, Respondents, v. CO-OPERATIVE PUBLISHING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 26, 1923

PLEADING AND PRACTICE-MOTION FOR NEW TRIAL-ERRORS REVIEWABLE ON SUCH MOTION-ACTION FOR LIBEL-WHEN MAINTAINABLE WITHOUT PROOF OF SPECIAL DAMAGE.

1. In granting new trials, courts are limited to the grounds enumerated in C. S., sec. 6888. An erroneous ruling on a demurrer not being one of the grounds, such ruling will not be reviewed on an appeal from an order denying a new trial.

2. On an appeal from an order denying a new trial, a complaint will be held sufficient unless it fails in any view of the pleadings to state a cause of action.

3. Where a publication is not libelous per se, but is of such a character that it might expose the person about whom it was written to public hatred, contempt or ridicule and cause injury to his business, a complaint which charges that it does do so states a cause of action good against a general demurrer.

4. Where the publication of an article is admitted, which is not libelous per se, and no malice is shown, and the plaintiff admits having suffered no pecuniary loss in his business by reason of such publication, the verdict awarding plaintiff damages will be set aside because of there being no evidence to support the same.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Action for libel. Judgment for plaintiffs. From order denying motion for new trial, defendant appeals. Reversed and remanded for new trial.

Cause reversed, with instructions. Costs awarded to appellant.

M. H Eustace, for Appellant.

The publication complained of is not libelous per se. (C. S sec. 8253; 25 Cyc. 364; Clark v. Fitch, 41 Cal. 472; Crashley v. Press Pub. Co., 179 N.Y. 27, 1 Ann. Cas 196, 71 N.E. 258; Stone v. Cooper, 2 Denio (N. Y.), 293; Baxter v. Dorrington; 13 Ariz. 140, 108 P. 459; Brown v. Independent Pub. Co., 48 Mont. 374, 138 P 258; Lemmer v. The Tribune, 50 Mont. 559, 148 P. 338; Odgers, Libel and Slander, 5th ed., pp. 17, 72.)

Unless the publication is libelous per se, the respondent must allege and prove damages. (13 Ency. Pl. & Pr. 32; 25 Cyc. 436, 454, 455; Odgers, Libel and Slander, 5th ed., pp. 377, 382, 383; Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308; Ledlie v. Wallen, 17 Mont. 150, 42 P. 289; Bush v. McMann, 12 Colo. App. 504, 55 P. 956; Denny v. Northwestern Credit Assn., 55 Wash. 331, 104 P. 769, 25 L. R. A., N. S., 1021; Velikanje v. Millichamp, 67 Wash. 138, 120 P. 876; Pollock v. Evening Herald Pub. Co., 28 Cal.App. 786, 154 P. 30; Clark v. Morrison, 80 Ore. 240, 156 P. 429; Nunnery v. Bailey, 65 Okla. 260, 166 P. 82; Talbot v. Mack, 41 Nev. 245, 169 P. 25; Kee v. Armstrong, Byrd & Co., 75 Okla. 84, 182 P. 494, 5 A. L. R. 1349.)

The complaint must show a specific allegation that the alleged business of respondents, as an entity, has suffered by reason of the publication before an action can be maintained by the copartnership. (25 Cyc. 426; Davis v. Ruff, Cheves (S. C.), 17, 34 Am. Dec. 584; Beardsley v. Tappen, 2 F. Cas. 1188A.)

Rhodes & Partridge, for Respondents.

This court will not consider or review the sufficiency of the complaint on an appeal from an order denying a new trial. (Naylor v. Lewiston Ry. Co., 14 Idaho 722, 96 P. 573; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Wright v. Stewart, 32 Idaho 490, 185 P. 69; Swett v. Gray, 141 Cal. 63, 74 P. 439; Bode v. Lee, 102 Cal. 583, 36 P. 936; Evans v. Paige, 132 Cal. 132, 36 P. 406.)

