Kirkpatrick v. Journal Pub. Co. , 207 Ala. 687 ( 1922 )

The plaintiff's cause of action was originally declared in counts 1 to 4, inclusive; and counts A and B were added by way of amendment after demurrer was sustained to said original counts. After such demurrer was sustained to counts A and B, count C was added, to which, also, demurrer was sustained. Plaintiff refused to plead further, and suffered judgment.

The law of libel has been given full expression by this court, and will not be repeated. Iron Age Pub. Co. v. Crudup,85 Ala. 519, 520, 5 So. 332; Fitzpatrick v. Age-Herald Pub. Co., 184 Ala. 510, 63 So. 980, 51 L.R.A. (N.S.) 401, Ann. Cas. 1916B, 753; Age-Herald Pub. Co. v. Waterman, 188 Ala. 272,66 So. 16, Ann. Cas. 1916E, 900; Hendrix v. Mobile Register,202 Ala. 616, 81 So. 558. The question whether an individual member has a right of action for defamation of a class or a group to which he belongs has been the subject of discussion by the courts.

"If the language is so used as unerringly to point to plaintiff, his right of action is not affected by the fact that it is also applicable to others; and, although the language may not on its face refer to the plaintiff, he may maintain his action if he can establish its application to himself" by proper inducement or colloquium contained in the count and by proof of the same. Levert v. Daily States Pub. Co.,123 La. 594, 49 So. 206, 23 L.R.A. (N.S.) 726, 131 Am. St. Rep. 356; Lathrop v. Sundberg, 55 Wash. 144, 104 P. 176, 25 L.R.A. (N.S.) 381; Palmerlee v. Nottage, 119 Minn. 351,138 N.W. 312, 42 L.R.A. (N.S.) 870; Hyatt v. Lindner, 133 La. 614,63 So. 241, 48 L.R.A. (N.S.) 256.

There was no error in sustaining demurrer to counts 1 to 4, inclusive, as the colloquium and innuendo employed in said counts extended the general and fair import of the words of the averred publication of which complaint is made, and from which injury is sought to be shown to have resulted to plaintiff. The sustaining of demurrer to counts A and B and C was not in consonance with the rule of Fitzpatrick v. Age-Herald Pub. Co., supra, where it was held that a publication in a newspaper account of an affray, to the effect that "the shooting occurred on Avenue E, between Eleventh and Twelfth streets, in a house which bears a bad reputation with the police," was defamatory of one who, at the time and for a long time prior thereto, occupied the house in question with his family, as a residence; and that it was not merely a libel of the house itself, apart from its occupants (184 Ala. 515, 63 So. 981, 51 L.R.A. [N. S.] 401, Ann. Cas. 1916B, 753). The court said:

"The house acquires whatever reputation it has from the occupants thereof; it can make or earn none for itself; it can and does reflect only the reputation of its occupants, or those who frequent it. We know of no way by which a house can, of its own act, acquire a reputation. This being true, when we speak of a certain house as being disorderly, we must necessarily be understood as referring to the conduct of those who live in, or who frequent, the same by and with the permission of the occupants. When, therefore, it is said of a house: 'It has a bad reputation with the police,' we refer to the head of the house, and, in fact, we reflect upon each member of the same. The language of the publication is, 'The shooting occurred on Avenue E between Eleventh and Twelfth streets, in a house which bears a bad reputation with the police.' This charges that, at the present time, the house bears a bad reputation with the police; and, under the plaintiff's averment, it was at that moment of time, and had been for a long while prior thereto, the place where he and his family resided. This reflected upon the plaintiff, for he and his family must be held to be the ones who gave to the house, and continued to give to it, that reputation, for the house is void of life and could not make for itself a bad reputation."

It was further held that, while the published words did not charge the plaintiff or any member of his family with an indictable offense, yet — giving to the publication the meaning that the words employed generally and fairly import — as it tended to subject the plaintiff to public hatred, contempt, or ridicule, and tended to reflect shame upon him and put him without the pale of social intercourse, the words used were libelous per se.

The court also held that it was not necessary that every reader of the article should understand the libel or know that the shooting occurred at plaintiff's house; but that it was sufficient that the neighbors and friends of plaintiff could understand that he was the person meant.

The judgment of the circuit court is reversed for the error in sustaining demurrer to counts A, B, and C, added by way of amendment, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.