McCue v. Equity Co-Op. Pub. Co. of Fargo

• Citation: 39 N.D. 190,167 N.W. 225
• Parties: McCUE v. EQUITY CO-OP. PUB. CO. OF FARGO et al.
• Decision Date: 23 February 1918
• Court: United States State Supreme Court of North Dakota

39 N.D. 190

167 N.W. 225

McCUE

v.EQUITY CO-OP. PUB. CO. OF FARGO et al.

Supreme Court of North Dakota.

Feb. 23, 1918.

Syllabus by the Court.

In this state every man may freely write, speak, and publish his opinions on all subjects, but is responsible for an abuse of that privilege to any person injured by such abuse.

Under the laws of this state every person has, subject to the qualifications and restrictions provided by law, the right to protection from defamation by libel or slander, and any person who abuses the privilege of freedom of speech and liberty of the press by maliciously publishing libelous matter of or concerning another is liable to the person libeled for the injury occasioned by the publication.

Any “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,” is libelous. Comp. Laws 1913, § 4352.

If there is any doubt as to the meaning of a publication claimed to be libelous, so that extrinsic evidence is needed to determine whether it is of actionable character, or if such publication is reasonably susceptible of two constructions, the one innocent and the other libelous, then it is a question for the jury which construction is the proper one.

A general demurrer to a complaint in an action for libel will be overruled if any of the statements therein, when construed in connection with the remainder of the article of which it forms a part, is reasonably susceptible of the libelous meaning ascribed thereto in the complaint.

Additional Syllabus by Editorial Staff.

A demurrer admits the truth of all issuable, relevant, material facts well pleaded.

A general demurrer to a complaint in an action for libel admits allegations of falsity and publication and malice and correctness of innuendo as averred, unless it attributes a meaning not justified by the words or by the extrinsic facts with which they are connected.

A complaint charging the publication of the statement of plaintiff, McCue, “McHugh or McCue-take your choice-they are a fine pair and stand for the same proposition,” admitted by demurrer, aided by the allegation that McHugh had been charged by certain newspapers and persons as being a thief, a rogue, and a rascal and engaged in crooked, fraudulent, and disreputable business practices, and in cheating the farmers and fraudulently and corruptly manipulatingthe prices of grains and weighing and grading grains, stated a cause of action.

A complaint charging the publication of a statement that plaintiff, an Ex Attorney General, had bragged that he was raising a slush fund to help defeat the candidates for the Supreme Court having the Nonpartisan League indorsement, did not state a cause of action.

A complaint charging the publication of a statement that plaintiff, a former Attorney General, had been so blind to the operation of blind pigs that the people discarded him on the first opportunity, did not state a cause of action.

Appeal from District Court, Cass County; Pollock, Judge.

Action by T. F. McCue against the Equity Co-operative Publishing Company of Fargo and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.

Grace and Robinson, JJ., dissenting.

William Lemke, of Fargo, for appellants. W. S. Lauder, of Wahpeton, for respondent.

CHRISTIANSON, J.

This is an action for libel. The defendants interposed a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant appeals to this court.

The complaint, the sufficiency of which is the sole question here, is as follows:

For his cause of action herein the plaintiff alleges and shows to the court:

(1) That during the times hereinafter mentioned the defendant the Co-operative Publishing Company was and still is a corporation duly organized, created, and existing under the laws of the state of North Dakota, and having its main office and principal place of business at the city of Fargo, in Cass county, N. D. That during said times the said defendant the Co-operative Publishing Company published and still publishes a weekly newspaper at Fargo, N. D., known as the Co-operators' Herald. That the defendant A. M. Baker was at said times and still is the editor and manager of said newspaper. That said newspaper has a wide circulation among the people throughout the state of North Dakota, and in adjoining states, and is read by many persons in the said state of North Dakota and elsewhere.

