Age-Herald Publishing Co. v. Waterman

MAYFIELD, J.

The action is libel. The libel alleged was the publication of what purported to be a report of the proceedings had in a bankruptcy court, before a referee in bankruptcy, in the matter of Knight, Yancey & Co., engaged in the business of buying and selling cotton. The bankrupt was supposed to have issued and disposed of a vast amount of spurious and fraudulent bills of lading.

The plaintiff was not a member of the partnership of Knight, Yancey & Co., but only had dealings with it in the cotton business, and seems to have been on friendly relations with some members of the firm.

The reporter will set out count 2 of the complaint, which contains the alleged libelous publication in base verba; such publication being made to appear to b¿ a part of the newspaper report of the proceedings in the bankrupt court.

The were quite a number of counts added to the complaint by amendment, one of Avhich was. count 2, ordered to be set out, on which alone the case Avas submitted to the jury. The other counts were all eliminated by request of plaintiff, which elimination, of course, could work no injury to the defendant, and rendered perfectly harmless any possible errors committed in rulings as to the eliminated counts,-but not necessarily such as inhered in rulings as to the admission of evidence as will be hereafter shown.

All counts related to publication of the same matter or parts of the reports of the proceedings in the'bankrupt court, but some of these counts set up a different publication of this matter — that is, a subsequent publication of the same matter in other newspapers than that of the defendant, to wit, the Memphis Commercial-Appeal, a newspaper published in Menphis, Tenn — with approproate allegations that these publications were induced or caused by the defendant. Some of these counts were added more than a year after the publication, and as to such counts the defendant interposed the plea of the statute of limitations of one year.

Actions of libel and slander are in terms, by our statute (Code, § 4840), limited to one year. So> the question is: Did these amended counts, filed after a year, state a new and different cause of action, or the same cause of action, but in language varying from that stated in the original complaint, which was filed within a year? If they stated a different cause of action, such action was barred when the amendment was filed; if the same'cause of action, in varying language, then it was not barred.

The rule is thus stated in Cyc. (volume 25, p. 436) : “Every distinct publication of libelous or slanderous matter gives rise to a separate cause of action, although several causes of action for different libels or slanders may be united in the same action. But it has been held that slanderous words spoken at one time constitute one cause of action, and the same or other slanderous words spoken at other times constitute other causes of action, and if relied upon they should he separately pleaded in separate counts or paragraphs.”

Mr. Newell (Def. Lib. & Slan. p. 350) states the rule as follows: “It is well settled that every utterance of slanderous words is a distinct cause of action, and, if recovery is sought for repeating a slander, the repetition must be declared upon as a separate cause of action. The mere general allegation of the repetition of the slander is but pleading evidence which is admissible without pleading, for under a single count the plaintiff may show repetitions, not for the purpose of sustaining the action, but for the purpose of showing malice in the speaking of the words declared upon, thereby aggravating the damages. And where the alleged cause of action is barred by the statute of limitations, it cannot be claimed by the plaintiff that, because the alleged defamatory words weré repeated at various times up to the commencement of the suit, the statute of limitations has no application.”

It would therefore seem that these counts, setting up republications in other papers, stated different- causes of action from that contained in the original complaint; and, if filed more than a year after the publication, they were barred, and the plea of the statute of limitations of one year, as to such counts, was good. We say this for the benefit of the the trial court, and of the parties, in the event there is a new trial, as these counts were eliminated before the case was submitted to the jury.

There are a number of questions raised and discussed in briefs as to the sufficiency of the matters of colloquium, inducements, and innuendoes. The rules touching these have been often stated by this court and others, and by text-writers, and there is very little difference in the statements as to the necessity and sufficiency of such averments in action of libel and slander.

In actions for libel, it is often proper and sometimes necessary to allege, by way of inducement, the trade, profession, or business in which plaintiff was engaged at the time of the publication, and that he was so engaged at that time. Such allegations are called matters' of inducement, and are proper and sometimes necessary to show that the matter alleged was libelous, and to- support damages for injuries on account of such trade, profession, or business. This was a proper case for such allegations, and the trial court did not err in allowing amendments to the complaint, which added such matters of inducement.

