Woolston v. Montana Free Press , 90 Mont. 299 ( 1931 )

The complaint does not state any cause of action. In the absence of a sufficient plea for special damages, the complaint in a libel action must show a libel per se, or it states no cause of action at all; the allegation of damages in the complaint is a general one, and wholly inadequate as a plea for special damages; the publication complained of is not a libelper se. Ergo: the complaint states no cause of action.

It is the settled law of Montana that to state a cause of action for libel the complaint must present either a libel perse or a sufficient plea for special damages. (Daniel v.Moncure, 58 Mont. 193, 190 P. 983; Manley v. Harer,73 Mont. 253, 235 P. 757; Rowan v. Gazette Printing Co.,74 Mont. 326, 239 P. 1035; Porak v. Sweitzer's, Inc., 87 Mont. 331,287 P. 633.)

The allegation of damages in the complaint is as follows: "That such charges and each and all of them and each and all of the charges contained in said published article * * * have greatly injured plaintiff in his good name and reputation as such a newspaper man and as an individual, and plaintiff has been humiliated and disgraced, and will deprive him of gains and profits which otherwise would arise and accrue to him in his profession and business, all to plaintiff's damage and loss in the sum of Two Hundred Thousand ($200,000) Dollars." This is a mere plea of general damages; it is wholly inadequate as a plea for special damages. (Lemmer v. The Tribune, 50 Mont. 559,148 P. 338; Ledlie v. Wallen, 17 Mont. 150, 42 P. 289;Pollard v. Lyon, 91 U.S. 225, 23 L. Ed. 308; Walker v.Tribune Co., 29 Fed. 827; Oklahoma Pub. Co. v. Gray,138 Okla. 71, 280 P. 419.)

The publication complained of in this case is not and cannot be a libel per se. To be libelous at all, a publication must be false and unprivileged, and must be one which exposes the complainant to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. (Sec. 5690, Rev. Codes 1921.) And to be libelous per se, the publication must be such as on its face, without the aid of any explanation, necessarily accomplishes at least one of these effects. (Brown v.Independent Pub. Co., 48 Mont. 374, 138 P. 258; Lemmer v.The Tribune, supra; Manley v. Harer, supra; Shaffroth v.The Tribune, 61 Mont. 14, 201 P. 271.) The language used must be susceptible of but one meaning, and that an opprobrious one. (Burr v. Winnett Times Pub. Co., 80 Mont. 70, 258 P. 242;Manley v. Harer, supra, and 82 Mont. 30, 264 P. 937;Porak v. Sweitzer's, Inc., supra; Daniel v. Moncure, supra.) And the imputation must be of such a character that the court can presume as a matter of law that it would tend to disgrace and degrade a person or hold him up to public hatred, contempt, or ridicule, or cause him to be shunned or avoided. The mere possibility of this is not enough. (Lemmer v. TheTribune, supra; Reid v. Providence Journal, 20 R.I. 120,37 A. 637.) And in order that a publication be considered libelous as tending to injure one in his occupation it must, as the books say, touch him in his occupation by impeaching his skill therein, by charging him with unfitness or want of ability to discharge the duties thereof, or by attributing to him corrupt, dishonest, or fraudulent conduct therein. (Newell on Slander and Libel, 4th ed., sec. 130; Kee v. Armstrong, Byrd Co., 75 Okla. 84, 5 A.L.R. 1349,182 P. 494; Oklahoma Publishing Co. v. Gray, 138 Okla. 71,280 P. 419.) Hence it is not libelous to accuse a person of being deficient in some quality which the law does not require him to possess. (Donaghue v. Gaffy, 54 Conn. 257, 7 A. 552;Urban v. Helmick, 15 Wash. 155, 45 P. 747.) Nor can libelper se be predicated upon words which charge one with being engaged in a lawful transaction, or doing that which he has a legal right to do; the imputation of an act which was lawful cannot be made libelous per se by strong adjectives or harsh characterizations. (Homer v. Engelhardt, 117 Mass. 539;Walker v. Hawley, 56 Conn. 559, 16 A. 674; Donaghue v.Gaffy, 54 Conn. 257, 7 A. 552; Achorn v. Piper,66 Iowa, 694, 695, 24 N.W. 513; Mellen v. Times Mirror Co., 167 Cal. 587, Ann. Cas. 1915C, 766, 140 P. 277; Kee v. Armstrong,Byrd Co., 75 Okla. 84, 5 A.L.R. 1349, 182 P. 494; Wood v.Star Pub. Co., 90 Wash. 85, 95, 155 P. 400.) And not every imputation of a breach of morals or good manners is actionable, nor is libel per se to be predicated upon mere vilification and abuse. (17 R.C.L. 349; McCue v. Equity Co-op. Pub. Co.,39 N.D. 190, 167 N.W. 225; Vinson v. O'Malley, 25 Ariz. 552, 37 A.L.R. 877, 220 P. 393; Wiley v. Oklahoma Press Pub. Co.,106 Okla. 52, 40 A.L.R. 573, 233 P. 224; Yankwich, Essays on Libel, p. 64.) Finally, libel per se cannot be based on language used by way of hypothesis, argument, or illustration. If a publication is directed at one person, and expressions which would otherwise be libelous are applied by way of argument or illustration to a second person, the second person cannot ground a claim for libel per se upon them. (Diener v. StarChronicle Pub. Co., 230 Mo. 613, 33 L.R.A. 216, 132 S.W. 1143; Id., 232 Mo. 416,135 S.W. 6.)

