Johnston v. Morrison

• Decision Date: 15 April 1889
• Docket Number: Civil 248
• Citation: 21 P. 465,3 Ariz. 109
• Parties: T. W. JOHNSTON, Plaintiff and Appellee, v. R. E. MORRISON, Defendant and Appellant
• Court: Arizona Supreme Court

21 P. 465

3 Ariz. 109

T. W. JOHNSTON, Plaintiff and Appellee, v. R. E. MORRISON, Defendant and Appellant

Civil No. 248

Supreme Court of Arizona

April 15, 1889

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Apache. James H. Wright Judge.

Reversed.

E. M Sanford, for Appellant.

The words are not libelous per se. Words cease to be libelous per se the moment that they require an innuendo to explain what they mean.

When the words used by the defendant do not of themselves convey the meaning which plaintiff would attribute to them, and such meaning results only from some extrinsic matter or fact, it is essential that the extrinsic matter or fact upon which he relies to give them meaning must be set forth in the complaint. Van Santvoord on Pleading, 271, 272; Christal v. Craig, 80 Mo. 373; Legg v. Dunleavy, 80 Mo 563, 50 Am. Rep. 512; Pollard v. Lyon, 91 U.S. 225; Nidever v. Hall, 67 Cal. 79, 7 P. 137; Clark v. Fitch, 41 Cal. 481; Maynard v. Fireman's Ins. Co., 34 Cal. 48, 91 Am. Dec. 672; Townsend on Libel, secs. 335, 336; Van Vechten v. Hopkins, 5 John. 211, 4 Am. Dec. 339, note; Estee on Pleading, 1688; Boone on Code Pleading, 163.

The covert meaning must be explained and the true interpretation brought to light by a prefatory averment. Estee on Pleading, 3635.

Innuendos are not allegations, nor the subject of proof. Van Vechten v. Hopkins, 5 John. 211, 4 Am. Dec. 339, note; Legg v. Dunleavy, 80 Mo. 563, 50 Am. Rep. 512; State v. Corbett, 13 R. I. 289; State v. Mott, 45 N. J. L. 494; Townsend on Libel, 127, 129, 334, 335, 338.

It was the defendant's right to show the natural signification of the words, for, "Where the words are capable of two constructions, in what sense they were intended is a question of fact for the jury." Townsend on Libel, secs. 281, 286; O'Donnell v. Hastings, 68 Iowa 271, 26 N.W. 433; Roberts v. Cander, 9 East, 95. The rule is, "First ascertain the meaning of the words themselves, and then give them the effect any reasonable bystander would affix to them." Hankinson v. Bilby, 16 Mees. & W. 443; Campbell v. Campbell, 54 Wis. 90, 11 N.W. 456.

Defendant should have been allowed to show his motives, objects, intent, and good faith; and to show that the article was published in the public interest and for justifiable purposes, and at least in mitigation of damages. Bronson v. Bruce, 59 Mich. 467, 60 Am. Rep. 307, 26 N.W. 671; Pittsburgh A. and M. Co. v. McCurdy, 114 Pa. St. 554, 60 Am. Rep. 363, 8 A. 230; Bradley v. Cramer, 66 Wis. 297, 28 N.W. 372; Marks v. Baker, 28 Minn. 162, 9 N.W. 679; Crane v. Waters, 10 F. 619; State v. Balch, 31 Kan. 465, 2 P. 609; Briggs v. Garrett, 111 Pa. St. 404, 56 Am. Rep. 274, 2 A. 513.

All the facts and circumstances may be given in evidence by the defendant to show probable ground and to rebut malice. Neeb v. Hope, 111 Pa. St. 145, 2 A. 571; Chapman v. Caldon, 14 Pa. St. 365; Thompson v. Sounding, 15 Nev. 203; Fahr v. Hayes, 50 N. J. L. 275, 13 A. 261.

Defendant is a competent witness under the statute to testify as to the construction of the language as well as plaintiff, and the jury could judge of the weight. Klink v. Colby, 46 N.Y. 434, 7 Am. Rep. 360; Hastings v. Lusk, 22 Wend. 400.

To know if the innuendo was broader than the words naturally bear, the jury were entitled to learn their natural signification. Pollard v. Lyon, 91 U.S. 233; Campbell v. Campbell, 54 Wis. 90, 11 N.W. 456.

Harris Baldwin, for Appellee.

In construing a publication alleged to be libelous, the scope and object of the whole article is to be considered, and such a construction put upon its language as would naturally be given to it. The test is whether in the mind of an intelligent man the terms of the article and the language used naturally import a disgraceful charge. If it does, the publication is libelous per se. More v. Bennett, 48 N.Y. 472; Price v. Whitely, 50 Mo. 439. Under the statutes of California and New York, it is settled that it is libelous per se to falsely impute to a person, in his trade, profession, or business, any kind of fraud, dishonesty, misconduct, incapacity, or unfitness. Sanderson v. Caldwell, 45 N.Y. 405, 6 Am. Rep. 105; More v. Bennett, 48 N.Y. 472; Bergman v. Jones, 94 N.Y. 51; Wilson v. Fitch, 41 Cal. 363; Fitch v. De Young, 66 Cal. 339; Dixon v. Allen, 69 Cal. 528; Bettner v. Holt, 70 Cal. 270.

