Penry v. Dozier

• Decision Date: 13 May 1909
• Parties: PENRY v. DOZIER.
• Court: Alabama Supreme Court

49 So. 909

161 Ala. 292

PENRY v. DOZIER.

Supreme Court of Alabama

May 13, 1909

Appeal from Circuit Court, Perry County; B. M. Miller, Judge.

Action by A. D. Penry against C. H. Dozier. From a judgment for defendant, plaintiff appeals. Affirmed.

Hogue &amp Chappell, for appellant.

Pettus Jeffries & Pettus and W. M. Fowlkes, for appellee.

MAYFIELD J.

This is an action of libel and slander brought by appellant against appellee.

The original complaint consisted of nine counts--the first, in libel, being predicated upon a letter written by the defendant to one W. S. Randall, of Marion Junction; the second, in libel, predicated upon a letter written by the defendant to the plaintiff; the third, in slander, charging that the plaintiff is a thief, thereby meaning that he had stolen a chicken; the fourth, in slander, charging plaintiff with false pretense, in that he had returned the wrong chicken to the defendant, that plaintiff had made affidavit to the chicken, and that plaintiff knew he was lying when he made the affidavit; the fifth, in slander, charging plaintiff with false representations by charging that defendant had sold plaintiff "a nice yellow-legged Plymouth Rock Cockerel" and the defendant had "returned him a mongrel," and wanted him to pay for it; the sixth, in libel, based upon a letter written by defendant to plaintiff, the same letter relied upon in count two; the seventh, in libel, based upon a letter written by the defendant to W. S. Randall, the same letter as relied on in count one; the eighth, in slander, charging plaintiff with being a thief; the ninth, in slander, charging plaintiff with larceny, that he was a thief and had stolen a chicken. Demurrers were filed by the defendant, and sustained by the court, to counts 1, 2, 4, 5, 6, 7, and 8, and so filed and overruled as to counts 3 and 9. The counts to which demurrers were sustained were amended, to which as amended demurrers were refiled, and were sustained as to counts 1, 2, 4, 5, 6, 7, and 8. The plaintiff then amended counts 2 and 6, to which counts as amended demurrers were refiled, whereupon the defendant demurred to each and all of the nine counts as finally amended, and this demurrer to each of the counts was overruled. The defendant, for answer to each count severally and separately, says that he is not guilty of the matters alleged therein; that is to say, from the last judgment entry it appears that issue was joined upon the plea of not guilty as to each of the counts as finally amended. It thus appears from the judgment entry, which, on appeal, is the sole expositor of rulings upon pleadings, that there is an inconsistency, or rather a change, in a ruling by the court as to the sufficiency of some of the counts as finally amended; that is to say, there is one judgment entry showing that demurrers were sustained to counts 1, 2, 4, 5, 6, 7, and 8 as amended, and there was no attempt to amend any of these counts thereafter, except counts 2 and 6, which were subsequently amended. After the final amendment of these two counts, demurrers were filed to each count of the complaint as finally amended, assigning the same grounds of demurrer theretofore assigned to each of the counts, and by a subsequent judgment entry it appears that these demurrers last filed to each count of the complaint as finally amended were overruled, and that the defendant pleaded the general issue to each count of the complaint as finally amended. While it appears from the oral charge of the court and from other parts of the record that the trial was had only upon the general issue to counts 2, 3, 6, and 9 as finally amended, yet the judgment entry shows that issue was joined upon a plea of not guilty to each of the counts as finally amended. Consequently on this appeal we cannot review the rulings of the court upon the demurrer to any count of the complaint as finally amended, for the all-sufficient reason that the judgment entry shows that the last ruling of the court as to each of such counts as finally amended was in favor of the appellant, and, if the former ruling of the court upon any of the counts as amended was detrimental to the plaintiff's rights, it was cured by the subsequent ruling, which overruled the demurrer as to each of the counts finally amended. B'ham Ry. Co. v. James, 138 Ala. 594, 36 So. 464.