The article complained of is libelous per se and the proof of the publication made a prima facie case to go to the jury. (C. S., sec. 8253; Dwyer v. Libert, 30 Idaho 576, Ann. Cas. 1918B, 973, 167 P. 651; State v. Sheridan, 14 Idaho 222, 93 P. 856, 15 L. R. A., N. S., 497; Pacific Packing Co. v. Bradstreet, 25 Idaho 696, Ann. Cas. 1916D, 761, 139 P. 1007, 51 L. R. A., N. S., 893; Lewis v. Haynes, 177 Cal. 587, 171 P. 293; Kelley v. Roetzel, 64 Okla. 36, 165 P. 1150; Bodine v. Times Pub. Co., 26 Okla. 135, 110 P. 1096, 31 L. R. A., N. S., 147; McClellan v. L'Engle, 74 Fla. 581, 77 So. 270; Shyrock v. S. P. Calkins & Co., 248 F. 649; Fitch v. De Young, 66 Cal. 339, 5 P. 364.)

Malice is presumed by the publication of an article libelous per se. (Childers v. San Jose Mercury Printing & Pub. Co., 105 Cal. 284, 45 Am. St. 40, 38 P. 903; 25 Cyc. 373.)

WILLIAM A. LEE, J. Dunn and William E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This was an action by respondents to recover damages for an alleged libelous article published in the "Idaho Free Press," a newspaper published by appellant at Nampa, Canyon county, Idaho.

The alleged defamatory words complained of are set out in the complaint haec verba. To this complaint appellant demurred generally and specially, and contended that the words used were not libelous per se and that respondents having failed to allege by way of inducement any extrinsic facts and connect such facts by proper colloquium so as to render them actionable, it fails to state a cause of action.

The demurrer was overruled and appellant answered, admitting the publication of the alleged libelous article, but denied that the statements therein contained were libelous or that they were published with any intention to injure respondents' business or to expose them to public ridicule or contempt, or that their business was in any manner injured by such publication, and denied all the other material allegations of the complaint. By way of affirmative defense, appellant alleged that the objectionable article was composed and published by one of its employees, without the knowledge or consent of the general manager or managing editor, neither of whom saw or knew anything of said article until after the same was published. By way of a pleading termed "cross-complaint and for affirmative relief," appellant set up a similar cause of action against respondents and prayed for an affirmative judgment, which cross-complaint was stricken from the pleadings on motion.

The cause was tried by the court with a jury, which returned a verdict for respondents, fixing their damage at $ 100, and a judgment was entered for this amount, with costs taxed at $ 59.50. Appellant moved for a new trial upon certain of the statutory grounds enumerated in C. S., sec. 6888, and this appeal is taken from the order denying this motion for a new trial.

Appellant assigns a large number of errors, all of which are predicated upon its contention that the publication was not libelous per se, that no matters of inducement or averments of extraneous facts were alleged in the complaint which imputed to plaintiffs that they had been guilty of any crime, fraud, dishonesty or immorality, or anything that tended to injure them in their good name, office, profession or calling, or to hold them up to ridicule, hatred or scorn, and that no special damages having been proven, the evidence is insufficient to support the verdict. This appeal being taken from the order denying appellant's motion for a new trial only, the error based upon the order overruling appellant's demurrer to the complaint cannot be considered on this appeal, unless such complaint is so defective that it fails to tender any issue of fact, and therefore would not constitute a basis for an affirmative judgment, for the reason that in granting a new trial, courts are limited to the grounds specified in C. S., sec. 6888, and an erroneous ruling on a demurrer is not one of such grounds. On an appeal from an order denying a new trial, the sufficiency of the complaint will not be considered unless it fails in any view of the pleadings to state a cause of action. (Naylor v. Lewiston etc. Ry. Co., 14 Idaho 789, 96 P. 573; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Wright v. Stewart, 32 Idaho 490, 185 P. 69.)

Aside from this, the record presents but two questions for review by this court: First, is the alleged libelous matter pleaded by respondents, the publication of which is admitted by appellant, libelous per se, and if not, is there any evidence to support the verdict of the jury?

C. S., sec. 8253, defines libel to be:

"A malicious defamation, expressed either by writing, printing or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty integrity, virtue or reputation, or publish the natural or...