Any publication is libelous per se which denies to a man the possession of some such worthy quality as every man is supposed to possess, or which tends to bring him into public hatred or disgrace, or to degrade him in society, or to expose him to hatred, contempt, or ridicule, or which reflects upon his character, or imports something disgraceful to him, or throws contumely on him, or odium, or tends to villify him or injure his character or diminish his reputation, or which is injurious to his character, or shows him to be immoral or ridiculous, or induces an ill opinion of him, or detracts from his character as a man of good morals, or alters his position in society for the worse, or imputes to him a bad reputation, or degradation of character, or ingratitude, and all defamatory words injurious in their nature. Townsend on Slander and Libel, 3d ed., secs. 176, 177; Feder v. Herrick, 43 N. J. L. 24; Crane v. Riggs, 17 Wend. 209; Crosswell v. Weed, 25 Wend. 521.

In an action for libel it is not necessary for the plaintiff to prove affirmatively that he has sustained damage in consequence of the libelous publication. The law not only imputes malice to the defendant, but presumes that damages have been sustained by the plaintiff. Sanderson v. Caldwell, 45 N.Y. 398; Lick v. Owen, 47 Cal. 252.

The rule is, that when the publication is actionable upon its face, and is not uttered on a lawful occasion and with justifiable motives, the law infers malice, although none be proved. 3 Sutherland on Damages, pp. 660, 661.

An injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Rev. Stats. Arizona, p. 708, sec. 406. Such presumption cannot be rebutted by evidence. Lick v. Owen, 47 Cal. 252. The averments of the complaint are sufficient. 1 Estee's Pleadings, 3d ed., sec. 1698.

The introduction by the appellant in evidence of certain indictments referred to in the libel does not establish the truth of the publication so far as the libelous parts are concerned. Price v. Whitely, 50 Mo. 439.

The publication being actionable per se, the appellant cannot show good faith, motive, or purpose, neither can he show his intent. Estee's Pleadings, secs. 1668, 1670.

Porter, J. Barnes, J., concurs. Wright, C. J., dissenting.

OPINION

The facts are stated in the opinion.

PORTER, J.

This is an action for libel, alleging that the defendant printed and published a certain publication which was a libel on defendant. The portion of the publication as to which most of the testimony related is as follows: "A certain gang of rustlers, in the southern part of the county, known as the 'Clanton-Stanley Outfits,' who had been a terror for years, were last summer 'run to ground' and lodged in the county jail. The notorious Fin Clanton was put upon trial with fifteen indictments for cattle stealing against him. Previous to the arrival of a near relative of the district attorney, [thereby meaning and referring to this plaintiff,] Clanton had retained two lawyers of acknowledged ability to defend him; but, when this new 'actor' [thereby meaning this plaintiff] appeared upon the scene, his relationship [meaning plaintiff's relationship to the district attorney of Apache County, said territory,] secures his [meaning plaintiff's] employment by Clanton. Such pressure is brought to bear that Clanton is convicted and sentenced to ten years at Yuma, and now begins the 'fine work,' [meaning and intending by 'fine work' the unlawful bribing of said district attorney by this plaintiff]. Mr. Relative [meaning this plaintiff] appears for Stanley, against whom there is at least three or four sure cases, and suggests that, with the consent of his [meaning plaintiff's] brother-in-law, the district attorney, a compromise has been effected, to the effect that Stanley is to be banished from the territory of Arizona, and he [Stanley] shall not even be required to plead guilty [meaning and intending thereby that this plaintiff had unlawfully and corruptly bribed said district attorney and wrongfully induced said district attorney to permit this plaintiff's client, said Stanley, to leave the territory of Arizona without pleading guilty to the indictments standing against him, and thus escape punishment]."

If the words "fine work," as set forth in the complaint are actionable per se, no construction of the language is needed. We do not think they are actionable per se, and, not being so, plaintiff in his pleadings places his version of the language, and he must be bound by it. We will take it for granted that his pleadings are all that is required, as not being necessary to state extrinsic matter. We incline to think there has been a compliance with our statutes. But his proofs must be confined to his allegations of his meaning of the defamatory words published. In Odger's Libel and Slander, on page 99, the author says: "In arriving at the meaning of the defendant's words, the court and jury are often materially assisted by an averment in the plaintiff's statement of claim, called an 'innuendo.' This is a statement by the plaintiff of the construction which he puts on the words himself, and which he will endeavor to induce the jury to adopt at the trial. Where a defamatory meaning is apparent on the face of the libel itself, no innuendo is necessary, though even there the pleader...