With the foregoing principles and precedents in mind, we consider the article in question. A cursory reading of it will disclose to anyone that there are many things in it which cannot be libelous at all, and many things which, it must be admitted, are not libelous per se; whether it contains any matter of and concerning the plaintiff which is libelous per se is the question and whoever asserts the affirmative should be able to point it out. This has never been done, nor can it be done, as analysis will show. (Note: Here follows an analysis of the article, sentence by sentence.) Thus, line by line and statement by statement, we have gone over this published article. Considered in detail it does not bear analysis as a postulate of libel per se. Can it be said to do so as a whole? It is axiomatic, in the law as elsewhere, that from nothing nothing can come. All the ciphers in the world, added together or multiplied endlessly, will still produce only a cipher.

We are not unmindful of the importance of human reputation; in respect to any serious and unwarranted invasion of it, appeal to the courts is provided for and justified. But it was not for nothing that the fathers of our laws and liberties inserted those provisions so familiar to us relating to the freedom of the press. They did not expect that in their controversies with each other, men and institutions would be perfect. Therefore it is that in the law of libel certain principles have become established, and therefore it is that libel does not lurk in utterances merely because they lack the graces of a Chesterfield, or in publications which are merely hostile and uncomplimentary, or even in mere printed vituperation. "No considerations should induce us to read libel into a publication which does not contain any statement that rises to the dignity of those imputations which, in the law of libel are considered actionable. To do so would bring the entire subject into disrepute." The appellants, in attempting to show that the article is nonlibelous, take each sentence or statement and endeavor to prove that each sentence or statement is not libelous, disregarding its connection with the rest of the article. Such construction cannot be countenanced. The language of the entire article must be construed as a whole, each part being construed in connection with all the other parts. This is the method of construction adopted in Montana, and is perhaps agreed with by all other courts. (State v. Winterrowd, 77 Mont. 74,249 P. 664; Wofford v. Meeks, 129 Ala. 349, 87 Am. St. Rep. 66, 55 L.R.A. 214, 30 So. 625; Jimeno v. Commonwealth HomeBuilders, 47 Cal. App. 660, 191 P. 64; Cooper v. Romney,49 Mont. 119, Ann. Cas. 1916A, 596, 141 P. 289.)

In libel "the opprobrious words are to be construed according to their usual, popular and natural meaning and common acceptation; that is, in the sense in which persons out of court and of ordinary intelligence would understand them." (Burr v.Winnett Times Pub. Co., 80 Mont. 70, 258 P. 242.) A libel is "any publication that tends to degrade, disgrace, or injure the character of a person, or bring him into contempt, hatred, or ridicule." (Prosser v. Callis, 117 Ind. 105, 19 N.E. 735; Inre McDonald, 4 Wyo. 150, 33 P. 18.)

A libel may be consummated by insinuations as well as by direct and positive statements. (Wofford v. Meeks, 129 Ala. 349, 87 Am. St. Rep. 66, 55 L.R.A. 214, 30 So. 625;Republican Pub. Co. v. Miner, 3 Colo. App. 568, 34 P. 485;Lauder v. Jones, 13 N.D. 525, 101 N.W. 907; Cook v. GlobePrinting Co., 227 Mo. 471, 127 S.W. 332; Palmerlee v.Nottage, 119 Minn. 351, 42 L.R.A. (n.s.) 870, 138 N.W. 312;Merrill v. Post Pub. Co., 197 Mass. 185, 83 N.E. 419.)

