Olympia Water Works v. Mottman , 88 Wash. 694 ( 1915 )

Pee Curiam.

The respondent, Olympia Water Works, the proprietor of the only water supply of the city of Olympia, brought this action to recover damages from the appellant for the publication of three alleged libels, as follows, each libel being set out as a separate cause of action:

“We have been drinking for a good many years the water that comes through an open ditch past China gardens, and every time it rains to this day we drink drainage water, jmt our wise people never say a word of complaint, it is good water because we pay a big price for it.”

“No dead ends in mains—no worms, maggots, no surface water from Chinese gardens in your supply when the city owns the water works.”

“Mr. Scott Shazer, and other citizens of Olympia, on looking over our present water supply found hogs, ducks, and geese wallowing in the present ditch that supplies us, not later than last Sunday, July 13, 1913.”

A trial was had to the court and a jury, the jury finding for the plaintiff on each cause of action, assessing no damages for the first two causes, and finding damages of one dollar on the third cause.

The first assignment of error is predicated on the holding of the trial court that the words are libelous per se, and that neither malice nor special damage to the plaintiff need be proved. The court, by rulings and instructions, adopted the theory that the words were libelous per se and that malice was not an ingredient of civil libel in this state, and we are agreed that the rulings were correct. Any doubt existing at the time of the trial of this case as to the necessity of showing malice in an action for civil libel has since been settled by the case of Wilson v. Sun Publishing Co., 85 Wash. 503, 148 Pac. 774. In that case, filed since the briefs in this case were written, we considered the arguments advanced here and reached the conclusion that “malice is not an essential element of civil libel.” The decision in that case is decisive of the questions of malice involved here, and there is no need to further review the subject. There was, therefore, no error in refusing to require the respondent to establish that the words were written maliciously.

Appellant finds no fault with the rule of law applied by the trial court, that an imputation of a man in the way of his trade is libelous per se and actionable without an allegation of special damage (Pennsylvania Iron Works v. Voght Machine Co., 29 Ky. Law 861, 96 S. W. 551; Newell, Slander and Libel (3d ed.), p. 1035) but does contend that the words here written were not an imputation on the respondent in its business, but that they were spoken of the water and were, therefore, not libelous. While most of the cases cited by the respondent to show that the language in this case is libelous per se were cases in which the references made were to the goods or business of persons disclosed in the matter itself, defamatory words referring to ascertainable persons are actionable to the same extent as those referring to designated persons. 25 Cyc. 362. When we consider the matters here set out as being written, in midsummer, of the sole supply of water for drinking and other domestic purposes of a city having from seven to ten thousand inhabitants, and that supply owned by the respondent, it seems clear that the charge imputes that the respondent furnishes impure water to the city, a charge which undoubtedly would injure the respondent’s business. The ordinary mind readily notices in the language used the charge or imputation of filth and pollution in the water sold and delivered to thousands of dependent and unsuspecting people for their drinking and other domestic purposes. The language, viewed with reference to its setting, punctuation, and in the third charge the particular words “not later than,” negatives the idea of a single, detached, individual or accidental instance, and necessarily conveys the idea of continuing or frequent and permissive contamination of the city’s water supply. The charges here were libelous per se, and special damage need not be alleged and proved to entitle respondent to nominal damages. Wilson v. Sun Publishing Co., supra.

The libelous statements were excerpts from circulars published by the appellant, and appellant sought to introduce in evidence the entire circulars. The offers were refused, and error'is sought to be predicated on the refusal. The principal ground on which it urged that the entire circulars were admissible is the claim that the particular paragraphs, when read in connection with the entire circulars, would show that there was no malice. As malice was not an essential part of the respondent’s case, their admission would not be necessary for that purpose; and as the other matter in the circulars was immaterial for any other purpose and did not mitigate the libelous matter, the court committed no error in excluding it. Quinn v. Review Publishing Co., 55 Wash. 69, 104 Pac. 181, 133 Am. St. 1016.

Appellant contends that, under the rule announced in Hall v. Elgin Dairy Co., 15 Wash. 542, 46 Pac. 1049, he should have been permitted to open and close the argument to the jury. Rem. & Bal. Code, § 292 (P. C. 81 § 275), provides that, if the allegation that the matter was published of the plaintiff is denied, “the plaintiff shall be bound to establish on trial that it was so published or spoken.” The principal defense in this case was that the words were not written of the respondent but of the water, and the respondent (plaintiff) therefore had to sustain the burden of establishing that the words were published of it. In Hall v. Elgin Dairy Co., the burden was on the defendant to establish the justification; in this case, on the plaintiff to establish that the libel was of it. The right to open and close goes to the party having to sustain the burden of proof, which in this case was the plaintiff (respondent).

Finally, it is contended that the court erred in submitting each cause of action for a separate verdict or finding. No authority is cited in support of the contention, and we have been unable to find any so holding. Where the complaint contains several.causes of action, the cause may be properly submitted to the jury to find separately on each cause.

We find no error in the judgment, and it is therefore affirmed.