Wood v. Hannett, 3389.

• Decision Date: 03 June 1930
• Docket Number: No. 3389.,3389.
• Citation: Wood v. Hannett, 35 N.M. 23, 289 P. 590, 1930 NMSC 6 (N.M. 1930)
• Parties: WOODv.HANNETT et al.
• Court: New Mexico Supreme Court

35 N.M. 23

289 P. 590

WOOD

v.HANNETT et al.

No. 3389.

Supreme Court of New Mexico.

June 3, 1930.

Syllabus by the Court.

Ruled by trial court and conceded by appellant that a publication not libelous per se will not support an action for general damages.

Syllabus by the Court.

The publication “if the Bar Commission desires to show its sincerity it ought to take up the case of * * * (naming plaintiff) * * * as developed from the testimony in the hearing before the Commission,” is not libelous per se, though defendants had previously published true reports of such testimony pointing to conduct of plaintiff tending to disgrace him, and had still earlier published direct charge of guilt of such conduct.

Appeal from District Court, Valencia County; Owen, Judge.

Action by Francis E. Wood against Arthur T. Hannett and others.Judgment dismissing the complaint following an order sustaining a motion for new trial, and plaintiff appeals.

Affirmed, and cause remanded.

Publication not libelous per se will not support action for general damages.

Francis E. Wood, of Albuquerque, for appellant.

Mechem & Vellacott and Hanna & Wilson, all of Albuquerque, for appellees.

WATSON, J.

Francis E. Wood sued the Journal Publishing Company and certain individual defendants for libel, and obtained a verdict of $12,000.This appeal is from a judgment, after verdict, dismissing the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.That judgment followed an order sustaining a motion for new trial, and plaintiff's refusal to plead further.

The question being the sufficiency of the complaint, we insert its essential allegations:

“(4) That in the issue of the evening edition of the Albuquerque Journal aforesaid, published upon the fifteenth day of July, 1927, there was published an article composed and prepared by the defendant, Arthur T. Hannett, in which it was stated among other things the following, referring to this complainant named therein, and the same was generally circulated and read by the public among whom the paper had its circulation, to-wit:

‘* * * That Reed Holloman, while District Judge of the First Judicial District in this year of 1927, entered into a conspiracy with H. C. Denny, attorney of Gallup, New Mexico, H. W. Yersin, Attorney of Gallup, New Mexico, Arthur A. Jones, of Gallup, New Mexico, and Francis E. Wood, of Albuquerque, New Mexico, to seize, gain control of, and operate through receivership proceedings in said Reed Holloman's court, the municipal water works of the Town of Gallup, for the following purposes, to-wit:

1.Mulcting the municipal water works for attorneys' and receivership fees.

2.To gain control of the patronage incident to the operation of the Gallup Water Works under such receivership.

2.Using the receivership of the Gallup Water Works as an instrumentality to gain control of the municipal power plant, and use it to destroy said Arthur T. Hannett's property interest in the Gallup Electric Light and Power Company.'

(5) That thereafter and in the morning edition of the Albuquerque Journal, published on August 13, 1927, the defendants published and circulated a statement meant and intended to refer to this complainant, containing what purported to be a statement made by H. W. Yersin above mentioned to a representative of the Burns detective agency employed by the defendant, Hannett, to spy on the Judge and attorneys engaged in the trial of the said cause, which among other things appeared:

‘Mr. Wood (meaning complainant) and myself are financing this water suit and will receive our only compensation from our fees as attorneys for the receiver, when he is appointed, and if the above procedure was followed we would expect you to stand the expense of this water suit which will probably be in the neighborhood of $1,500, and to pay Mr. Wood and myself a reasonable attorney's fee.’

(6) In the same issue of said paper there was published what was purported to be some proceedings before a committee of the State Bar then investigating charges against the defendant, Hannett, containing among other things the following:

‘A bombshell was exploded Friday afternoon at the outset of the hearing on the Gallup Water works conspiracy charges of former Governor A. T. Hannett before the state bar commission.’

and purporting further to report statements made by H. W. Yersin before the committee as follows:

‘Mr. Yersin had to admit the statement was his own and also the agreement.He had to admit that he and Mr. Wood were financing the Gallup waterworks receivership suit, and he testified to going to Albuquerque in the automobile of H. C. Denny to consult with Mr. Wood about the filing of the suit.

The denouement was as complete as ever witnessed in a courtroom.It left the spectators gasping as to how Mr. Yersin had been so completely trapped, until it became known that Frank Delafield, with whom Mr. Yersin had been negotiating, was not the representative of large utility interests, as he purported to be, but a detective who had solved and secured the inside details of the conspiracy to throw the Gallup water works into receivership in Judge Holloman's court, as Mr. Hannett alleged.'

With reference to the agreement above outlined, it was further stated in such published reports, and purporting to quote from Mr. Yersin's testimony, as follows:

‘Mr. Wilson proceeded to read the agreement and contract between H. W. Yersin and Frank Delafield, in Yersin's handwriting.

Q.It was your understanding when you took the case that you would get Mr. Wood as your assistant?A.Yes, sir.

Q.Did you tell Mr. Wood that you thought Mr. Jones would be appointed as receiver?A.Yes, sir.

Q.Did you tell him you and he would be appointed as attorneys for the receiver?A.I told Mr. Wood I hoped we would be appointed.

Q.Did Mr. Wood agree to go into this case and finance it with you on your promises of that kind?A.I told him we stood the best chance of being appointed attorneys for the receiver.

Q.Did you talk with Mr. Wood about this matter that you wrote out in addition to what you wrote?(referring to the statement presented by the detective.)A.Yes, I did.'

(7) That in the evening edition of the Albuquerque Journal of August 13, 1927, there was further published a statement purporting to be made by the detective on such hearing in which he was reported as saying:

Regarding Francis E. Wood's part in the case, Mr. Stanton was asked: ‘Did he(Mr. Yersin) say anything about the employment of Mr. Wood in connection with the waterworks suit?’

‘He stated that after contemplating the evidence unearthed in the water suit that he found it necessary to retain another attorney to assist him.At the suggestion of Judge Holloman and H. C. Dennyhe had gone to Mr. Wood, Francis E. Wood, and asked him to assist him in this water suit.

Yersin stated that Mr. Wood had wanted to know what recompense he might receive for his labors.He(Yersin) said that Wood objected to spending his own money, even for railroad fare and other expenses to go to Gallup.He stated that he had told Wood that Judge Holloman had promised him the job of attorney for the receiver, but that now both of them would have to have the fees that were obtained as attorneys for the receiver.He stated Mr. Wood asked him: “How am I to know that Judge Holloman has promised this?Yersin then answered that Judge Holloman and Denny were in town and we will go to them and have him tell you.”Yersin stated that they together went to Judge Holloman.He didn't state when or where, and that Judge Holloman had promised Wood that the receiver would be appointed and that he would receive half of the fees realized from the job as attorney for the receivership.'

(8) That in the evening edition of the Albuquerque Journal of August 16, 1927, the following statement, referring to this complainant, appeared in the account of the final action of the committee of the bar association on the hearing, finding all the above charges made by Hannett to be false:

‘Speculation is rife in Santa Fe as to what action, if any, would...