Sylvester v. Armstrong, 2066

Citation84 P.2d 729,53 Wyo. 382
Decision Date05 December 1938
Docket Number2066
PartiesSYLVESTER v. ARMSTRONG
CourtUnited States State Supreme Court of Wyoming

APPEAL from the District Court, Carbon County; H. R. CHRISTMAS Judge.

Libel action by Charles W. Sylvester against L. E. Armstrong. From a judgment on a directed verdict for defendant, plaintiff appeals.

Affirmed.

For the appellant, there was a brief and an oral argument by Walter Q. Phelan of Cheyenne.

A libel has been defined as a malicious defamation expressed in print or writing, signs or pictures, tending to blacken the memory of the dead or to injure the reputation of one who is alive to disgrace or degrade him in society, or expose him to public hatred, contempt or ridicule. It is also made a penal offense. Sec. 32-224, R. S. 1931. A charge of crime involving moral turpitude is slanderous per se. In re McDonald, 4 Wyo. 150; Dial v. Holter, 6 Ohio St. 228; Alfele v. Wright, 17 Ohio St. 238. The letter written by defendant is libelous per se. 37 C. J. 83 85, 92, 100. The court erred in directing a verdict in this case. 36 C. J. 1237. The law does not concede to any person the privilege of defaming another. 36 C. J. 1237. The law recognizes absolute privilege also qualified privilege according to the nature of the particular transaction. 36 C. J. 1239, 1242. The question of privileged communication is dealt with in Nicholson v. State, 24 Wyo. 347. The protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. 36 C. J. 1248; Newell on Slander and Libel, 4th Ed. pp. 417, 459, 476 and 755. See also Kutcher v. Post Printing Company, 23 Wyo. 197; Hartman and Company v. Hyman, 287 P. 78. As to the element of malice see Hoeppner v. Printing Company, 172 N.E. 139 and Flynn v. Reinke (Wis.) 225 N.W. 742. A letter is published as soon as posted, if it is ever opened anywhere by any third person. Allen v. Wortham, 13 S.W. 73; Seip v. Deshler, 170 Pa. St. 334; Sylvis v. Miller, 96 Tenn. 94; Jackson v. Staley, 9 Ont. 334; State v. Levand, 37 Wyo. 372; Armour Packing Company v. U.S. 207 U.S. 590. The Levand case was a criminal prosecution for publishing defamatory matter in a newspaper and the court held that it was not necessary to prove that anyone read the newspaper, and that where a defamatory communication is libelous per se in a civil action, no showing of special damages is necessary.

For the respondent, there was a brief by J. R. Armstrong of Rawlins and C. R. Ellery of Cheyenne, and oral argument by Mr. Ellery.

