McGaw v. Webster

• Decision Date: 25 March 1968
• Docket Number: No. 8258,8258
• Citation: 79 N.M. 104,440 P.2d 296,1968 NMSC 47
• Parties: William C. McGAW and Saddlebag Press Publishing Company, Inc., a corporation, Plaintiffs-Appellees and Cross-Appellants, v. A. A. WEBSTER, Jr., alias Patrick J. Hale, Defendant-Appellant and Cross- Appellee.
• Court: New Mexico Supreme Court

Page 296

440 P.2d 296

79 N.M. 104

William C. McGAW and Saddlebag Press Publishing Company, Inc., a corporation, Plaintiffs-Appellees and Cross-Appellants, v. A. A. WEBSTER, Jr., alias Patrick J. Hale,

Defendant-Appellant and Cross- Appellee.

No. 8258.

Supreme Court of New Mexico.

March 25, 1968.

Rehearing Denied May 16, 1968.

Garland, Martin & Martin, Las Cruces, for appellants

Albert J. Rivera, C. C. Chase, Jr., Alamogordo, Smith & Ransom, Albuquerque, for appellee.

OPINION

NOBLE, Justice.

William C. McGaw, editor of the 'Southwesterner,' a newspaper published by Saddlebag Press Publishing Co., Inc., brought an action in three counts against A. A. Webster, Jr. to recover compensatory and punitive damages on account of an alleged defamatory publication by letters sent to certain advertisers of the newspaper. Counts 2 and 3 of the complaint were dismissed by the court. A verdict of the jury awarded plaintiff corporation $20,000 compensatory damages, and judgment was entered pursuant to the verdict. This appeal followed. Plaintiff McGaw and the corporation have presented questions by cross-appeal to be considered only in the event the appeal is determined to have merit.

The complaint alleges that defendant Webster mailed to certain advertisers of the newspaper a letter as follows:

'P.O. Box 1561

Alamogordo, New Mexico

July 19, 1963

'Attention: Advertising Manager

Gentlemen:

May I call your attention, as an advertiser in the 'Southwesterner' of Columbus, New Mexico, to the July 196o issue, the editorial entitled 'Patriotism is as Patriotism Does'.

Since the communist directive of December 1960 from Moscow calling for an attack on all Anti-Communist organizations within the U.S. (Ref: The New Drive Against The Anti-Communist Program, by the Committee on the Judiciary, United States Senate, Eighty-Seventh Congress, First Session, July 11, 1961, obtainable from the Gov. Printing Office, Pamphlet #609588--0, 25cents), the communists, pro-communists, fellow-travelers, dupes and party-line-faithfuls have been busy composing all manner of smear editorials against patriotic organizations, especially the Pro-American John Birch Society.

I ask if you, as a Pro-American, Anti-Communist businessman, plan to support a newspaper which is, evidently, following the communist party-line in attacking patriotic organizations?

Are your advertising dollars being wisely used when this media's editorial policy is such that it supports communist objectives? The Communist criminal conspiracy has openly 'proclaimed it's (sic) dedication to the destruction of the Free Enterprise System.

Mr. Businessman, I ask you to read the July 1963 editorial of the 'Southwesterner' AND SEE IF YOU CONSIDER IT IS IN GOOD AMERICAN TASTE and WORTHY OF YOUR SUPPORT.

'Yours truly,

s/ Patrick J. Hale

Patrick J. Hale'

which, by innuendo, hinted that Webster:

'* * * maliciously intended to lead said firms to believe that the said newspaper was un-American, pro-Communist, or an organ of 'fellow travelers, dupes or party-line-faithfuls,' all terms used by defendant to connote lack of patriotism, or treason or subversion, and intended to lead such advertisers to believe that 'The Southwesterner' was a newspaper which followed the Communist Party line, and that its editorial policy supported Communist objectives. * * *'

Compensatory and punitive damages were asked, but special damages were neither alleged nor proven.

