Paxton v. Woodward

• Decision Date: 12 October 1904
• Citation: 31 Mont. 195
• Parties: PAXTON v. WOODWARD.
• Court: Montana Supreme Court

31 Mont. 195

PAXTON

v.WOODWARD.

Supreme Court of Montana.

Oct. 12, 1904.

Milburn, J., dissenting in part.

Appeal from District Court, Gallatin County; Wm. L. Holloway, Judge.

Action by Cyrus Paxton against A. J. Woodward. Judgment for defendant, and plaintiff appeals. Reversed.

Jno. A. Luce, for appellant.

Hartman & Hartman, for respondent.

LESLIE, Special Judge (sitting in place of HOLLOWAY, J., who was disqualified).

This is an action to recover damages for libel. A trial of the cause in the court below resulted in a verdict for the defendant. Plaintiff moved for a new trial, which was denied, and from, the judgment and the order overruling said motion the plaintiff appeals.

The complaint embraces two seperate counts, in each of which plaintiff claims damages in the sum of $5,000. The first count is for the publication of a certain alleged false, malicious, and unprivileged communication on July 13, 1901, in the Avant Courier, a newspaper of general circulation, which publication plaintiff alleges tended to and did injure him in respect to his profession of school-teacher. The second count is for a certain other false, malicious, and unprivileged publication in said newspaper of August 24, 1901. Answering each count, the defendant admits the publication of said two articles, denies they were false, malicious, or unprivileged, or that they tended to or did injure plaintiff in his profession, or that he was injured in any sum whatever. For further answer to each count the defendant, by affirmative averments, pleads the truth of the matter contained in said publications, and also pleads certain facts in mitigation, not necessary to enumerate. The plaintiff demurred to each defense in the answer upon the ground that the same did not state a defense. This demurrer was overruled, and plaintiff replied.

1. The court did not err in overruling the demurrer to the answer. It is proper to suggest at this time that the first count of the complaint states a cause of action. The article, as set forth in this count, is as follows:

‘As to Paxton's popularity as a teacher it can be illustrated by the fact that out of forty-five children in the district but four or five were attending when the superintendent visited the school last week. This is the only school Paxton has taught in the country, and for the good of the schools, I hope it will be the last one. He taught one term in Jefferson, and one in Madison country and they want no more of him. The statements in the Chronicle are known to be false here. We knew that Paxton was a man of many attainments, but did not know that he was a common liar before. As he has gone to the Crow reservation now he has probably found his level.”

Whatever may be said of other portions of the foreign article, to publish, by a written charge, of an individual, that he is a common liar, is an imputation tending to expose such individual to hatred, contempt, ridicule, or obloquy, or injure him in his occupation; and if untrue, and not privileged, is libelous per se, and actionable. Such is the very nearly universal conclusion of the courts where this question has been adjudicated. A collection of the cases relating to this subject may be found in 18 Am. & Eng. Enc. of Law (2d Ed.) p. 921. See, also, Townshend Libel & Slander,§ 177.

But returning to the question presented by the demurrer, in the construction of language regard is to be had to the words employed, and the meaning which, under all the circumstances of their publication, may be presumed to have been conveyed to those to whom the publication is made. While the written charge, “We knew that Paxton was a man of many attainments, but did not know that he was a common liar before,” is, in its nature, libelous per se, and needs no colloquium or innuendo to illustrate its application or meaning, and the vice imputed to plaintiff by the words standing alone is unqualified, and as broad as language can make it, yet, if the defamatory language is connected with other language which limits or affects its meaning, or might tend to mitigate the damage, its construction must be in relation to such other language, and in arriving at the sense in which the language is employed it is proper to consider the cause and circumstances of its publication and the entire language used. It is apparent on its face that the publication in question was a part of an article published in response, in part at least, to certain statements contained in the Chronicle. The matter set forth in the answer, upon which defendant relies for justification, is the history of a controversy which continued for some time between the plaintiff and the defendant, and the publication in question was a part of one of the articles constituting this controversy. The defendant alleges that the charge above referred to, implying a want of veracity in plaintiff, was limited in its meaning and application to certain statements previously published in the Bozeman Chronicle at the instance of plaintiff, and not otherwise, and that such statements were untrue. He also pleads facts upon which is based the alleged truth of the other statements contained in said publication. The answer in this respect presented an issue as to the truth of the statements of the publication, upon which defendant was entitled to be heard, and amply meets the requirements of the rule urged by counsel for appellant: “When the imputation complained of is a conclusion from certain facts, the plea of justification must aver the existence of a state of facts which will warrant the inference of the charge.” Newell, Defamation, Slander & Libel, p. 652.

