Ellsworth v. Martindale-Hubbell Law Directory, Inc. , 66 N.D. 578 ( 1936 )

The respondent requests further consideration of his contention that the defamatory language alleged in the complaint sets out libel per se. Much of his argument is directed to the proposition that if language is susceptible to more than one interpretation one of which would be defamatory and the other not, whether the language is defamatory is a question for the jury. Springer v. Swift, 59 S.D. 208, 239 N.W. 171, 78 A.L.R. 1171. This does not mean that language which is susceptible of different interpretations, one of which is defamatory, is libelous per se. Respondent has failed to distinguish between what constitutes libel per se and what constitutes libel per quod. A complaint showing either may set forth a good cause of action. Alleged defamatory language, when accompanied by proper innuendo, may constitute a good cause of action insofar as such language is concerned, and still not be libel per se. In this case the alleged defamatory publication, when accompanied by the innuendo pleaded in the complaint, sets forth a good cause of action insofar as the element of defamatory language is concerned, but does not constitute libel per se. The libel so pleaded is per quod, and as we have held in the original opinion, must be accompanied by allegations of defamatory understanding and special damages in order to present a cause of action.

"Words may be actionable in themselves or per se, or they may be actionable only on allegation and proof of special damage or per quod. The distinction is based on a rule of evidence. Words of both classes are actionable on the same grounds and for the same reasons. The noxious quality in both lies in the fact that they are the natural and proximate causes of pecuniary damage to those concerning whom they are maliciously uttered. The difference between them is in the matter of proof of the resulting injury. In the case of words actionable per se their injurious character is a fact of common notoriety, established by the general consent of men, and the court consequently takes judicial notice of it. They necessarily import damage and therefore in such cases general damages need not be pleaded or proved but are conclusively presumed to result, and special damage need not be shown to sustain the action. Moreover, malice is presumed as a matter of law in such cases. Words actionable only per quod are those whose injurious effect must be established by due allegation and proof." 17 R.C.L. p. 264, § 4.

The appellant asks us to further consider whether the complaint alleges defamatory language so as to comply with the rule requiring such language to be set out in haec verba. It emphasizes the fact that a part, but not all, of the confidential key is set forth. In the language of the complaint, damages are sought by the plaintiff for the publication by the defendant in its 1929 directory "of such false, malicious, libelous and defamatory markings against his name and the publication of said volume by the defendant and the wide circulation and distribution of the same throughout the United States." The plaintiff claims to have been damaged by reason of the publication of blanks after his name and in order to explain why such publication is defamatory he pleads excerpts from the confidential key, along with other matter. Such publication is not libelous per se and not in itself defamatory, but when accompanied by the allegations pleaded by way of innuendo including the excerpts from the confidential key, it becomes actionable. The complaint complies with the rule requiring defamatory language to be set out in haec verba, but because it does not allege special damages and a defamatory understanding by those who read the publication, it fails to state a cause of action.

BURKE, Ch. J., and CHRISTIANSON, NUESSLE and BURR, JJ., concur.