Samuelson v. Tribune

• Decision Date: 16 February 1931
• Docket Number: 1660
• Citation: 42 Wyo. 419,296 P. 220
• Parties: SAMUELSON v. TRIBUNE, ET AL
• Court: Wyoming Supreme Court

296 P. 220

42 Wyo. 419

SAMUELSON v. TRIBUNE, ET AL

No. 1660

Supreme Court of Wyoming

February 16, 1931

ERROR to District Court, Laramie County; CYRUS O. BROWN, Judge.

Action by A. F. Samuelson against the Tribune Publishing Company and another. Judgment for defendants, and plaintiff brings error. On motion to dismiss and on the merits.

Reversed.

For the plaintiff in error there was a brief and an oral argument by H. S. Ridgely, of Cheyenne, Wyoming.

The court erred in sustaining defendant's general demurrer to plaintiff's petition at common law, the truth of the alleged libel was not an offense. Com. v. Blanding, 3 Pick. 304. The common law has been adopted in Wyoming. 4537 C. S. But modified as to libel and slander. Art I, Sec. 20; Kutcher v. Co., 23 Wyo. 178. The published article concerning plaintiff was libelous per se. McLaughlin v Russell, 17 O. 475; Bourke v. Warren, 12 Eng C. L. 138. The office of an innuendo is to explain the language published. Bourreseau v. Co., (Mich.) 6 Am. St. Rep. 320; Sipp v. Coleman, 179 F. 997; Carley v. Feeney, (N. J. L.) 40 A. 678; Nash v. Fisher, 24 Wyo. 535; Newell on Slander and Libel, page 114. All matters well pleaded in the petition are admitted by demurrer.

For the defendants in error there was a brief and oral arguments by William E. Mullen and Jos. C. O'Mahoney, of Cheyenne, Wyoming.

This case was before the court on direct appeal and dismissed. Samuelson v. Tribune Pub. Co., (Wyo.) 287 P. 83. The proceeding seeks a review of the identical orders and judgment, heretofore presented on said appeal. Defendants have moved to dismiss the proceedings in error on the ground that the decision of this court in the appeal proceeding had the effect of an affirmance of the judgment; also, that plaintiff having elected to prosecute his remedy by direct appeal, waived all right to resort to another remedy by proceedings in error. 3 C. J. 342-343. Unless he is entitled to prosecute both remedies at the same time; a practice not permissible in this jurisdiction. Mitter v. Coal Co., 27 Wyo. 72. The case seems to be governed by the decision in Horton v. Peacock, 1 Wyo. 57. That case is cited with approval in 7 Encl. Pl. and Pr. 854, in support of the text, that where both remedies are open to the parties aggrieved, the general rule as to election of remedies is applicable; hence if a party presents his case for review by proceedings in error, he will be held to have made his election to proceed by error and not by appeal. The Horton case was not overruled in Boner v. Fall River Co., 25 Wyo. 260, since that case merely involved a second attempt to prosecute error, which was of course not a resort to another remedy. Successive appeals may be prosecuted within the time allowed by statute. 3 C. J. 348. This court has consistently recognized the principle of election of remedies. Mitter v. Coal Co., supra; Megown v. Fuller, 37 Wyo. 71. The rule is applied in Colorado. Davis v. Wright, (Colo.) 129 P. 524; and in Nebraska, C. B. & Q. R. R. Co. v. Cass Co., (Nebr.) 70 N.W. 955; New Jersey State v. Taylor, (N. J.) 35 A. 798; State v. Motley, (N. J.) 50 A. 606; New York, Collanan v. Powers, (N. Y.) 92 N.E. 747; also in Texas, Campbell v. Wiggins, (Tex.) 22 S.W. 5; Wandelour v. Bank, (Tex.) 90 S.W. 181. The publication complained of, is not libelous per se. Four separate innuendoes are set out in the petition in attempting to explain the alleged libel. The article does not allege that Samuelson murdered Hudson. No special damages are pleaded, hence there can be no recovery unless the language of the article, without explanation, merits an opprobrious meaning. No article can be libelous per se, when facts must be supplied by conjecture to give it the meaning of which plaintiff complains. It is well settled that special damage must be alleged unless the article is libelous per se. Wiley v. Oklahoma Press, 233 P. 224-25; Callfas v. World, 139 N.W. 830-33; Brown v. Independent, 138 P. 258-60; Rowan v. Gazette, 239 P. 1035, 37 C. J. 35-36. Innuendo cannot extend or amplify meaning of words. Newell, Slander & Libel, Sec. 543, p. 589; Wallace v. Homestead Co., 90 N.W. 835-40; Smith v. Agee & Co., 59 So. 647; Pyper v. Jennings, 191 P. 565-69; Pollock v. Evening Herald, 154 P. 30-31, 17 R. C. L. 396-9, 36 C. J. 1148, 37 C. J. 23. Words that need an innuendo are not libelous per se. 36 C. J. 1151; Kee v. Armstrong, 151 P. 572-74; Matthews v. Oklahoma Pub. Co., 219 P. 947-50. It is not libelous per se to say of a person that he killed another. Diener v. Star Chronicle, 132 S.W. 1143. To be libelous per se the article must be susceptible of but one meaning. Rowan v. Gazette, 239 P. 1035-37; Shaffroth v. Tribune, 201 P. 271; McClure v. Review, 80 P. 303; Pollock v. Evening Herald, 154 P. 30-31; Mellen v. Times Mirror, 140 P. 277-79. The article in question was qualifiedly privileged. 36 C. J. 1277 and 1284, 37 C. J. 33. The Kutcher case, 23 Wyo. 178, is distinguishable, because in that case there was no possible doubt as to who was referred to in the article complained of.

