Murphy v. Farmers Educational and Co-op. Union of America, North Dakota Division, 7503

• Decision Date: 27 October 1955
• Docket Number: No. 7503,7503
• Citation: 72 N.W.2d 636
• Parties: William MURPHY, Plaintiff and Respondent, v. FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION commonly known as North Dakota Farmers Union, a corporation, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 636

72 N.W.2d 636

William MURPHY, Plaintiff and Respondent, v. FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION commonly known as North Dakota Farmers Union, a corporation, Defendant and Appellant.

No. 7503.

Supreme Court of North Dakota.

Oct. 27, 1955.

Syllabus by the Court.

1. In determining the actionable quality of words claimed to be libelous in a newspaper article, the entire writing, including the title or headlines, must be considered. And particular words or phrases must be construed in connection with remainder of the article of which they form a part.

2. A demurrer to a complaint in an action for libel based upon an alleged defamatory newspaper article which is pleaded in full 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, are reasonably susceptible of the libelous meaning alleged in the complaint.

3. A defamatory publication is libelous per se when without the aid of innuendo it must be presumed to expose the plaintiff to hatred, contempt, ridicule or obloquy, or cause him to be shunned or avoided, or have a tendency to injure him in his occupation.

4. In an action for libel based on a newspaper article charging a public official with failure to discharge the duties of his office, it was proper for the trial court to instruct the jury as to the statute defining nonfeasance in office.

5. Where in an action for libel based on a published article libelous per se, innuendo if pleaded, is harmless and may be treated as surplusage, and if the remainder of the article is sufficient to show that the article is libelous per se, the action may be maintained.

6. Where in an action for libel the defendant admits that the article complained of was published as alleged in the complaint, the questions for the jury are, first, whether the article was true, and if not true, the amount of damages to be awarded.

7. Where in an action for libel based upon a defamatory publication in which the defendant makes charges against the plaintiff, a public officer of failure to discharge his official duties, and such charges are false, the publication is libelous per se.

Quentin Burdick, Fargo, for defendant and appellant.

Hjellum, Weiss & Nerison, Jamestown, for plaintiff and respondent.

SATHRE, Judge.

This is an action for libel. The defendant made a motion to strike part of the complaint. Upon denial of the motion to strike, defendant interposed a demurrer to each of the four causes of action alleged in the complaint. The demurrers were overruled and defendant was given thirty days within which to answer. Defendant answered by general denial, and further alleged that the complaint did not state facts sufficient to state a cause of action; that the alleged defamatory words set forth in the complaint are true, and that the defamatory words complained of constitute fair comment of a public official. The case was tried to the court and a jury. The jury returned a verdict for the plaintiff. Judgment was entered accordingly and the defendant appealed from the judgment and the whole thereof.

The complaint, the sufficiency of which is attacked is as follows:

Plaintiff for his cause of action against the defendant alleges:

'1.

'That the Defendant is now and has been at all times mentioned in this Complaint a domestic corporation.

'2.

'That the North Dakota Union Farmer, a newspaper published semimonthly in the City of Jamestown, North Dakota, with additional entry at Frederic, Wisconsin, is and at all times mentioned in this Complaint has been the official organ of the Defendant; that said newspaper enjoys a wide circulation among the citizenry of North Dakota, principally among farmers.

'3.

'That on June 16, 1952, the Defendant, through its official organ, the North Dakota Union Farmer, did knowingly, intentionally, wilfully and maliciously print, publish and cause to be circulated among its subscribers, purchasers and others in a regular issue of said paper of that date, the following statements, to-wit:

'(a) In a heavily outlined rectangle on page one:

"Inside Stuff

"What's the 'inside' of the dairy industry of North Dakota. This being Dairy Month, you'll probably be interested in reading about it on Page 6, this issue.'

'(b) On page six, under a headline, 'June 'Dairy Month' Points Up Problems Of ND's Dairy Industry':

"Victims of 'Centralizers'

"North Dakota is known as a 'butterfat' state. Only a small portion of the total milk production in the state is sold as 'whole milk'. This is true for a number of reasons: sparse herds, seasonal milk production, long distances, bad winters which hamper delivery.

