Simpson v. Steen, Civ. A. No. C-43-54.

• Decision Date: 10 December 1954
• Docket Number: Civ. A. No. C-43-54.
• Citation: 127 F. Supp. 132
• Parties: In the Matter of Alan SIMPSON and J. E. Simpson, Plaintiffs, v. Charles A. STEEN, Defendant.
• Court: U.S. District Court — District of Utah

127 F. Supp. 132

In the Matter of Alan SIMPSON and J. E. Simpson, Plaintiffs, v. Charles A. STEEN, Defendant.

Civ. A. No. C-43-54.

United States District Court D. Utah, Central Division.

December 10, 1954.

COPYRIGHT MATERIAL OMITTED

Lincoln D. Coit, Coit & Graham, Grand Junction, Colo., Warwick C. Lamoreaux, Salt Lake City, Utah, for plaintiffs.

Henry Ruggeri, Marl D. Gibson, Price, Utah, Mitchell Melich, Moab, Utah, Clair M. Senior, Hugh C. Garner, Salt Lake City, Utah, for defendant.

CHRISTENSON, District Judge.

The complaint contains three counts based respectively upon publications in various newspapers. Defendant has moved for a dismissal of each count on the ground that it fails to state a claim upon which relief can be granted. The principal contentions of the defendant are: (1) That the alleged defamatory matter is not libelous per se (and that therefore, in the absence of actual malice and special damages, the latter not being pleaded, no recovery can be had); (2) That the alleged defamatory material is not libelous per se as to the plaintiffs in any event; and (3) That plaintiffs cannot jointly maintain this action since they have sued for individual damages, the action being not so maintainable by separate individuals.

Plaintiffs' position in the oral argument was (1-2) that the material is libelous per se, not only in general but as concerns the particular plaintiffs, and (3) that since plaintiffs are suing for damages to a partnership of which they are the sole parties in interest, the action is maintainable jointly by them for damages to the partnership. Further contentions are made in plaintiffs' brief, not urged during oral argument, that in view of Federal Rules of Civil Procedure, Rule 20(a, b), 28 U.S.C.A., the damages suffered individually by the respective defendants, either in a single trial or upon severance can be awarded separately in the present action according to their respective rights; and that at most, only a question of misjoinder is involved, which by the terms of F.R. C.P., Rule 21, 28 U.S.C.A., cannot be raised by motion to dismiss.

The alleged libelous material, as published in the several newspapers mentioned in the complaint under the heading, "Legal Notices", is as follows:

"To Whom It May Concern:

"In April, 1953, Charles Yetter, a consulting geologist, visited the Mi Vada mine of the Utex Exploration Company and stated that he represented New York capital and wished to purchase the Utex property. He was given confidential information concerning Utex and adjoining property. Utex refused to consider the offer which, after examination of the property, he presented.

"Having failed to purchase the Utex property, he returned in July, 1953, together with Simpson Mining Company and Engineer Associates, all of Grand Junction, Colorado; these companies being principally owned by Alan Simpson, J. E. Simpson, Charles Yetter and Henry Clark all of Grand Junction, Colorado.

"This time, this group jumped what are known as the Big Buck claims owned by Donald T. Adams and Dan Hayes of Monticello, Utah. These claims were originally located in 1948, by Dan Hayes and since that time have produced in excess of five thousand tons of uranium ore. Also, at this time, they jumped a portion of Charles A. Steen's claims, who made the original discovery of the famous Mi Vida Mine. At the time they jumped these claims, Yetter and his Associates were well acquainted with the area and knew the prior location of the Steen and Big Buck claims.

"Good faith is essential to the validity of the location of mining claims. In my opinion the act of Yetter and his associates was a most flagrant violation of good faith and breach of confidence.

"The attempted locations by Yetter and his associates were made secretly, clandestinely, surreptitiously and fraudulently, and with the attempt to steal and take from those who, in good faith after considerable hardships, have located their claims according to law. Mr. Yetter and his associates, on numerous occasions, were informed that they were trespassers on the Big Buck and Steen properties, and the purported buyers were, on January 30, 1954, advised on the ground that they were trespassers.

"I am advised that this `Claim Jumping' is a common practice of Yetter and his associates on other valid located properties on the Colorado Plateau. The legitimate uranium operators will resist by all means within their power every attempt by Mr. Yetter and his associates, or anyone else to steal what they cannot lawfully acquire.

"I regret that Mr. Yetter and his associates are bringing back the conditions which existed in many of the old mining camps when committees of Vigilantes were formed to protect their properties against `claim jumpers'.

