Moritz v. Medical Arts Clinic, P. C., 10036
Decision Date | 19 January 1982 |
Docket Number | No. 10036,10036 |
Citation | 315 N.W.2d 458 |
Parties | Mrs. David MORITZ (Judy), Plaintiff and Appellant, v. MEDICAL ARTS CLINIC, P. C., and Lynn W. Aas, Defendants and Appellees. Civ. |
Court | North Dakota Supreme Court |
Frederick E. Saefke, Jr., Bismarck, for plaintiff and appellant.
Zuger & Bucklin, Bismarck, for defendants and appellees; argued by Murray G. Sagsveen, Bismarck.
Plaintiff appeals from a summary judgment dismissing her complaint and from an order allowing attorney's fees.
In August of 1979, plaintiff compromised and settled a suit she had brought for compensatory and punitive damage against a hospital and against a doctor who was a stockholder and employee of defendant Clinic.
Sometime later, plaintiff received the following letter dated December 6, 1979, written by the manager of the defendant Clinic.
Plaintiff then brought an action against Medical Arts Clinic, the Clinic manager, and 23 of the physicians associated with the Clinic alleging that the letter is defamatory and was published.
The Clinic and the doctors brought a motion before Judge Berning to dismiss the action. The court treated it as a motion for summary judgment under Rule 12(b)(5) North Dakota Rules of Civil Procedure, and pursuant to Rule 21 and 56 thereof dismissed the action against all 23 of the doctors named in the complaint but otherwise denied the motion to dismiss allowing the action against the Clinic and its manager to continue. No appeal has been taken from this dismissal. Subsequently Judge Berning found cause to recuse himself, and as a result Judge Beede was assigned to the case.
After discovery proceedings, the Clinic made a motion before Judge Beede for summary judgment of dismissal, which was granted. 1 The Court also found Plaintiff's claim for relief to be frivolous and granted a motion allowing attorney's fees to the Clinic in the amount of $7,611.00. Judgment was entered and plaintiff has appealed. This Court is required to determine if granting the motion for summary judgment was appropriate and whether the granting of attorney fees under Section 28-26-01 was proper.
We shall first deal with the motion and the matter of the alleged defamation.
Section 4 of Article I of the North Dakota Constitution provides as follows:
2 North Dakota Century Code Section 14-02-01 provides that every person has the right of protection from defamation. This court in McCue v. Equity Cooperative Publishing Co. of Fargo, 39 N.D. 190, 167 N.W. 225 (1918), said that 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.
North Dakota Century Code Ch. 14-02, Personal Rights, classifies defamation as being either libel or slander.
Civil libel is defined in NDCC § 14-02-03, as follows:
"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."
Lauder v. Jones, 13 N.D. 525, 101 N.W. 907 (1904) rules that in order to render words defamatory the defamation need not be in direct terms. Defamation may be made indirectly by insinuation, by sarcasm, or by mere questions as well as by direct assertion in positive terms and it is not less actionable because made indirectly; and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory.
The court observed:
This principle of law was affirmed in Syllabus P 2 in Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.2d 247 (1946). There is no question that summary judgment is not warranted if the letter is capable of two meanings-one defamatory and the other innocent. McCue v. Equity Coop Pub. Co. of Fargo, supra.
If an innuendo is involved, the question of whether the alleged defamation is fairly warranted by the writing is one of law for the court to decide. Upon finding a reasonable possibility that the ascribed libelous meaning can be given to the material alleged to be defamatory, it is for the jury to determine if the libelous meaning was intended or conveyed. Ellsworth v. Martindale-Hubbell Law Dictionary, 69 N.D. 610, 289 N.W. 101 (1940).
In Restatement Second, Torts P 614, the function of the court and jury is discussed. We quote:
In comment (b) to this section it is said:
This is also the holding in Luthey v. Kronschnabl, 239 Wis. 375, 1 N.W.2d 799 (1942) Accord 50 AmJur2d, Libel and Slander, § 22. Normally these authorities contemplate the court making its determination after hearing evidence such as a motion for directed verdict. Likewise on a motion for summary judgment if there is no genuine issue of material fact, the court must determine whether the statement is capable of a defamatory meaning.
The meaning plaintiff has ascribed to the letter in this case is stated in Paragraphs V and XII of the Complaint as follows:
In determining whether words are libelous and actionable, the entire letter should be construed for the purpose of determining the meaning of that portion complained of. Dvorak v. Kuhn, 175 N.W.2d 697 (N.D.1970). The sense or meaning of the document is determined according to its natural and popular construction. State v. Haider, 150 N.W.2d 71 (N.D.1967); Waldo v. Journal Co., 45 Wis.2d 203, 172 N.W.2d 680 (1969); Silence v. Journal Star Printing Co., 201 Neb. 159, 266 N.W.2d 533 (1978).
"The general rule concerning the construction of words is that (in the absence of extrinsic circumstances which convert innocent words into defamatory words) the words must be construed in their natural and ordinary meaning which reasonable men of ordinary intelligence would give them, they must be construed as persons generally understand them and according to their ordinary meaning." L. H. Eldredge, The Law of...
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