A cursory reading of the article reveals its purpose to defame, besmirch, destroy. That the article is libelous per se and as to what constitutes libel see: Burr v. Winnett Times Pub. Co., 80 Mont. 70, 258 P. 242; Manley v. Harer,73 Mont. 253, 235 P. 757; Nolan v. Standard Pub. Co., 67 Mont. 212,216 P. 571; Kelly v. Independent Pub. Co., 45 Mont. 127, Ann. Cas. 1913d 1063, 38 L.R.A. (n.s.) 1160, 122 P. 735;State v. Winterrowd, supra; Pratt v. Pioneer Press Co.,35 Minn. 251, 28 N.W. 708; Watson v. Trask, 6 Ohio, 531, 27 Am. Dec. 271; Allen v. Wortham, 89 Ky. 485, 13 S.W. 73;Palmerlee v. Nottage, 119 Minn. 351, 42 L.R.A. (n.s.) 870, 138 N.W. 312; Wofford v. Meeks, 129 Ala. 349, 87 Am. St. Rep. 66, 55 L.R.A. 214, 30 So. 625; Republican Pub. Co. v.Miner, 3 Colo. App. 568, 34 P. 485; Lauder v. Jones,13 N.D. 525, 101 N.W. 907; Merrill v. Post Pub. Co.,197 Mass. 185, 83 N.E. 419; Cook v. Globe Printing Co., 227 Mo. 471,127 S.W. 332; Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 P. 215; Wilson v. Fitch,41 Cal. 363; Smith v. Smith, 73 Mich. 445, 16 Am. St. Rep. 594, 3 L.R.A. 52, 41 N.W. 499.

Pervading the whole article there is the suggestion or insinuation that the plaintiff was uttering falsehoods about the Montana Free Press and its business and affairs. To charge a man with speaking falsehoods is a libel. (Pavesich v. New EnglandL. Ins. Co., 122 Ga. 190, 106 Am. St. Rep. 104, 69 L.R.A. 101, 50 S.E. 68; Over v. Schiffling, 102 Ind. 191, 26 N.E. 91;Prewitt v. Wilson, 128 Iowa, 198, 103 N.W. 365; Jensen v.Damm, 127 Iowa, 555, 103 N.W. 798; Riley v. Lee, 88 Ky. 603, 21 Am. St. Rep. 358, 11 S.W. 713; Hatt v. Evening NewsAssn., 94 Mich. 114, 53 N.W. 952; Trebby v. Transcript Pub.Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N.W. 961; Paxton v.Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 P. 215.)

The article charges the plaintiff with dishonesty. It is libelous to charge a man with dishonesty, fraud, unfair dealing. (Trebby v. Transcript Pub. Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N.W. 961; Jones v. Greeley, 25 Fla. 629, 6 So. 448; Wood v. Boyle, 177 Pa. St. 620, 55 Am. St. Rep. 747, 35 A. 853; Bradley v. Cramer, 59 Wis. 309, 48 Am. Rep. 511, 18 N.W. 268; Sanders v. Hall, 22 Tex. Civ. App. 282, 55 S.W. 594; St. Louis etc. R. Co. v. McArthur, 31 Tex. Civ. App. 205,72 S.W. 76; Dixon v. Allen, 69 Cal. 527, 11 P. 179;Wofford v. Meeks, 129 Ala. 349, 87 Am. St. Rep. 66, 55 L.R.A. 214, 30 So. 625.)

The article clearly says that the plaintiff is low in the social scale. He has used underhand and unethical methods. It was the petty limit to employ him on the "Butte Post." By using him, the company has shown that it may stoop to anything. (Crocker v. Hadley, 102 Ind. 416, 1 N.E. 734; Trebby v. TranscriptPub. Co., supra; Schomberg v. Walker, 132 Cal. 224,64 P. 290; Eikhoff v. Gilbert, 124 Mich. 353, 51 L.R.A. 451, 83 N.W. 110; Smith v. Smith, 73 Mich. 445, 16 Am. St. Rep. 594, 3 L.R.A. 52, 41 N.W. 499; Pfitzinger v. Dubs, 64 Fed. 696, 12 C.C.A. 399; Croasdale v. Bright, 6 Houst. (Del.) 52;Dawkins v. Billingsley, 69 Okla. 259, 12 A.L.R. 144,172 P. 69; Snyder v. Fulton, 34 Md. 128, 6 Am. Rep. 314.)