While, as we have said, there is a conflict between the recitals in the bill of exceptions and the judgment entry, the recitals in the judgment entry must prevail as to the rulings upon demurrer. 5 Mayfield's Digest, p. 103, § 56. But we may and will review the rulings upon the demurrers adverse to plaintiff which were not cured by the final judgment entry which overruled the demurrers to each count as finally amended. Therefore the demurrers to these counts which were sustained prior to the time they were finally amended will be reviewed. Actions of libel and slander are sui juris. In the early ages, the jurisdiction as to actions of libel and slander was confined exclusively to ecclesiastical tribunals, but later the common-law courts encroached on these actions and acquired jurisdiction. In this condition the actions were transplanted in America, and they exist in all of the United States to-day; the action and remedy being changed, in the various states, by constitutional and statutory provisions.

In this state we have various constitutional and statutory provisions relating to these actions, most of which it is unnecessary here to consider further than will be hereafter mentioned. Our Code contains provisions regulating these two actions, and that of defamation. See chapter 73, §§ 3745-3753, Code 1907. The Code also contains a form for each of the actions of libel and slander. See forms 16, 17, p. 1197, vol. 2, Code 1907. By statute these forms are made sufficient. They first appeared in the Code of 1852 (pages 554-555), and are now substantially as they appeared in that Code, and since the adoption of that Code have been held sufficient. Section 5323 of the present Code of 1907,

which was 2229 of the Code of 1852 , dispenses with colloquium or innuendo in actions for defamation, and provides that the "complaint is sufficient if it states the defendant falsely and maliciously charged the plaintiff with perjury, larceny, or other crime, as the case may be, in substance as follows" (setting it out). It is therefore only necessary that the count of the complaint should conform to these statutory requirements in order to be sufficient in actions of libel or slander. The sufficiency of complaints has been several times tested by this court since the enactment of these statutory provisions, and it has been held that, when the words complained of in libel or slander import or impute a crime, then the complaint may be very simple and brief, but, if the words used are susceptible of different meanings, some of which are libelous or slanderous, and others innocent, or if they are ambiguous or uncertain, or if uttered ironically, then the complaint must set forth enough antecedent or attendant facts to raise the implication that the offense charged was intended. Merely asserting in the complaint that the defendant intended to charge a certain crime is not enough unless the unaided words import that he did. If the words used do not import or impute a crime, they may be attended in the complaint with others, called inducements, occasions, colloquiums, and innuendoes, such as to make the complaint sufficient which would be otherwise insufficient. As Judge Stone says, these give point and direction to what otherwise would seem innocuous. Long v. Musgrove, 75 Ala. 158. An inducement is a statement of facts out of which the charge arises, or which is necessary or useful to make the charge intelligible. In other words, it is intended to state facts by reference to which the libel or slander is rendered intelligible and is shown to contain an injurious imputation. A colloquium only serves to show that the words were spoken in reference to the matter of the averment. An innuendo is only explanatory of the subject-matter sufficiently expressed before, and is and can be explanatory only of such matter. It cannot extend the sense of the words beyond their own meaning unless something is put upon the record for it to explain. Van Vechten v. Hopkins, 5 Johns. (N. Y.) 220, 4 Am. Dec. 339. An innuendo cannot make a thing certain which is, in fact, uncertain. An innuendo cannot enlarge or restrict the natural meaning of words, nor can it introduce new matter. An innuendo cannot be proved, and it is for the court to decide whether given words or given publications are capable of the meaning ascribed to them by the innuendo, and for the jury to decide whether such meaning is truly ascribed to them. Gaither v. Advertiser Co., 102 Ala. 458, 14 So. 788; Wofford v. Meeks, 129 Ala. 349, 30 So. 625, 55 L. R. A. 214, 87 Am. St. Rep. 66; Henderson v. Hale, 19 Ala. 154; 25 Cyc. p. 449. Where words claimed to be defamatory are capable of conveying an innocent meaning, then there must be an averment and an innuendo showing, not only that the words were intended by plaintiff in a defamatory sense, but that the hearers may have understood the language as conveying the alleged defamatory meaning. Smith v. Gaffard, 33 Ala. 168. But if the words are unequivocally actionable per se--that is, charging a crime--then an innuendo will be treated as mere surplusage. 25 Cyc. p. 452.

Allegation and proof of the publication of the alleged defamatory words are essential to the maintenance of the action for libel or slander. There must be a communication to some person other than the plaintiff and defendant. It is not necessary that it be made known to the public generally. It is enough if made known to a single...