Manley v. Harer
| Decision Date | 25 April 1925 |
| Docket Number | 5633. |
| Citation | 235 P. 757,73 Mont. 253 |
| Parties | MANLEY v. HARER et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Broadwater County; W. L. Ford, Judge.
Action by William Manley against Henry Harer and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded with direction.
C. E Pew, of Helena, for appellant.
E. H Goodman, of Townsend, John A. Matthews, of Helena, and Fred W. Schmitz and Frank T. Hooks, both of Townsend, for respondents.
This is an action to recover damages for libel. The complaint embraces three causes of action. Defendants demurred generally to each. The demurrer having been sustained and the plaintiff having refused to plead further, the court ordered judgment entered against him, and from this judgment he has appealed.
The three causes of action are so nearly alike that, in so far as the instant problem is involved, a discussion of one will suffice for all. The innuendo in the second and third is somewhat different from that in the first, but, if the language which is the basis of each clause is libelous per se, the difference in innuendo need not be considered in this opinion. If this language is not libelous per se, it cannot be made so by innuendo. Brown v. Independent Pub. Co., 48 Mont. 374, 138 P. 258.
In the first cause of action, for convenience hereafter referred to as the complaint, the plaintiff avers that for more than five years last past he has been and still is a resident of Broadwater county, "following the occupation of and engaged in teaming, road construction, and repair work of a similar nature, and thereby earning a livelihood for himself and his family"; and that, ever since the first day of March, 1921, and up to the time of the filing of the complaint, he was employed by the board of county commissioners of Broadwater county as a road supervisor. That on or about the 6th of June, 1922, the defendants, acting jointly and in concert, deceitfully, falsely, and maliciously and without privilege, published of and concerning the plaintiff the following libelous writing to wit:
Plaintiff avers that the statements that in his position as road supervisor he does not give to the county value received for the money he draws from the public funds, that he does not put in full time, but draws warrants for full time, that when working or pretending to be working he will have teams standing on the public road, but not working at least 50 per cent. of the time, are false and untrue; and that the publication at all times since the same was made exposed and still exposes plaintiff to hatred, contempt, ridicule, and obloquy, and causes him to be shunned and avoided, impeaches his reputation for honesty and integrity, and at all said times had and still has a tendency to injure him in his occupation, to his damage, etc.
Counsel for defendants argue that none of the language is actionable per se, and, as special damages are not pleaded, the complaint does not state facts sufficient to constitute a cause of action. On the other hand, plaintiff's counsel, while conceding that he has not pleaded special damages, argues, first, that the language is actionable per se; second, even if it be conceded that the language is susceptible of two meanings, one defamatory and one not, it is for the jury to determine the sense in which it was used (citing D'Autremont v. McDonald, 56 Mont. 522, 185 P. 707, and Daniel v. Moncure, 58 Mont. 193, 190 P. 983), and consequently the complaint states a cause of action upon either theory.
In the language of our statute, libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. Section 5690, R. C. 1921.
Words are defamatory per se which upon their face and without the aid of extrinsic proof are injurious to the person concerning whom they are spoken. If the injurous character of the words does not appear from their face when taken in their plain and natural meaning and according to the sense in which they appear to have been used, they are not defamatory per se but are said to require innuendo. 36 C.J. 1150.
"When the words are unequivocal in their import, and obviously defamatory, it is not necessary to employ colloquium or innuendo to explain their application and meaning; but if the words be of doubtful significance, or derive their libelous character not from their own intrinsic force, but from extraneous facts it is necessary to allege the meaning intended, or set forth such extraneous facts by proper averments." Paxton v. Woodward, 31 Mont. 209, 78 P. 217, 107 Am. St. Rep. 416, 3 Ann. Cas. 546. "Words which are defamatory per se do not need an innuendo, and, conversely, words which do need an innuendo are not defamatory per se." 36 C.J. 1151.
When the publication is libelous per se, the plaintiff may recover general damages without allegation or proof of special damages. Paxton v. Woodward, supra. The reason is that words defamatory per se carry the presumption of falsity and damage. 36 C.J. 1151; 17 R. C. L. 264.
To be characterized as libelous per se, the words as used must be susceptible of but one meaning. Brown v. Independent Pub. Co., supra; Shaffroth v. Tribune, 61 Mont. 14, 201 P. 271. If the words are not actionable per se, there can be no recovery of general damages, because in such a case the law, in the absence of pleading and proof to that end, does not presume falsity nor damage. Where the words are not actionable per se, the pleader must state the facts which show them to be libelous, and likewise must plead the resulting injury; he must plead the facts which show the character and extent of the injury he claims to have sustained; he must plead special damages. Ledlie v. Wallen, 17 Mont. 150, 42 P. 289; Lemmer v. Tribune, 50 Mont. 559, 148 P. 338. This is why it is said that a complaint based upon words that are defamatory not per se but per quod (3 Blackstone's Commentaries, 134; Black's Law Dictionary, "Per Quod"), in the absence of an allegation of special damages does not state a cause of action (Brown v. Independent Pub. Co., supra; Nolan v. Standard Pub. Co., 67 Mont. 212, 216 P. 571). (Although, if one does not keep the foregoing distinction in mind, it might appear that the question whether the damages recoverable are general or special is not a material element in stating a cause of action for libel.)
As is indicated above, the law recognizes two classes of damages in suits for defamation: General damages are those which the law presumes actually, proximately, and necessarily result from the publication of the defamatory matter, while special damages are the natural, but not the necessary, result of the alleged wrong, and do not follow by implication of law upon proof of the defamatory words. 36 C.J. 1151; 17 R. C. L. 264.
Where the language is susceptible of two meanings, one defamatory and the other not, it is for the jury to determine in what sense it was used. D'Autremont v. McDonald, 56 Mont. 522, 185 P. 707; Daniel v. Moncure, 58 Mont. 193, 190 P. 983. This does not refer to language defamatory per se but per quod (if defamatory at all), and therefore the two cases last cited do not conflict in any way with the Brown and Shaffroth Cases, as counsel for plaintiff contends. It is true that a jury may disregard the court's advice as to whether or not words are libelous (Harrington v. Butte Miner Co., 48 Mont. 550, 139 P. 451, 51 L. R. A. [N. S.] 369, Ann. Cas. 1915D, 1257) but that does not affect the proposition here considered.
Was the publication libelous per se? To determine that matter, as this court said in Cooper v. Romney, 49 Mont. 119 141 P. 289, Ann. Cas. 1916A, 596, "we need not go beyond fundamental principles as asserted and maintained by almost unbroken authority." Indeed, we need not go beyond the express words of the statute: Libel is a false and unprivileged publication by writing which exposes any person to hatred, contempt,...
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