Ward v. Ares

• Decision Date: 07 February 1924
• Docket Number: No. 2742.,2742.
• Citation: 29 N.M. 418,223 P. 766
• Parties: WARDv.ARES ET AL.
• Court: New Mexico Supreme Court

29 N.M. 418

223 P. 766

WARD

v.ARES ET AL.

No. 2742.

Supreme Court of New Mexico.

Feb. 7, 1924.

Syllabus by the Court.

Any false and malicious writing published of another is “libelous per se,” when it has a tendency to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him.

Two alleged libelous letters examined, and one held to be libelous per se, and the other not.

Qualified privilege does not give absolute immunity from responsibility for libelous words, but has the effect merely of taking away from the libelous language the presumption of malice in their publication, and casts upon the plaintiff the burden of proving actual malice.

Express malice may be proved either directly or indirectly from all the facts and circumstances surrounding the case, and, in deciding the issue of malice in a libel case, the nature and quality of the language used and the falsity of the publication are, among other things, proper facts to be considered.

Evidence reviewed, and held to substantially support the finding of malice.

A finding of fact, based solely on an extrajudicial admission, is not unsupported by substantial evidence merely because of the general character of the evidence as an admission.

Evidence offered and received for a limited purpose cannot be made the basis of a finding of fact wholly unconnected with such purpose.

An assessment of damages, based on erroneous material findings is erroneous.

Appeal from District Court, Eddy County; Bratton, Judge.

Action by Myrtle N. Ward against Mabel E. Ares and husband. From a judgment for plaintiff, defendants appeal. Reversed, and remanded for new trial.

Evidence offered and received for a limited purpose cannot be made the basis of a finding of fact wholly unconnected with such purpose.

Reid, Hervey & Iden and Curtis Hill, all of Roswell, for appellants.

E. P. Bujac and Lamb & McGhee, all of Carlsbad, for appellee.

BOTTS, J.

Action for libel brought by the appellee against the appellants, based on two letters dated June 13, 1918, and June 23, 1918, respectively, written by the appellant Mabel, and transmitted by mail to Albert Ares, from Eddy county, N. M., to Austin, Tex. Appellants are husband and wife, and Albert is the son of the appellant Paul and stepson of the appellant Mabel. Appellee is a young unmarried woman living at Carlsbad, N. M., and at the time the letters were written and received was the fiancée of Albert, who, at that time, was a soldier in camp near Austin, Tex. Albert seems to have been engaged at the same time to Lillian Bearup, a younger sister of the appellant Mabel. The record would indicate that at the time of the writing of the letters there was considerable ill feeling between the family of appellee and the appellants, and the appellant Mabel was apparently very solicitous that her stepson should marry her sister instead of the appellee. The court found that the statements, charges, and accusations contained in said letters were false and untrue, and were known to be so by the appellant Mabel at the time they were written, and were made from a malicious desire upon the part of the writer to defeat the marriage of the appellee and Albert and to bring about the marriage between Albert and Lillian. This finding seems to be fully supported by the evidence.

[1] Both appellee and Lillian lived in New Mexico and went to Austin, Tex., about the same time, each for the purpose of marrying Albert, arriving there shortly after the receipt by Albert of the two letters above mentioned. Lillian was successful, but the appellee returned to New Mexico a single woman. By her complaint, she charged that by means of said false communications she was injured in her character and reputation, and her said fiancée broke off his engagement as a consequence thereof, to her great humiliation and disgrace, and prayed damage in the sum of $25,000. The case was tried to the court without a jury, and resulted in a judgment for $3,000 actual and $1,000 exemplary damages. Nothing was pleaded by way of inducement, colloquium, or innuendo, and the first point urged by appellants is that the statements relied upon are not libelous. Since the purpose of pleading and proving innuendo in a libel case is to give point or meaning to matter which is not, of itself, or standing alone, libelous, it naturally follows that in the absence of innuendo the action must necessarily fail, unless the language assigned as the basis of the action be libelous per se. Under the circumstances, therefore, appellants' first point raises a question of primary importance. This court, in the case of Colbert v. Journal Publishing Co., 19 N. M. 156, 142 Pac. 146, has laid down the rule by which we are to be guided here in determining whether or not the letters involved herein are libelous per se. In that case the court adopted Judge Cooley's statement of the general rule, as follows:

“Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him.”