(2) That at the times hereinafter mentioned, the plaintiff was, and for a long time prior thereto had been, an attorney and counsellor at law, duly admitted and licensed to practice as such in all the courts of the state of North Dakota, and in the federal courts, and having his office and place of business at Carrington, in Foster county, N. D. That at said times, and for many years prior thereto, plaintiff was and had been actively engaged in the practice of his said profession at said Carrington and elsewhere, and was and had been an attorney at law in good repute and had conducted and tried many important actions in the district courts of the state of North Dakota and the Supreme Court of said state, and also in the federal courts, and had and enjoyed in a high degree the confidence and respect of the community generally as a lawyer of ability and integrity, and was and had been in receipt of a large income derived from his professional services as a practicing attorney as aforesaid. That during said times and for a long time prior thereto plaintiff had enjoyed throughout the state of North Dakota and elsewhere a good reputation as a man of personal integrity and as a business man who uniformly dealt honestly and fairly with those with whom he did business. That during said times and for a long time prior thereto the plaintiff had and still has a large acquaintance throughout the state of North Dakota among the business and professional men of said state.

(3) That the said defendants maliciously wishing, intending, and contriving to injure plaintiff in his good name, fame, and standing as a practicing lawyer and as a man and business man, and maliciously wishing, intending, and contriving to bring plaintiff into public disrepute as a lawyer and man and business man, and to cause him to be shunned and avoided by the people throughout the state of North Dakota and elsewhere, wrongfully and maliciously printed, published, and circulated in the columns of the said Co-operators' Herald, in its issue of August 11, 1916, on its editorial page and in large bold-face type, of and concerning plaintiff, the following false, malicious, and libelous article, to wit:

“A Difference Without Much Distinction.

Last week the Herald ran an editorial in which reference was made to an alleged railroad trip of Secretary McHugh and the Attorney General of North Dakota.

The spirit of the editorial was all right but we got the wrong pig in the dead fall.

Secretary McHugh can establish an alibi. It was another person and not the ‘$10,000 Beauty’ who sat and conversed with Mr. Linde.

The Herald wants to print the truth-hard as it is to tell all the truth about the Minneapolis Chamber of Commerce and the stalwart gang in North Dakota.

Therefore we hasten to correct ourselves-it was another McCue-one T. F. McCue of Carrington, who was commiserating with Mr. Linde and bragging, so it is alleged, that he was raising a fund to help defeat the candidates for the Supreme Court who have the Nonpartisan League indorsement.

With McCue collecting an alleged ‘slush fund’ to defeat the candidates of the League there ought to be no question of their election. McCue was formerly Attorney General of North Dakota but he was so blind to the operation of the blind pigs that the people discarded him on the first opportunity.

McHugh or McCue-take your choice-they are a fine pair and stand for the same proposition.”

That the defendants intended by publication of said article to charge and convey, and did thereby charge and convey, to the readers of said newspaper that plaintiff was wrongfully and unlawfully engaged in the business of collecting a fund of money to be used wrongfully, unlawfully, and corruptly to defeat the candidates of the said Nonpartisan League for the Supreme Court of this state, and that plaintiff was actively engaged in corrupting the morals of the people and voters of the state of North Dakota by the unlawful use of money in purchasing votes to defeat candidates for the high office of justice of the Supreme Court of this state, and meaning thereby and intending to charge and convey that as a man plaintiff is and was personally corrupt and disreputable, and that as a business man plaintiff is and was dishonest, corrupt, crooked, and contemptible, and that plaintiff was engaged in willfully violating the corrupt practice act of the state of North Dakota and was engaged in the commission of criminal acts. That the persons who read said article so understood its meaning and import, and many of the persons who read said article believed the said matters and things therein charged and conveyed to be true. That the said charges made against plaintiff in said article as aforesaid were and are each and all absolutely false, and were known to be false by the said defendants when the said article was published as aforesaid.

(4) That said article was widely read by many of the men engaged in the grain business and by other business men and professional men and farmers throughout the state of North Dakota and was frequently discussed by the people of the state of North Dakota.

(5) Plaintiff further alleges that one McHugh, being the McHugh mentioned in said article, is secretary of the Chamber of Commerce at the city of Minneapolis,...