Peinhardt v. West

• Decision Date: 22 March 1927
• Docket Number: 6 Div. 864
• Citation: 115 So. 80,22 Ala.App. 231
• Parties: PEINHARDT v. WEST.
• Court: Alabama Court of Appeals

115 So. 80

22 Ala.App. 231

PEINHARDT v. WEST.

6 Div. 864

Court of Appeals of Alabama

March 22, 1927

Rehearing Denied April 19, 1927

Reversed after Mandate Oct. 4, 1927

Rehearing Denied Nov. 1, 1927

Appeal from Circuit Court, Cullman County; J.E. Horton, Judge.

Action for libel by J.M. West against A.H. Peinhardt. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Certiorari granted by Supreme Court in Peinhardt v. West, 115 So. 88.

Certiorari denied by Supreme Court in Peinhardt v. West, 115 So. 89.

Words not actionable per se cannot be made so by innuendoes.

Count 1 is as follows:

"Plaintiff claims of the defendant the sum of twenty thousand ($20,000.00) dollars damage for falsely and maliciously publishing of and concerning the plaintiff in a printed circular published in Cullman, Cullman county Alabama, on, to wit, the 26th day of July, 1922, with intent to defame the plaintiff, a statement in substance as hereinafter set out (the same having reference to the honesty, morality, and integrity of the plaintiff) (who, at the time and prior to the publishing of said printed circular, was chief of police of the town of Cullman, Alabama, a municipal corporation) and who (as said chief of police of said town of Cullman, Alabama, was alleged in said printed circular to have been guilty of murder indecency, immorality, and conduct unbecoming an officer or a citizen), the said printed circular being in part as follows:

" 'No. 1. He was seen talking to a woman about June 23, 1922, between Beyer's store and the Catholic Church at about 3 o'clock a.m., they acted as if they had been out on a lark all night, and he, amongst other things, was heard to ask her if she desired to go to the hotel now.

" 'No. 2. He was seen to hold clandestine meetings with a certain woman about town near the public cemetery.

" 'No. 3. He was seen to meet a certain woman near the post office building at different times and stroll off with her, around the hour of 9 o'clock p.m.

" 'No. 7. It can be substantiated that he went on a wine drinking expedition in an auto while on duty.

" 'No. 8. It can be substantiated that he borrowed an automobile from a taxi driver to take a traveling woman out riding, and later he rode her about behind his motorcycle in a drunken condition. A nice come-off for a policeman and a married man besides.'

"Said printed circular published also contained the following statement: 'He was set free for murdering one of our citizens in the prime of manhood, without cause or provocation.'

"And plaintiff avers (that at the time of said publication, and for a long period, prior thereto, the plaintiff's business was and had been that of chief of police of the town of Cullman, Alabama); and that the plaintiff then lived in the town of Cullman, Alabama (intending to continue his business at that place as chief of police); that the publication by the defendant of said printed circular hereinabove referred to occasioned intense feeling and interest among the people of Cullman county Alabama, toward the plaintiff. And the plaintiff avers that the publication of and concerning the plaintiff complained of whereby the plaintiff is alleged to be in direct connection with criminal and immoral acts, and having reference to the plaintiff's business as chief of police of the town of Cullman conveyed the false meaning and impression that the plaintiff was dishonest, crooked, and a murderer, and thereby directly and proximately caused suspicion upon the plaintiff as hief of police of the town of Cullman, Alabama, and as a citizen of Cullman county, Alabama, brought plaintiff into public contempt and injured the plaintiff in his said business and calling, and in his reputation, his credit and good name, and caused him to suffer great mental pain anguish, and mortification, and injured the plaintiff in his official capacity as chief of police of the town of Cullman, Alabama, and rendered him less capable of rendering efficient service in his official capacity, and proximately caused plaintiff to lose his position as said chief of police of the town of Cullman, Alabama.

"Plaintiff avers that the statements and implications contained in said printed circular implying that the plaintiff was a murderer, and had held clandestine meetings with various women, and was in a drunken condition while on duty, and had been guilty of crime and immoral conduct unbecoming an officer and a citizen were false, malicious, and libelous, and that said printed circular published as aforesaid was given large circulation by the defendant throughout the county of Cullman, state of Alabama, and elsewhere, and as a proximate consequence thereof, the plaintiff was injured in his good name and in his business and reputation, and was caused to suffer mental pain and anguish and was deprived of his position as chief of police of the town of Cullman, Alabama, thereby losing his salary and the reasonable prospect of realizing large sums of money as chief of police of the town of Cullman, Alabama."