RINER, Justice. KIMBALL, C. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a case wherein a judgment of the District Court of Laramie County comes before us upon proceedings in error, a review thereof having previously been sought by the method of direct appeal. That appeal was dismissed for failure to file the record in this court within time as the law directs. (Samuelson v. Tribune Publishing Co., 41 Wyo. 487, 287 P. 83.) The cause has been argued and submitted both upon a motion to dismiss the proceedings in error and upon the questions arising upon the record through the claim of plaintiff in error that the judgment is erroneous. It becomes necessary, therefore, to consider first the motion to dismiss.

The action below was instituted by Samuelson against the Tribune Publishing Company and J. C. Thompson, to obtain claimed damages alleged to have been inflicted on account of the publication by the defendants of an alleged libelous article concerning him. The trial court sustained a demurrer to his petition, and, as he elected to abide by his pleading, on June 3, 1929, entered a judgment dismissing the action at plaintiff's cost, and allowed him due exception to the ruling. Plaintiff then undertook to prosecute proceedings by direct appeal to secure a review of this judgment by this court, wherein, after argument and submission of the cause, the appeal--our case No. 1626--was, on April 29, 1930, dismissed, for the reason above mentioned, and without any consideration on our part of the questions raised by the specifications of error therein filed. The order made in the case, as shown by our mandate appearing in the present record, was only that:

"This cause having been heretofore taken under advisement, and the court, being now fully advised in the premises: It is ordered, for the reasons stated in the opinion herein this day delivered and filed, that the appeal in this cause be, and the same is hereby, dismissed at the cost of plaintiff and appellant."

No petition for rehearing was filed by appellant. On May 31, 1930, Samuelson, as plaintiff in error, filed his petition in error here against the defendants in error, complaining of the judgment entered on June 3, 1929, as aforesaid. Summons in error was duly issued and served and the necessary steps required by law to perfect the proceedings in error appear to have been in all respects taken.

Defendants in error have moved to strike the petition in error from the files and dismiss these proceedings for review, on the grounds, in substance, that the decision of this court relative to the previous appeal in the case, had the effect of an affirmance of the judgment of the trial court, and that Samuelson, having heretofore elected to prosecute his remedy by direct appeal from the judgment in question, thereby waived all right to resort to another remedy, viz. proceedings in error, to review the same errors and judgment as were involved in the appeal. The real question then to be determined here, is whether, after a party has endeavored to secure the review of a judgment by direct appeal to this court and through the failure to file his record here as the law requires suffers only a dismissal of the appeal without more, he may then, the one year limitation thereon permitting, prosecute proceedings in error and obtain a review of that judgment on the merits.

This court does not appear to have passed upon exactly this point. In Boner v. Fall River County Bank, 25 Wyo. 260, 168 P. 726, 727, it was held that a dismissal of proceedings in error for failure to file brief as required by rule 15 of this court or for other causes not affecting the merits, is not legally an affirmance of the judgment so as to prevent a second proceeding within one year after the rendition of the judgment or final order of which complaint is made. In the course of the opinion announcing that conclusion it was said:

"We are of the opinion that under our statute and rule on the subject a dismissal of proceedings in error for the failure to file briefs or for other cause not affecting the merits of the case is not in law an affirmance of the judgment strictly speaking. To affirm is to 'confirm, or ratify; to maintain as true.' (Webster's New International Dictionary.) It implies an affirmative act on the part of the appellate court--a consideration and determination of the merits of the controversy--and not merely for the court to decline to consider the matter by reason of the failure of plaintiff in error to prosecute his cause with diligence or in accordance with the established rules of practice. 'The effect of the dismissal of an appeal is, as a general rule, to leave the case as if there had...