Appeal
from City Court of Anniston; Thomas W. Coleman, Jr., Judge.
Action
for libel by J. W. Galliher against the Labor Review
Publishing Company. Judgment for plaintiff, and defendant
appeals. Reversed and remanded.
The
libelous matter is set out in the opinion of the court, and
as set out was contained in the first count, which was
stricken on demurrer. The other counts in the complaint were
as follows: "(2) Plaintiff claims of defendant the other
and further sum of $5,000 as damages for falsely and
maliciously publishing of and concerning the plaintiff the
matter set out in the first count of the complaint as therein
alleged, and which is made a part hereof. Plaintiff avers
that he is now, and was at the time of said publications
engaged in the business of taking contracts from the public
for the construction of houses and other structures. To carry
out his said contract it was necessary for plaintiff to
employ in such work a large number of mechanics. And
plaintiff avers that by said publication the defendants meant
to say that plaintiff was unfair in his dealings and
settlements with his employés, and thus prevent plaintiff
from employing the mechanics whose services were necessary in
carrying out and performing his said contract, whereby the
plaintiff has been damaged," etc. (3) Same as 2, down to
and including the words "buildings and other
structures," and adding: "That the said defendants
meant by making such publication to say to the public that
this plaintiff was unfair and dishonest in carrying out his
contract for his customers, and thereby prevent plaintiff
from securing contracts for the erection of buildings and
other structures. And plaintiff avers that by reason of such
publication he has been injured in having the public to
believe from such publication that he was unfair and
dishonest in performing said contract." (4) Same as 2
down to and including the words "a part hereof" and
adding: "And plaintiff avers that said defendant meant
and intended by such publication that the plaintiff was
unfair and dishonest in his dealings, would not comply with
his contracts, would not make fair and honest settlements in
his business contracts and agreements, and was unfair and
dishonest and unworthy of being trusted by the public, and
was unworthy of being recognized as a fair and honest and
upright citizen. Wherefore defendant was humiliated and
injured." (5) Same as 2, down to and including the words
"a part hereof," and adding: "Plaintiff avers
that said publication was made in the issue of said paper
published under date of July 4, 1903; that upon such
publication plaintiff notified this defendant not to repeat
said publication in the next issue of said paper, or any
subsequent issue thereof. And plaintiff avers that his said
request has been ignored and disregarded by said defendants
and the said publication has been made and repeated in the
issues of said Labor Review of July 11, 18, and 25, and
August 1, 1903. And plaintiff avers that said publication and
its said several repetitions were intended by said defendants
to prejudice the public mind against the plaintiff in his
business of contracting and prevent him from securing
contracts from which and out of which plaintiff might make
his living expenses; plaintiff being engaged then and now in
the business of contracting for the erection of buildings and
other structures; also to prevent the plaintiff from
employing mechanics in a sufficient number to enable
plaintiff to carry out and perform the said contract, and
also to humiliate this plaintiff in the minds of the public
and make upon the public the impression that plaintiff was
dishonest and unfair and unworthy of credit and unworthy of
confidence or trust, and that plaintiff was unfair and
dishonest in his dealings; and plaintiff avers that said
publication as aforesaid, and its repetition afterwards in
disregard of plaintiff's warning, was and is malicious
and injurious to plaintiff in the said sum of $10,000."
Demurrers
were interposed to the first count as follows: "(1) It
fails to show any cause of action against these defendants.
(2) It fails to show that plaintiff was defamed or otherwise
injured in the publication therein set out. (3) It contains
no averment of any special damage alleged to have been
sustained by the plaintiff by reason of such publication. (4)
The words used in the publication set out therein charge no
indictable offense. They impute no fraud, dishonesty, or
other moral turpitude to the plaintiff, nor tend in any way
to render him odious in public estimation, or to exclude him
from respectable association, and no special damages are
alleged therein. (5) The words used in such publication are
not actionable per se." These grounds were filed to the
second count, with the following additional grounds
"(6) The words used in said publication in the second
count do not charge that plaintiff was unfair in his dealings
and settlements with his employés. (7) Said count does not
show that by reason of said publication plaintiff was
prevented from employing mechanics, etc. (8) It does not show
that plaintiff had at the time of said publication, or has
had at any time since, any contracts to perform and carry out
which he was prevented from carrying out and performing by
reason of such publication, and hence fails to show
sufficient facts to support the allegation of damages therein
contained. (9) For that said publication was a privileged
communication between defendant and the Carpenter's Union
No. 376, and was published in the interest of and for the
protection of said union, and not for the purpose of injuring
plaintiff in any way, as is sufficiently shown by the
publication itself, and no action will lie against these
defendants for making the publication under the instruction
of said Carpenter's Union. (10) There is no averment in
the complaint that said Carpenter's Union instructed, or
that the president or the financial secretary thereof
instructed, the Labor Review Publishing Company, or T. J
Lamar, or Charles Lamar, to make said publication with
malicious intent. (11) For that it shows on its face that the
publication is not falsely made. (12) For that it shows on
its face that it is not maliciously made. (13) For that the
language of said publication is not capable of the
construction placed upon it by the pleader in said count, and
said innuendo is not supported by the language used in above
publication, and is not a proper or correct inference
therefrom. (14) For that there is nothing in the libel or
publication complained of in itself which subjects the
plaintiff to ridicule, disgrace, or infamy, or tends to
injure him in his business." All the demurrers
heretofore filed were filed to counts 3, 4, and 5, with the
following additional grounds: "(15) For that the alleged
libelous matter set forth in said count does not warrant or
justify the innuendoes laid in said counts. (16) Because the
innuendoes contained in said count enlarge and add to the
fair and proper use of the matter alleged to be
libelous." To the fifth count, because it incorporates
several different and distinct causes of action, and because
the gravamen of the supposed cause of action therein alleged
is the repetition of the publication after having been warned
by plaintiff not to repeat it, and fails to show cause of
action. Demurrers were interposed to the complaint as a
whole, because it was nowhere averred therein that the name
of the plaintiff was not...
