Jerald v. Houston

• Decision Date: 10 December 1927
• Docket Number: 27,678
• Parties: DANIEL A. JERALD, Appellant, v. N. W. HOUSTON, Appellee
• Court: Kansas Supreme Court

261 P. 851

124 Kan. 657

DANIEL A. JERALD, Appellant, v. N. W. HOUSTON, Appellee

No. 27,678

Supreme Court of Kansas

December 10, 1927

Decided July, 1927

Appeal from Cherokee district court; JOHN W. HAMILTON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIBEL AND SLANDER--Effect of Statutory Definition. The statutory definition of libel in the criminal code did not abrogate the common-law distinction in civil actions between libel per se and libel per quod.

2. SAME--"Wrath" Defined. The statutory definition of libel includes defamation which tends to provoke wrath. Held the word "wrath" means not merely anger, but violent anger.

3. SAME--Actionable Character of Article--Question of Law. Whether a newspaper article is libelous per se is a question of law for the court.

4. SAME--Actionable Character of Article--Construction of Newspaper Article. In determining whether a newspaper article is libelous per se, headlines and the body of the article must both be regarded. Each statement must be considered in connection with the others, and the whole must be fairly and reasonably construed.

5. SAME. A newspaper article considered, and held not to be libelous per se.

6. SAME--Article Libelous Per Quod--Necessity of Proof of Special Damages. At the trial of an action for libel by the newspaper article referred to, no proof of special damages was offered. Held, a demurrer to plaintiff's evidence was properly sustained.

Charles Stephens, F. E. Dresia, Hubert Horning, all of Columbus, and F. J. Oyler, of Iola, for the appellant.

Fred A. Walker and C. B. Skidmore, both of Columbus, for the appellee.

Burch J. Dawson, J., dissenting. Harvey, J. concurring.

OPINION

BURCH, J.:

The action was one for damages for libel. A demurrer was sustained to plaintiff's evidence, and he appeals.

The district court sustained a demurrer to plaintiff's petition, plaintiff appealed, the judgment was reversed, and the case was remanded for trial. (Jerald v. Huston, 120 Kan. 3, 242 P. 472.) At the trial witnesses for plaintiff testified concerning how they understood the article: That plaintiff had falsified; that plaintiff was crooked; that plaintiff was getting too much from the railroad company--was trying to collect something which he ought not to; that plaintiff was trying to get the best of the railroad company--was trying to get more money for his land than it was worth. Plaintiff testified the article made him mad, made him ashamed to meet people, he could not sleep at night, and people shunned him. Early in the trial the court announced that in its opinion the case was one of libel per quod, and not per se. No proof of special damages was offered, and in sustaining the demurrer to plaintiff's evidence the court said:

"Under the view I take of this case and have taken all the way through, as held in the first instance, the article was not libelous per se. I later held that where the article was not libelous per se, specific damages should be proven. I still think that is the law. I don't believe it has been proven in this case and, therefore, there is nothing for the jury to decide. The demurrer will be sustained."

Unless the article were libelous per se it was necessary that plaintiff prove special damages in order to recover. Plaintiff does not contend to the contrary, and does not contend he offered any proof of special damages. Plaintiff's contention is the article was libelous per se, and that is the only question to be decided. If the article was libelous per se the case should have gone to the jury for assessment of general damages. If not, the demurrer to the evidence was properly sustained, because special damages were not proved.

Plaintiff contends the article was libelous per se because this court so decided in the former appeal. The contention is not well founded. The ground of the demurrer to the petition was not that the petition failed to state a particular kind of cause of action, but that it failed to state any cause of action. There was some discussion in the former opinion of the question whether the article was libelous per se. One question was whether the article charged plaintiff with a crime in connection with assessment of his land. It was shown there may be defamation without charge of crime, and it was said that, while the offensive language, critically analyzed, did not charge crime, that fact did not make the petition demurrable. The decision of the court on the subject was stated in the second paragraph of the syllabus:

"Rule followed that a cause of action for libel may be stated although the alleged libelous article did not charge the aggrieved party with the commission of a crime defined by statute." (Jerald v. Huston, 120 Kan. 3, syl. P 2, 242 P. 472.)