"Charles A. Steen

"CAS/mb "(Seal)

"Subscribed and sworn to before me this 3rd day of February, 1954.

"Margie M. Shafer "Notary Public, residing at Moab, Utah

"My Commission expires: October 27, 1957.

"First and last Pub. Feb. 4, 1954."

For the purpose of this motion I must take the allegations of the complaint to be true. Assuming that the article was so published, it seems clear that it was libelous per se with respect to whomsoever is sufficiently identified as the object of the adverse comment, if anyone. Those identified generally as "this group" and "Mr. Yetter and his associates" are alleged not only to have "jumped" several mining claims, but are stated to have known of prior rights thereto when so doing. It is further charged in substance that their acts were a flagrant violation of good faith and breach of confidence; that they acted secretly, clandestinely, surreptitiously, fraudulently and with an attempt to steal from those who in good faith and after considerable hardship had located their claims according to law; that they had been advised that they were trespassers; that this conduct was their common practice which legitimate uranium prospectors will resist with all their power, it being clearly inferred that the writer regarded such conduct as stealing what cannot lawfully be acquired; and that they were bringing back the conditions which existed in many old mining camps when committees of vigilantes were formed to protect property against "claim jumpers".

It is true, as defendant's counsel points out, that the term "claim jumper" may refer only to one who re-locates abandoned property; but the term, as indicated by the authorities cited by defendant, has other connotations. By the very words employed in the defendant's statement, he did not use the expression in an innocuous sense. He puts the term in quotation marks to express a special meaning and then expressly characterizes the conduct referred to thereby in the opprobrious terms indicated above.

It is urged by the defendant that although the article uses the terms "steal" or "stealing", no imputation of a criminal offense is involved since the subject-matter of the supposed stealing, if any, would be real estate which cannot be the subject of larceny. There is authority to this effect, holding that words otherwise actionable per se as charging larceny, if spoken with relation to a subject of which no larceny was capable of being committed, are not actionable per se. 53 C.J.S., Libel and Slander, § 70, page 116; Patrick v. Shallcross, 123 Neb. 742, 243 N.W. 907, 908. In another connection, but involving an analogous principle, it has been held that when the alleged defamatory language is considered in connection with the whole article and then appears to relate only to matters and things not unlawful or wrongful, no liability could result. Donaghue v. Gaffy, 53 Conn. 43, 2 A. 397.

In Malouf v. Metropolitan Life Ins. Co., 75 Utah 175, 283 P. 1065, 1067, however, it is indicated that in order that language may be actionable as charging crime it is not essential that it should impute the offense with the accuracy or precision of an information or criminal complaint, or that the charge be made in any direct terms, but it is sufficient if the charge be imputed in language which denotes the offense or which might reasonably be expected to convey that meaning to those who happen to read it. Also, outside the strict definition of crime, it appears that where statements can reasonably bear only an interpretation tending to bring a person into contempt, ridicule and disgrace, they may be libelous per se even though the statements do not actually charge the commission of a crime. Lane v. Washington Daily News, 66 App.D.C. 245, 85 F.2d 822; Knapp v. Post Printing & Publishing Co., 111 Colo. 492, 144 P.2d 981. Particularly may this be so if the charge is made in writing rather than orally. Massee v. Williams, 6 Cir., 207 F. 222, 124 C.C.A. 492.

The whole publication must be read and considered together in the sense in which the reader to whom it could be expected to come would ordinarily understand it. Sullivan v. Meyer, 67 App. D.C. 228, 91 F.2d 301; Estill v. Hearst Publishing Co., 7 Cir., 186 F.2d 1017; People v. Ritchie, 12 Utah 180, 42 P. 209. Regarding the article from the viewpoint mentioned, it seems probable that it may be regarded as containing an imputation of crime, or at least such a charge of conduct as would naturally subject the persons referred to to the public hatred or contempt, or impeaching their honesty or integrity. Utah Code Annotated, 45-2-2; Dwyer v. Libert, 30 Idaho 576, 167 P. 651, Ann.Cas. 1918B, 973. However, it is unnecessary to rest the decision upon the latter conclusions, because it more clearly appears that the statements were designed to injure those to whom reference was made in their business or professional capacities.

It is generally actionable per se to charge a person with fraud or dishonesty with respect to his occupation. 53 C.J.S., Libel and Slander, § 50, page 98. The words are ordinarily actionable where they tend to injure one in his profession, trade or business. 53 C. J.S., Libel and Slander, § 32, pages 76-77...