Count 2:

"The plaintiff claims of the defendant the sum of twenty thousand ($20,000.00) dollars, as damages, for falsely and maliciously publishing of and concerning the plaintiff a printed circular published in Cullman, Cullman county, on to wit, the 26th day of July, 1922, with intent to defame the plaintiff. Said printed circular was in words and figures as follows:

" 'To the Citizens of Cullman County, Alabama:

" 'Cullman, Ala. July 26, 1922.

" 'As one part of the world does not know what the other is doing and our former chief of police has been lauded by a certain element of our citizens as an upright and moral gentleman. I hereby desire to place him in a correct attitude, by letting the public in general know who he is, and at the same time let his friends know he has been sailing under false colors, and especially those who cheered and applauded when Judge Buchmann rendered the fatal decision against justice, when he was set free for murdering one of our citizens in the prime of manhood, without cause or provocation. To the ladies who presented him with a player piano, sent him flowers, ice cream, cake, and candy, while in custody, and bedecked him with flowers afterward. And those that got up money by subscription to pay his lawyer fees and also the humble donators who subscribed freely. It is not my intention to slight any one of his friends and benefactors, for I want all to know the truth and be benefited by the same in the future. So I herewith publish charges against him as presented to the city council, which caused his dismissal from duty of the city, and which shows him in his true standing as a depraved piece of humanity, before God and his country.

" 'A.H. Peinhardt.'

" 'July 19, 1922.

" 'To the Hon. Mayor and Council of the City of Cullman, Alabama.

" 'Gentlemen: As is well known to most every citizen of Cullman, Alabama. Monroe West, better know as Speedy, while in the employ of the city as speed cop. did make an unwarranted and malicious attack upon my person and life on the 31st day of December, 1921, while I was on a business errand, to have some reparations made on my car, looking after business telegrams and other business matters, and including anxiety I felt for my sick baby at home. Under pretext of speeding and parking my car in a wrong position, I was wrongfully assaulted and mistreated by said Monroe West. He first tried to assault me with a pistol and, when I requested him as a law-abiding citizen to put up his gun, he did so, but pulled out his billy and commenced to attack me with same. I was struck upon the head and painfully injured and would have received another blow if it had not been for the pleading of Chief of Police Windsor and myself. While writhing with pain I called him a low-down bastard for his murderous assault upon my person, and requested him to finish his job by shooting me, which the coward failed to do. I was then taken to the doctor's office for treatment to my injuries and made bond for my appearance in city court. And during trial proved that the false and hatched up charges made by Monroe West were a pack of lies sworn to by him, but I was verdicted of these false charges by having as witnesses some of the best citizens of our community and consequently set free.

" 'In a case in court Monroe West was found guilty of charges preferred by me, for assault with a weapon, and fined. In complaining to some of you city officers in person, you stated there never had been any charges filed against Monroe West, and I hereby file same, charging him with action of unbecoming an officer. Too free in shooting, pulling guns, and willfully assaulting citizens without cause or provocation, and that the lives of our citizens are thereby endangered. If you will take the time and trouble you can find many other violations that exist against him. In the interest of the welfare of our community, I ask for a speedy removal of Monroe West from the duties of chief of police, speed cop, or anything else he might be, from the service of the city. And I am ready to substantiate my charges by many of our most prominent and best citizens who are anxious to have a more hightoned and better officer on the force, and for whom all citizens can have respect.

"Trusting you will see the necessity of giving my charges prompt and immediate action, thus avoiding further trouble, and beyond doubt pleasing the majority of the citizens of Cullman, Alabama, I remain,

" 'Yours most respectfully,

" 'A.H. Peinhardt.'

" 'July 17, 1922.

" 'To the Hon. Mayor and Council of the City of Cullman, Alabama.

" 'Gentlemen: I herewith furnish you more proof that Monroe West, the present chief of police, is morally unfit for the position he

...