Moss v. Harwood

• Decision Date: 04 February 1904
• Citation: 102 Va. 386,46 S.E. 385
• Parties: MOSS . v. HARWOOD.
• Court: Virginia Supreme Court

46 S.E. 385

102 Va. 386

MOSS .

v.HARWOOD.

Supreme Court of Appeals of Virginia.

Feb. 4, 1904.

LIBEL—ACTIONABLE PUBLICATIONS—CHARGE OF CRIME—CHARGE PROVOCATIVE OF VIOLENCE—CHARGE INJURIOUS TO GOOD NAME-CONSTRUCTION OF LANGUAGE EMPLOYED— INNUENDO—FEES.

1. A publication stating that plaintiff, a chief of police, had collected certain fines of an official, which fines did not appear by the records of the police court to have been recorded, did not charge plaintiff with the commission of the crime of embezzlement or larceny which is a statutory crime, committed, under Code 1887, § 3716, when a person wrongfully and fraudulently uses, disposes of, conceals, or embezzles any money, etc., or any other property, which he shall have received for another, or by virtue of his office, trust, or employment; or under section 3717, when an officer, agent, or employe of the state, or of any city, town, or county, having the custody of public funds, knowingly misuses or misappropriates the same, or knowingly disposes of them otherwise than in accordance with law.

2. Where the words employed in an alleged libel, interpreted in their usual and ordinary meaning, do not impute a crime, their meaning cannot be enlarged by an innuendo so as to accomplish that purpose.

¶ 2. See Libel and Slander, vol. 32, Cent Dig. § 205.

3. A publication stating that plaintiff, a chief of police, had collected certain fines of a certain officer, which fines did not appear by the records of the police court to have been recorded, is not libelous under Code 1887, § 2897, which provides that all words which, in their usual construction and in common acceptance, are construed as insults, and tend to violence and breach of the peace, shall be actionable.

4. Where the words employed in a libel tend to injure the person libeled in his good name fame, and credit, and to bring him into public scandal, infamy, and disgrace, they are actionable, although not imputing an indictable offense.

5. As it is the duty of the chief of police to collect and report fines, to say of him that he has collected fines, but does not appear to have recorded them, while falling short of an imputation of crime, and not in express terms charging a breach of official duty, yet, when aided by a proper innuendo, does impute to him conduct tending to injure his reputation in the common estimation of good citizens, and is libelous.

Error to Circuit Court, Elizabeth City County.

Action by one Harwood against A. A. Moss. Prom a judgment for plaintiff, defendant brings error. Reversed.

C. C. Berkeley and J. H. Gilkerson, for plaintiff in error.

R. M. Lett and O. D. Batchelor, for defendant in error.

KEITH, P. The first count of the declaration in this case charges that Harwood was chief of police of the city of Newport News, and that on the 23d of November, 1899, in the city of Newport News, A. A. Moss, the mayor of the city, published a certain false, malicious, scandalous, and defamatory libel concerning the plaintiff, as follows: "Your complainant (meaning the said defendant A. A. Moss) charges that the said chief of police (meaning the plaintiff, Harwood) has within the last past twelve months collected certain fines of Officer Padgett, which fines do not appear by the records of the police court to have been reported"—Moss meaning thereby to insinuate and charge, and have it understood, that the plaintiff, Harwood, was guilty of the crime of embezzlement and larceny.

The second count of the declaration charges that the defendant composed and published concerning the plaintiff a certain false, scandalous, malicious, and defamatory libel, setting it out in the same words employed in the first count, and charges that the defendant knew the falsity of the said charge, and that by means of the publication of the same the plaintiff has been greatly injured in his good name, fame, and credit, and brought into public scandal, infamy, and disgrace with and amongst all of his neighbors and other good and worthy citizens of the commonwealth, etc.

The defendant demurred to the declaration, and, while the demurrer does not state in terms that it is to the declaration and each count thereof, we think the language in which the demurrer is couched may be so considered. The circuit court overruled the demurrer, and its action in this respect constitutes the first assignment of error.

The language of the imputed libel is, "Your complainant charges that the chief of police, has within the last past twelve months collected certain fines of Officer Padgett, which fines do not appear by the records of the police court to have been reported."

It is averred that the purpose of the de-fendant by this publication was to charge the plaintiff with being guilty of embezzlement.

It is well settled that: "In determining whether or not the language does impute a criminal offense the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime." Payne v. Tancil, 98 Va. 264, 35 S. E. 725. That case, it is true, was an action for a slander, but in this respect there seems to be no difference between written and spoken words.

We are of opinion that, construing the language employed in the libel in accordance with this rule, it does not justify the interpretation placed upon it by the plaintiff.

Embezzlement is a statutory crime. "If any person wrongfully and fraudulently use, dispose of, conceal, or embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading, or any other property which he shall have received for another, or for his employer, principal, or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another, or by any court, corporation, or company, he shall be deemed guilty of...