The abstract of the record fails to comply with Rule 37 of this court. An abstract is required to be complete so that the appellate court may decide the case thereon, without resorting to the record; also it should contain a statement that it is true and correct. This abstract contains no such certificate. Dinkelspeel v. Lewis, 50 Wyo. 380; Tibbals v. Graham, 50 Wyo. 277; Fryer v Campbell, 46 Wyo. 491; Chemical Co. v. Board of Commissioners (Wyo.) 65 P.2d 1103. The abstract should show the dates the pleadings were filed. Bruce v. Endicott (Colo.) 57 P. 190; Bank v. Smoot (Utah) 269 P. 518. The abstract should contain a full and accurate statement of the facts alleged in the pleadings. Fryer v. Campbell (Wyo.) 28 P.2d 475; Bank v. Guaranty Corp., 45 P.2d 1057; Scott v. Ward (Wyo.) 54 P.2d 805; Bank v. Smoot (Utah) 269 P. 518; Palmer v. Sackett (Colo.) 256 P. 1093; McGuire v. Brokaw (Mo.) 226 S.W. 581. The abstract does not at any place set out the alleged libelous publication, and is insufficient in that respect. In re St. Clair's Estate, 46 Wyo. 446; In re Bosick, 48 Wyo. 46; Mansfield v. Harris (Colo.) 244 P. 474; Rider v. Hockett (Iowa) 176 N.W. 242; Hartford Co. v. Manby (Colo.) 232 P. 927. The abstract does not set out the motion for a directed verdict, and is therefore insufficient. McWilliams v. Patton (Colo.) 202 P. 710; 4 C. J. S. 1483. The abstract does not state when the judgment was entered, and is insufficient on that ground. Albin v. C. R. & I. P. Ry. Co. (Mo.) 67 S.W. 934. The abstract does not set out any final judgment entered in the cause, and is therefore insufficient. Farmers Bank v. Corporation, 48 Wyo. 319; Scott v. Ward, 49 Wyo. 243; 54 P.2d 805. Metzler v. Crebbin (Colo.) 79 P. 301. The abstract does not show whether the appeal is from a final judgment, or from some other, and consequently it is insufficient. Neilson v. Holstein (S. D.) 83 N.W. 581. The abstract does not set out any notice of appeal, or show when any notice was filed, or whether any notice was filed, or show when or upon whom a notice was served, or show that any notice was served, and on that acconut is insufficient. Brewer v. Bros., 43 Wyo. 433; Bank v. Investors Corporation, 48 Wyo. 319; Scott v. Ward, 49 Wyo. 243. An abstract of the record should show that the appellate court has jurisdiction. Brewer v. Folsom Bros., 43 Wyo. 433; Fryer v. Campbell (Wyo.) 28 Pac. (2d); Bank v. Corporation, 48 Wyo. 319; Simpson v. Assn., 45 Wyo. 425; 4 C. J. S. 1485. Statutory requirements as to abstracts cannot be waived. 4 C. J. S. 1474. Kaltenberger v. Hotel Company (Cal.) 12 P.2d 59. The appeal should be dismissed. Without waiving his motion to dismiss the appeal, respondent files his brief on the merits. Plaintiff produced very little evidence in support of his case. The plaintiff having rested, defendant moved for a directed verdict, which was granted. One of the grounds of the motion was that no publication had been proven, which is a necessary element in an action to recover damages for injury to reputation. 36 C. J. 1149, 1223, 1224 and 1227. Ostrowe v. Lee (N. Y.) 175 N.E. 505; Sourbier v. Brown (Ind.) 123 N.E. 802; Rumney v. Worthley (Mass.) 71 N.E. 316; Buckwalter v. Gossow (Kan.) 88 P. 742; Sun Life Company v. Bailey (Va.) 44 S.E. 692; Lally v. Cash (Ariz.) 104 P. 443; Hedgpeth v. Coleman (N. C.) 11 S.E. 517; Company v. Cashman (C. C. A.) 149 F. 367. The authorities cited by appellant's counsel with respect to publication do not govern civil cases. McCurdy v. Hughes (N. D.) 248 N.W. 512; 37 C. J. 74. The case of State v. Levand, 37 Wyoming 372, cited by appellant, was a criminal action and we do not find that the question of publication was discussed in the opinion. The burden was upon plaintiff to prove publication as a part of his case. 37 C. J. 72. The case of Lally v. Casy (Arizona) cited by appellant holds that publication is necessary. Defendant was a stockholder of the Hotel Company referred to in the letter. The communication was therefore qualifiedly privileged. 36 C. J. 1241, 1218, 1266 and 1268. Denver Warehouse Company v. Holloway (Colo.) 83 P. 131; Stroud v. Harris (C. C. A.) 5 F.2d 25; Siever v. Coffman (W. Va.) 92 S.E. 669; Ashcroft v. Hammond (N. Y.) 90 N.E. 1117; La Plant v. Hyman (Colo.) 180 P. 83. The fact that the statements charge a crime, or the language is defamatory per se, does not change the rule or destroy the privilege. Warehouse Company v. Holloway (Colo.) 83 P. 181; McDavitt v. Boyer (Ill.) 48 N.E. 317; Johnson v. Gerasimos (Mich.) 225 N.W. 635; Foley Bros. Company v. McClain (Texas) 231 S.W. 459; 36 C. J. 1283. The case of Kutcher v. Post Printing Company, cited by appellant, involved the right of a newspaper to criticize the acts of a public official and is not in point. A communication qualifiedly privileged, even though not true, is not actionable unless it be proven that defendant was actuated by express or actual malice. Kutcher v. Post Printing Company, 23 Wyo. 178; 37 C. J. 84; 37 C. J. 1221; Warehouse Company v. Holloway (Colo.) 83 P. 131; Henry v. Moberly (Ind.) 51 N.E. 497; Williams v. Pub. Co. (Utah) 27 P.2d 1; Parr v. Lumber Co. (S. D.) 236 N.W. 291; Zanley v. Hyde (Mich.) 175 N.W. 261; Berot v. Porte (La.) 3 A. L. R. 1651; Cadle v. McIntosh (Ind.) 99 N.E. 779; Lauder v. Jones (N. D.) 101 N.W. 907; Doyle v. Clauss, 180 N.Y.S. 671; Walgreen Co. v. Cochran, 61 F.2d 357; Vial v. Larson (Iowa) 109 N.W. 1007; Rigney v. Keesee & Co. (W. Va.) 139 S.E. 650; Abraham v. Baldwin (Fla.) 42 So. 591; Bowles v. May (Va.) 166 S.E. 550; Morley v. Publishing Co. (Colo.) 268 P. 540; Kenney v. Gurley (Ala.) 95 So. 34. The occasion being privileged, the burden was on plaintiff to prove that the alleged libelous statements were false and that defendant knew they were false. 36 C. J. 1222; Ashcroft v. Hammond (N. Y.) 90 N.E. 1117; Chambers v. Leiser (Wash.) 86 P. 627; Hume v. Kusche, 87 N.Y.S. 109; Tipton v. Rains (Ky.) 15 S.W.2d 496. The term "excess of privilege" discussed in appellant's brief has been used in two senses: as referring to irrelevant and impertinent libelous statements, and as referring to the use of unnecessarily violent language. 26 A. L. R. 843; 37 C. J. 84; Rigney v. Keesee & Co. (W. Va.) 139 S.E. 650; Christopher v. Akin (Mass.) 101 N.E. 971; Moore v. Leverett (Tex.) 52 S.W.2d 252; 36 C. J. 1248. The question of whether a defendant has exceeded the privilege is one of law for the court. 37 C. J. 108; Carver v. Greason (Kan.) 177 P. 539; Electric Company v. Daniel (Ala.) 151 So. 403; Hardtner v. Salloum (Miss.) 114 So. 621; Montgomery Ward & Company v. Watson (C. C. A.) 55 F.2d 184. In this case, there was no question of fact to go to the jury. The communication was qualifiedly privileged. There is no dispute as to the question upon which it was made. The communication shows that all the statements concerning the plaintiff were in relation to his fitness for the position of manager of the hotel. Jones v. Express Co. (Cal.) 262 P. 78; Montgomery Ward & Co. v. Watson (C. C. A.) 55 F.2d 184; Reese v. Fife (Mo.) 279 S.W. 415; Donner v. Francis, 255 Ill.App. 409; Manley v. Harer (Mont.) 264 P. 937; Stewart v. Riley (W. Va.) 172 S.E. 791; Bank v. Parker (Tex.) 28 S.W.2d 269; Fisher v. Myers (Mo.) 100 S.W.2d 341; Soldiers' League v. Haan (App. D. C.) ...

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