The opinion contained other observations bearing on whether the printed words were libelous per se. In one part of the opinion it was said the question whether the article was libelous per se or per quod was academic, because the article plus the allegations contained in the petition made out a cause of action for defamation. The decision of the court was stated in the third paragraph of the syllabus:

"In an action for damages for libel, the allegations of plaintiff's petition, together with the alleged libelous matter, considered, and held to state a cause of action against a demurrer thereto." (Syl. P 3.)

The writer dissented because he was of the opinion the allegations of the petition added nothing to the article, and the article itself was not actionable.

In the former opinion the need to allege special damages in order to state a cause of action when the article complained of is not libelous per se was not mentioned. Defendant did not move in the district court for a specification of items of damage, he did not suggest to this court that the petition was demurrable for want of a proper allegation of special damages, and the court was not authorized to speak on the subject.

Plaintiff contends this court reaffirmed its position that the article was libelous per se in the case of Knapp v. Green, 123 Kan. 550, 256 P. 153, wherein the opinion quoted at some length from the former opinion in this case. The quotation consisted of that part of the former opinion devoted to showing it is not necessary for an article to charge commission of crime in order to be libelous. To illustrate that subject, decisions of this court extending from Hetherington v. Sterry, 28 Kan. 426, to Rohr v. Riedel, 112 Kan. 130, 210 P. 644, were reviewed, in which the court had held articles to be libelous per se although no crime was charged. It was not necessary to go over the same ground again, and the collation of cases already made was used to show that the article in Knapp v. Green was libelous per se.

There is nothing else in plaintiff's brief bearing on the question whether the article was libelous per se. A quotation from the opinion in the case of Hanson v. Krehbiel, 68 Kan. 670, 75 P. 1041, appears, but it is confined to a discussion of the subject of general and special damages. Plaintiff does not contend the evidence showing how readers of the article understood it may be considered in solving the question whether the article was libelous per se. He says the evidence was introduced to meet the ruling of the district court that the action was for libel per quod, and not per se. If so, the proof was not extended far enough to establish special damages, which are clearly distinguished from general damages in the opinion in the case of Hanson v. Krehbiel. It is not the understanding of one or several readers which determines whether an article is libelous per se. The question is whether the words on their face, without explanation or extrinsic proof, would necessarily, or as a natural and immediate consequence, cause injury. What somebody understood is immaterial (Dahl v. Hansen, 152 Iowa 555, 559; Thompson v. Sun Pub. Co., 91 Me. 203, 207; J. A. & R. A. Reid v. Prov. Journal Co., 20 R.I. 120, 122; Williams v. Hicks Printing Co., 159 Wis. 90, 106), and the question is one of law for the court.

"Whether a publication is libelous per se or the language thereof will bear the interpretation or convey the meaning ascribed to it in the innuendo, are questions of law for the court." (State v. Huff, 96 Kan. 632, syl. P 2, 152 P. 642.)

The action is one for damages resulting from a tort. The protected interest is good reputation. The claimed invasion is publication of defamatory words. The invasion must cause damages. In the case of Knapp v. Green, 123 Kan. 550, 256 P. 153, the definition of libel found in the criminal code was quoted, and the rule was applied that if libel is defined by statute any language fairly included in the definition is libelous per se, citing Schomberg v. Walker, 132 Cal. 224, 226; Stevens v. Snow, 191 Cal. 58, 62; and Guisti et al. v. Galveston Tribune, 105 Tex. 497, 504.

What help does the statute give in determining whether the article was intrinsically of such a character that it must have caused damages as plaintiff asserts?

In Pollock and Maitland's History of English Law (vol. 2, p 535) we read that the Lex Salica decreed that if a man called another "wolf" or "hare, " he should pay the other three shillings; and if a man called a woman "harlot," and could not prove it, he should pay her forty-five shillings. Here are three actionable words, the speaking of which was regarded as causing specified damages. In the same book we read (p. 536) that it was written in the Norman Custumal that if a man falsely called another "thief" or "manslayer," he should pay damages, and, holding his nose with his fingers, should publicly confess himself a liar--the prototype of modern newspaper retraction. Here...