"A great percentage of the milk is separated on the farms. At infrequent intervals the cream is delivered at 'centralizer' way stations--it stands in unsanitary places--is handled by people who handle the cream as 'an accommodation'--and often the cream sits at a railroad station in the hot sun or freezes in cold weather. The total result is that the state has a reputation for 'poor' butter.

"By the very nature of their operations, 'centralizers' are not interested in 'quality' butter. Quality butter can be made only from fresh sweet cream--and because of the time-lag set-up of the centralizers--from farm, to cream station to processing plant--sweet cream is an impossibility and poor butter is the result.'

'(In bold face type)

"But the big centralizers like Fairmont, Armour, Swift, Cudahy, and Mandan (in North Dakota) control the pricing of butter and since almost all of their butter is of poor quality, they have a stake in poor quality production and they favor and maintain a pricing system of butter which protects poor quality.

"But this pricing system does not work to the advantage of the North Dakota dairy farmer. He takes a low score on his butterfat but the centralizers take a big price for the finished 'poor' butter. Proof of this can be found on the market places. There is only a cent or fraction difference between high score butter and low score butter. But the farmers takes a very low price for low-score cream.

"There is little incentive for farmers to produce better quality as there is in the case of premium wheat, premium durum, barley, etc.

"Dairy Organization

"The big centralizers also dominate the American Butter Institute and the American Dairy Association. Ostensibly these organizations are established to encourage the dairy industry--make it more profitable for the farmers--increase use of dairy products,' etc., etc.

'(In bold face type)

"But the big centralizers levy a heavy check-off from the farmer for each pound of milk or butterfat that is marketed and then, in effect, use the funds to 'sell' consumers second grade dairy products.

'(In bold face type)

"At the same time the big centralizers like Swift, Armour, Cudahy and others are using the farmers' money to help pay advertising costs, these same big companies are spending millions of dollars to promote the increased use of butter substitutes--principally oleomargarine.

"Dairy Commissioner

"Furthermore, in North Dakota you have a state official, the State Dairy Commissioner, Bill Murphy, spending most of his time acting as the errand boy for the ADA--personally supervising the cream check deductions every spring and enjoying ADA expense accounts that nearly equal his state pay. This is wrong. Particularly when ADA is completely dominated by the big centralizers.

"The Dairy Commissioner has, as one of his principal duties, the job of enforcement. It is a strange sight then to see an enforcement officer soliciting funds--it's like having a police chief soliciting funds for advertising in a police handbook from the tavern operators. And farmers are given no general accounting of how the funds are used.

'(In bold face type)

"Anyone reading the Dairy Record (the industry's magazine) could find out that the dairy enforcement division in Minnesota reports a number of arrests each week. No such arrests have ever been reported in this state. Apparently the dairy commissioner is more concerned with collecting funds for the centralizers' ADA than he is with performing his job as enforcement officer and supervisor of the industry in the farmers' behalf.

"A few year ago, a number of bills were introduced in the state legislature that would correct some of the problems of milk distribution in the state. Something that the Dairy Commissioner and the State Department of Agriculture should have supported vigorously. Instead, they led the fight against the bills.

"Dairying Has a Place

"With all the thousands upon thousands of dollars which farmers of this state have kicked into the ADA and with the thousands upon thousands which taxpayers have paid to maintain the Dairy commissioners department, no real effort has been made to promote the dairy industry in this state.

"The only good work--and it has been considerable considering the funds allotted to it--has been accomplished by the small group of earnest scientists and trained men at the NDAC'.

'4.

'That the statements which refer to Bill Murphy and to the Dairy Commissioner are directed at the Plaintiff William Murphy and were deliberately designed to, and did convey to the readers of the North Dakota Union Farmer the fact that the person to whom said statements referred was the Plaintiff, and said statements are false and defamatory.

'5.

'That at all times the Plaintiff has been a man of ability, integrity, honesty and industry and has at all times since becoming Dairy Commissioner of the State of North Dakota diligently, honestly, conscientiously and industriously pursued the duties of said office to the best of his ability.

'6.

'That the aforesaid statement:

"Furthermore, in North Dakota you have a state official, the State Dairy Commissioner, Bill Murphy, spending most of his time acting as the errand boy for the ADA--personally supervising the cream check deductions...