The language of the article is to be taken in its plain and natural import; according to the sense in which it appears to have been used; the effect it will produce upon men of reasonable understanding; according to the ideas which it is adapted to convey. The intention of the writer does not determine its libelous character. (36 C.J. 1155, sec. 21; McGinnis v. GeorgeKnapp Co., 109 Mo. 131, 18 S.W. 1134; Bonestell v. Shaw,28 Cal. App. 226, 151 P. 1149; Newby v. Times-Mirror Co.,46 Cal. App. 110, 188 P. 1008; Lauder v. Jones, 13 N.D. 525,101 N.W. 907; World Pub. Co. v. Mullen, 43 Neb. 126, 47 Am. St. Rep. 737, 61 N.W. 108; Talbot v. Mack, 41 Nev. 245,169 P. 25; Ball v. Evening American Pub. Co., 237 Ill. 592,86 N.E. 1097.) This action is for libel. Defendants, The Montana Free Press and W.A. Clark, Jr., filed separate demurrers to the complaint upon the ground, among others, that the complaint does not state a cause of action. The demurrers were overruled, separate answers were filed, issues were joined, and a trial resulted in a verdict and judgment for plaintiff. Motion for new trial was denied, and defendants bring the cause here for review. The defendant Harry Gerard was not served and did not appear.

The article upon which this suit is based was published in the Montana Free Press on the front page, and reads as follows:

"Petty Move Against the Free Press. Anaconda Practice Shown in Activities Aimed at Business Operation of Independent Newspaper. The Anaconda Copper Mining Company's politics, business as well as political, embodies underground and picayune policies, and they remind one of E. Watters Neek, when a copper company newspaper employs a man in its business department whose sole duty apparently is to travel about Butte, Billings and Missoula and devote his time to attempts to injure The Montana Free Press. B.E. Woolston, a former executive of this paper, resigned when his demand for a higher salary was not met and was employed by the Butte Post.

"The Post is owned and operated by the Anaconda Copper Mining Company. The big boss of the company in Butte — or perhaps the brilliant idea emanated from some company politician or agent — ordered the employment of Woolston in the peculiar capacity he exercises. In the past record of the copper company some very small and contemptible deals may be found. But this is the petty limit, and serves to show how far the great organization will go to vent its ill will against an independent newspaper.

"Woolston, it was said, was employed in the Post's business department. However, the day he went into the Post, four of the business employes there offered their resignations, according to credible report, and only reconsidered their action upon being assured that the new employe would have no connection with or authority over them. Then it was said that he was to have charge of foreign advertising.

"He went to Billings, and there began attacks on The Free Press by urging its employes to quit and by threatening to destroy The Free Press business. Whether he was under direct orders from the Sixth Floor is unknown.

"One singular episode concerned the mailing list of the Billings Free Press, an effort to secure which was made in an unethical and underhand manner, and the surrounding circumstances seemed to warrant the conclusion that the Post's foreign advertising man was behind the effort.

"To an employe of The Free Press at Billings he said: ``You may tell Harry Gerard [Mr. W.A. Clark, Jr.'s representative] that after next week he will need only one advertising salesman at Billings, and that in 90 days he won't need any.' This vain threat was made in the presence of two other employes of the paper. Presumably Woolston's job was to wipe out The Billings Free Press in three months — a course, no doubt, that would have been highly satisfactory to the Sixth Floor.

"The Billings Free Press has a competent solicitor. The new Butte Post plenipotentiary extraordinary sought him out, offered him a job on the Billings Gazette at $50 a week, $3 a day expenses and the use of a car if he would desert The Free Press. Asked by the solicitor what warranty he would have of a permanent position, Woolston offered to deposit the sum of $1,000 to indemnify him. Then he told the solicitor that The Free Press circulation manager at Butte intended to discharge him, anyway, and would have done so while Woolston was on The Free Press had he not prevented it. The man partly fell for Woolston's talk. However, when the circulation manager learned of this peculiar episode in the acquirement of foreign advertisement by Woolston, he interviewed the solicitor and the latter remained in his employment with The Free Press.