We need not go beyond our own decisions to determine whether those publications are actionable. Del Rico Co. v. New Mexican, 56 N.M. 538, 246 P.2d 206; Chase v. New Mexico Pub. Co., 53 N.M. 145, 203 P.2d 594; Dillard v. Shattuck, 36 N.M. 202, 11 P.2d 543; and Wood v. Hannett, 35 N.M. 23, 289 P. 590, lay down certain controlling principles to be applied in determining whether the alleged defamatory publication is actionable. If the injurious character of the words appear, not upon their face in the usual and natural meaning, they require an innuendo and may become actionable per quod, that is, the publication must result in special damage to the person complaining. Chase v. New Mexico Pub. Co., supra. Because innuendo was alleged in this case, the defendant argues that the pleading itself refutes the contention that the publication is libelous per se. Del Rico v. New Mexican, supra, said:

'* * * If the words need the aid of an innuendo, they are not per se libelous and the fact that the pleader supplies one furnishes rather persuasive proof of a belief on his part that the statements relied on need it. * * *'

However, the contention that pleading innuendo is conclusive that the statements are not libelous per se was rejected in Young v. New Mexico Broadacasting Co., 60 N.M. 475, 292 P.2d 776.

Libel per se was defined in Chase v. New Mexico Pub. Co., supra, as:

"Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or to hinder virtuous men from association with him.'

'The term 'per se' means by itself; simply as such; in its own nature without reference to its relation; and in connection with libel, the term is applied to words which are actionable because they of themselves, without anything more, are opprobrious.'

To determine whether the publication is libelous per se, the letter alone must be construed, stripped of all insinuations, innuendo, colloquium and explanatory circumstances. Chase v. New Mexico Pub. Co., supra; Young v. New Mexico Broadcasting Co., supra. The innuendo pleaded can neither add to nor enlarge the sense of the words themselves. All inneundo, therefore, must be disregarded. We are required to determine whether the letter itself, and without more, is defamatory on its face, within the four corners thereof.

In construing the claimed defamatory article, the language said to be libelous is to be given its plain and natural meaning and to be viewed by the court as people reading it would ordinarily understand and give it meaning, without knowledge or use of any special facts or circumstances. Furthermore, we are committed to the rule that the language claimed to be libelous must be susceptible of but a single meaning and a defamatory meaning must be the only one of which the writing is susceptible. Del Rico v. New Mexican, supra; Dillard v. Shattuck, supra. When tested by these rules, we must conclude that the letter in this case is not libelous per se, and hence not actionable in the absence of allegations and proof of special damages.

We think it is now the generally accepted view that to write of a person or organization as being 'Communist' or a 'Communist sympathizer' or as being 'Communist oriented' is libelous per se. Utah State Farm Bureau Fed'n v. Nat'l Farm. U.S. Corp., 198 F.2d 20, 33 A.L.R.2d 1186 (10th Cir. 1952); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817; Spanel v. Pegler, 160 F.2d 619, 171 A.L.R. 699 (7th Cir. 1947); Grant v. Reader's Digest Ass'n, 151 F.2d 733 (2d Cir.1945); Gallagher v. Chavalas, 48 Cal.App.2d 52, 119 P.2d 408; Toomey v. Jones, 124 Okla. 167, 254 P. 736, 51 A.L.R. 1066.

Looking only at the letter itself, attention is called to the fact that Communists have composed smear editorials against patriotic organizations, especially the John Birch Society. Then follow the assertions (1) that the newspaper 'is evidently following the Communist party-line in attacking patriotic organizations' and (2) that the paper's 'editorial policy is such that it supports communist objectives.' Are these statements, in and of themselves, libelous per se?

These statements only say that the newspaper is evidently doing one of the things that Communists are doing, i.e., attacking patriotic organizations, and that its editorial policy supports the Communist objective of attacking the John Birch Society. When the language of the letter is examined in the light of the rule that to be libelous per se the language must be susceptible of only a single defamatory meaning, it is apparent that this language is not libelous per se. To say that the newspaper, like Communist organs, has attacked the John Birch Society is not the same as saying that it is 'un-American, pro-Communist, or an organ of fellow-travelers, dupes,' or is a Communist party-line-faithful. We are not called upon to decide whether the letter is susceptible of the interpretation given to it by plaintiff's innuendo. The fact that it is susceptible of an interpretation that it has attacked the John Birch Society, a patriotic organization, as have Communist organs, requires the aid of innuendo and prevents the publication from being libelous per se.

Having held this writing not to be libelous per se, there can be no recovery because of the failure to...