2. At the trial defendant objected to the introduction of any evidence as to plaintiff's second cause of action upon the ground that the publication was not libelous per se, and that no special damages were alleged. The objection was sustained, and plaintiff excepted. Plaintiff's second cause of action is based upon the publication of August 24, 1901, heretofore referred to. The allegations are, in substance, that plaintiff is a school-teacher, following that profession; that the article referred to was of and concerning him in his profession, occupation, and business as such school-teacher, and referred to his application for the position as teacher in the public school at Willow Creek, Gallatin country; that the said publication was false, malicious, and unprivileged, and tended to and did injure him in his profession and occupation as a school-teacher, to his damage in the sum of $5,000. The article is set forth in the complaint, and is as follows: “There were a number of applicantsfor the school, among them being the noted Paxton, who has done more damage and less good than any teacher we have ever had. This district knows when it has had enough, so it turned the gentleman down. A Miss Evans has been offered the position of teacher and we hope soon to have a good school running.” In this count of the complaint there is no colloquium, other than as stated above. There is no innuendo at all, and no allegation of special damages. The only damage claimed is that sustained by plaintiff in his occupation and profession of school-teacher, thus limiting the right of recovery, if any, to such general damages as were sustained in the special relation named. When the publication is libelous per se, the plaintiff may recover general damages without allegation or proof of special damages. In actions of this character “it is not necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state generally that the same was published or spoken concerning the plaintiff.” Code Civ. Proc. § 751. But in other respects the rules of common law pleading remain unaltered. In Harris v. Zanone, 93 Cal. 65, 28 Pac. 845, in construing a similar statue, the Supreme Court says: “If the words used are not libelous in themselves, or if they have some occult meaning or local signification, and require proof to determine their meaning or to show that they are libelous, or if they are words in a foreign language, it is necessary to make such allegations of their meaning as will show them to be actionable, and by averment ‘to ascertain that to the court which is generally or doubtfully expressed. ’ Van Vechten v. Hopkins, 5 Johns. 220, 4 Am. Dec 339. “The statue dispenses with them (that is, the colloquium and innuendo) only so far as they show that the defamatory words applied to the plaintiff, and goes no further. The averments necessary in common-law pleading to show the meaning of the words must still be made”- citing authorities. When the words are unequivocal in their import, and obviously defamatory, it is not necessary to employ colloquium or innuendo to explain their application and meaning; but if the words be of doubtful significance, or derive their libelous character not from their own intrinsic force, but from extraneous facts, it is necessary to allege the meaning intended, or set forth such extraneous facts by proper averments. 13 Enc. Plead. & Prac. P. 33, and cases cited. To say of a school-teacher that he is “noted,” though used in an invidious sense, and referring to a particular district, “has done more damage and less good than any other teacher,” and, referring to his application for a position as teacher of its school, “this district knows when it has had enough, so it turned the gentleman down,” enough cannot be said to impeach him in any of those qualities which are essentials of an accomplished school teacher, and to falsely assail which it is slanderous or libelous per se. Says Mr. Newell: “It by no means follows that all words to the disparagement of an officer, professional man, or trader will, for that reason, without proof of special damages, be actionable in themselves. Words, to be actionable on this...