Peinhardt v. West

• Decision Date: 23 June 1927
• Docket Number: 6 Div. 943
• Citation: Peinhardt v. West, 217 Ala. 12, 115 So. 88 (Ala. 1927)
• Parties: PEINHARDT v. WEST.
• Court: Alabama Supreme Court

115 So. 88

217 Ala. 12

PEINHARDT v. WEST.

6 Div. 943

Supreme Court of Alabama

June 23, 1927

Certiorari to Court of Appeals.

Petition of J.M. West for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Peinhardt v. West,115 So. 80.Writ granted.

See also, 115 So. 89.

Beddow & Ray, of Birmingham, for appellant.

Earney Bland, of Cullman, for appellee.

SOMERVILLE J.

The following principles in the law of libel are well settled by the authorities:

1."The article or conversation need not be set out in full; it being sufficient if the petition contains the material part or only so much as is necessary to show an actionable imputation."37 Corp.Jur. 28, § 337.

In Weir v. Hoss and wife,6 Ala. 881, 887, this court said:

"It was not necessary to set out the entire publication but it was sufficient to set out such parts as the plaintiff complained of as libelous, if the plaintiff does not, by omitting some portions, produce a new arrangement, and thereby alter the sense.*** The proper mode is to show [in defense] that the selected parts are extracts, and, if the omitted parts explain, or render innocuous, the parts selected, the defendant may have the advantage of it on the general issue.Such was the mode adopted in this case in strict conformity with the precedents."

The text of 17 R.C.L. 390, § 142, relied on by the Court of Appeals, does not contradict the other authorities above cited, but is applicable only when the excerpt stated is on its face incomplete, and shows an omission of a part of the complete statement.

2.If the matter complained of is libelous per se, no innuendo is necessary, and, if laid, may be disregarded as surplusage.37 Corp.Jur. 25, § 332;Penry v. Dozier,161 Ala. 292 301, 49 So. 909;Choctaw, etc., Co. v. Lillich,204 Ala. 533, 86 So. 383, 11 A.L.R. 1014.In such a case an unwarranted innuendo is not ground for demurrer(Choctaw, etc., Co. v. Lillich, supra), and on the trial the plaintiff is not confined to the meaning thus ascribed to the language (37 Corp.Jur. 25-26, § 332).

3."If a count sets out words not actionable and words spoken at the same time which are actionable, the count is good."37 Corp.Jur. 21, § 327;Bash v. Sommer,20 Pa. 159;Cummins v. Butler, 3 Blackf.(Ind.) 190;Davis v. Hamilton,85 Minn. 209, 88 N.W. 744.And "a complaint which alleges two or more sets of words is good if either of such sets is actionable."37 CorpJur. 21, § 326;Buscher v. Scully,107 Ind. 246, 5 N.E. 738, 8 N.E. 37;Klumph v. Dunn,66 Pa. 141, 5 Am.Rep. 355.

4."It is not necessary, to entitle the plaintiff to recover, that he should prove the speaking of all the words alleged; if he proves some of them which are actionable without reference to the others, it is quite sufficient."Scott v. McKinnish and wife,15 Ala. 662, 667;Chandler v. Holloway, 4 Port. 17, 23, 24;Penry v. Dozier,161 Ala. 292, 306, 49 So. 909.A fortiori is not necessary to the sufficiency of the complaint, even where the distinct matters charged are not all libelous per se, that every innuendo be warranted by the matter alleged.

5.It is well settled that "a communication concerning a public official, made to his superior or [to a] person with power to redress a wrong, is qualifiedly privileged"; but "to come within this rule the officer or board addressed must have some interest or duty in the matter."36 Corp.Jur. 1263, 1264, § 246; Odgers, Libel and Slander (1911) 276; Cooley on Torts (1906) 434;Glisson v. Biggio,141 La. 209, 74 So. 907;Bingham v. Gaynor,203 N.Y. 27, 96 N.E. 84;Kent v. Bongartz,15 R.I. 72, 22 A. 1023, 2 Am.St.Rep. 870.

Conceding that the charges filed by defendant before the city council of Cullman, as shown by the second count of the complaint were qualifiedly privileged, it does not appear that their subsequent publication by a circular addressed "To the Citizens of Cullman County," after plaintiff had ceased to be a public officer, was a matter even of qualified privilege.By setting out the circular containing a recital that the alleged libelous matters had been "presented to the city council,"plaintiff did not admit the truth of that recital; nor does that recital itself show that, when the circular was published, there was a public document containing the libelous charges on file in any place accessible to the public.Where the complaint does not affirmatively show that the publication was privileged, the privilege relied on must be...