"The Butte Post and the Anaconda Copper Company managers and head men must have felt great gratification at these services of Woolston. But they are merely isolated instances in a general campaign waged against The Free Press, in which the paper was threatened with loss of circulation, and was attacked from various quarters, while its men were approached with offers of new jobs with the copper company's newspapers if they would quit The Free Press, and assurances that The Free Press would be very short lived, particularly since the Butte Post's new business employe had got on its trail.

"To one executive of The Free Press he made dark hints of how he could hurt the paper's circulation, and declared that it would soon know it had opposition. To another he got as far as to say, ``If you want to make a change' — when he was informed that The Free Press man was satisfied with his employment.

"He also made strenuous efforts to have Free Press national advertisements canceled. He had about as much effect on The Free Press as a flea would have on an elephant. But the Anaconda Copper Mining Company should be proud of itself. By urging him in connection with its kept paper, the Butte Post, it has shown that a great corporation, to vent its spite and malice, may stoop to anything.

"At the latest accounts the company's new foreign advertising man was still pursuing the methods described, going strong, and apparently backed by the company's newspaper head, the Sixth Floor Manager of the company's local affairs."

It is contended by defendants that the article is not a libelper se, and plaintiff in his brief states: "It will be conceded by the respondent that if the article published of and concerning the respondent is not a libel per se, then the complaint does not state a cause of action."

The term "per se" means "by itself; simply as such; in its[1, 2] own nature without reference to its relations." (Standard Dictionary.) It is well-settled law that the words used in the alleged libelous article must be susceptible of but one meaning to constitute libel per se, and that the libelous matter may not be segregated from other parts and construed alone. (Paxton v. Woodward, 31 Mont. 195, 107 Am. St. Rep. 416, 3 Ann. Cas. 546, 78 P. 215; Brown v. Independent Pub.Co., 48 Mont. 374, 138 P. 258; Shaffroth v. The Tribune,61 Mont. 14, 201 P. 271.)

The entire printed statements must be viewed by the court as a stranger might look at it, without the aid of special knowledge possessed by the parties concerned. (Brown v. Independent Pub.Co., supra; Shaffroth v. The Tribune, supra; Denney v.Northwestern Credit Assn., 55 Wash. 331, 25 L.R.A. (n.s.) 1021, 104 P. 769.)

Using the foregoing rules in interpreting the writing in[3, 4] question, we are forced to the conclusion that the acts and conduct ascribed to plaintiff therein are not libel per se, and the characterization of them by the writer as the "petty limit" or as being a "peculiar episode" or as a "singular episode" does not make the charges more serious; even if we were to consider the fifth paragraph specifically (which counsel have not done) the case for plaintiff is no better. It is therein stated that "an effort was made in an unethical and underhand manner to secure the mailing list of the Billings Free Press, and the surrounding circumstances seemed to warrant the conclusion that the Post's foreign advertising man was behind the effort." A reading of the entire article conveys the definite information that by the designation "the Post's advertising man" is meant the plaintiff, and it is the law that to assert a suspicion, belief, or opinion is as effectively a libel as though the charge were positively made. The plaintiff is not accused of having made the effort, but the meaning of the language is that some person or persons made the effort, and that the plaintiff was behind the move. In what manner or how the effort or attempt was made, or rather what the conduct of the person or persons was in attempting to secure the mailing list is left to conjecture, as well as the extent of the responsibility of the plaintiff for the effort in the form in which it was made. The effort, whatever its nature, did not succeed, according to a fair interpretation of the article. Both "unethical" and "underhand" are words of such broad meaning that they may or may not carry a libelous meaning. The fifth paragraph, if a libel at all, requires an innuendo to show that it is such, and, when an innuendo is required, the language used is not a libel per se. (Manley v. Harer,73 Mont. 253, 235 P. 757.) We fail to see, in the absence of innuendo or explanation, how the language used can be held to be of that nature that it is "injurious to the plaintiff in his business or profession," or exposes him "to hatred, contempt, ridicule, obloquy," or causes "him to be shunned or avoided."

The judgment is reversed, and the cause remanded to the district court, with direction to set aside the judgment and the order overruling the demurrers, and sustain the demurrers of defendants to the complaint.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES FORD, ANGSTMAN and MATTHEWS concur.