[2] But, even when furnished with this clear statement of the rule, it is not easy to measure, accurately, any given statement when it falls close to the border line between libelous and nonlibelous matter. Such is the characteristic, as we see it, of the letter of June 13. We have studied it carefully from all angles and, while it is mean, silly, and foolish in its language, we have not been able to find anything therein, taking the language at its face value as we must, which would normally affect the public mind against appellee in the manner required by the rule quoted. We hold, therefore, that the letter of June 13 does not contain language which is libelous per se. No good can come from setting it out in this opinion, as we cannot believe that it would ever serve as a precedent in a future case--such a letter will never again be written. The trial court seems to have been very doubtful as to the libelous character of this letter, since, at the close of appellee's case, and at the request of appellants that they be required to direct their evidence only to such portions of the alleged libelous matter as the court should hold to be libelous per se, the court indicated that in its opinion only two statements were libelous, both of which were contained in the letter of June 23, and one of which we shall notice particularly later; but at the close of the whole case the court concluded, as a matter of law, that both of said letters were libelous, without, however, pointing out the particular statement or statements in the letter now under consideration which gave it that character. In our opinion, the court erred in this conclusion in so far as it applied to the letter of June 13.

We do not encounter the same difficulty with the letter of June 23. In that letter, the writer said, speaking of the appellee,

“You know the time she was in the Hospital and the tail that was out as to what she had done. Well, if that is so, she could be no wife only an agrivation, don't you know that. And would make life a H. for a man. There is no woman left to her C? I must tell you this your dad said if I was him and wanted _____ I would just take $10 and go somewhere and sleep and not have to marry a thing like that.”

Little is left to the imagination here, and, bearing in mind that the letter was written concerning a young woman and to her fiancée, no elaboration is necessary to bring this statement plainly within the rule above quoted. Other statements contained in this letter are said by the appellee to be equally within the rule, but enough has been quoted and said to indicate that the court did not err in its conclusion that the letter of June 23 is libelous per se.

Appellant's next point is that the relationship existing between the appellants and Albert gives rise to a qualified privilege by which they are protected, even though the subject-matter of the letters be otherwise libelous. In this connection, they argue that the purpose of the letters was to protect Albert, the son and stepson of the appellants, from what they considered would be an unhappy alliance should he marry the appellee, and that there was a duty on the part of the appellants to protect Albert from such misfortune. Both parties make no distinction so far as the rule of parental privilege is concerned as betwen a stepparent and a parent, and we shall here consider that there is none. The appellee does not dispute the proposition that a parent has the right, in good faith and honestly, to advise a child in respect to the wisdom of a contemplated marriage, but says that in this case the communications were not made in good faith, but maliciously and for the benefit of the stepmother's sister, Lillian, rather than for the benefit of Albert.

[3] The books say that a qualified privilege, such as that contended for here, does not give absolute immunity from responsibility for libelous words, but has the effect merely of taking away from the libelous language the presumption of malice in their publication, and casts upon the plaintiff the burden of proving actual malice. If that burden be assumed and carried by the plaintiff, the qualified privilege becomes functus officio and affords no further protection. White v. Nicholls, 3 How. 266, 11 L. Ed. 591; Washburn v. Cooke, 3 Denio (N. Y.) 110; Sullivan v. Strathan-Hutton-Evans Commission Co., 152 Mo. 268, 53 S. W. 912, 47 L. R. A. 859. In the case of White v. Nicholls, supra, the Supreme Court of the United States, after an extended investigation and review of English and American authorities, concisely stated the rule as follows:

“The investigation has conducted us to the following conclusions, which we propound as the law applicable thereto: 1....