Complaints or declarations must contain allegations to show that the words published or spoken were SO' published or spoken in reference to and concerning the plaintiff, and of and concerning distinct and independent facts, which show that the words were used, on the occasion alleged, in a particular sense, such as would render them actionable, although they might not be actionable if otherwise used. The law proceeds upon the theory that what is the ordinary meaning and nature and force of language is a question of law. And when the language or words used are set forth, the first question is ivhether or not the language, standing alone, imputes such a crime or offense as to be actionable per se. If the language is not per se actionable, then facts, as inducements and colloquia, must be alleged to show the sense in which the language was used, that it applied to the plaintiff, and that, as so applied, it is actionable by him. If the meaning and sense of the language is clearly actionable, the mere charge that it was used of and concerning the plaintiff is sifficient to state a cause of action; and the same is true if the language itself shows that it was used, and that it would naturally injure the plaintiff. If the language is ambiguous in meaning or sense, and of and concerning whom and what it is so used, then the office of the colloquium is to make it certain as to these matters, and to show that, as used, it was actionable at the suit of the plaintiff.

Whatever circumstances are necessary to constitute the crime or offense imputed, or to show that the language used was actionable, must be alleged. If the words used are actionable per se, the matter of colloquium may tend to aggravate; but it is not necessary to state a good cause of action. Hence such matter may be proper when it is not necessary; but it is often necessary to the statement of a good cause of action.

As to matter of inducement and colloquium, the averments must be of facts and circumstances which, by way of introduction, show the words in question to be actionable, and not of mere statements arguments, conclusions, and inferences.

Matters of explanation are not treated strictly as averments of facts, but as more explanations of what was meant by the averments. This explanation, in complaints for libel and slander, is called the innuendo, which means the same, as “id est,” “scilicet,” or “aforesaid.” Its only office is to explain the subject-matter, which must have been sufficiently averred before, as such one, meaning the plaintiff, or such a subject, meaning the subject in question. If the matters going before the innuendo do not constitute libel or slander, no words contained in the innuendo can make the language used actionable, for it is not the nature or purpose of an innuendo to state the cause of action.

The matters constituting the inducement and the colloquium are traversable and must be proven; the innuendo is not traversable, and hence need not be proven. Yerdicts are set aside, and judgments arrested, in libel and slander suits, for the reason that the pleader attempted to make an innuendo serve as traversable matter in stating the cause of action, when it is at best merely explanatory of the traversable matter, the mere opinion of the pleader as to what it means.—Bloss v. Tobey, 2 Pick. (Mass.) 320; Carter v. Andrews, 16 Pick. (Mass.) 1.

In the first of the above cases, it is said in the opening sentence of the opinion: “It is with great regret, and not without much labor and research to avoid this result, that we are obliged to arrest the judgment in this case for want of a sufficient count to support the verdict.”

Later on in the opinion the court says: “With respect to the manner of putting upon the record those facts and circumstances which tend to render the words actionable, * * * it must be by averments in opposition to argument and inference, by way of introduction if it is new matter, and by way of innuendo if it is only matter of explanation, for an innuendo- means nothing more than the words fid est,’ ‘scilicet/ or ‘meaning/ or ‘aforesaid/ as explanatory of a subject-matter sufficiently expressed before, as such a one, meaning the defendant, or such a subject, meamvng the subject in question.”

The opinion then quotes from Barham’s Case, in Coke, which is cited in all the books in illustration of this doctrine : “He has burnt my barn, meaning a barn full of corn,” adding, “This is bad, because what comes in under the innuendo is an addition to, and not an explanation of, the words spoken.”

In 16 Pick. (Mass.) 4, Chief Justice Shaw, said: “If the words did in fact mean what it is thus intimated by way of innuendo that they did mean, they would be abundantly sufficient to support the action. But after the -numerous discussions and decisions upon that subject, it is in vain now to contend that it is a. good mode of declaring to say that such words are used with such a meaning and leave it as an open question to the jury to determine upon the facts and circumstances whether the language was used with such a meaning or not. The case of Bloss v. Tobey, 2 Pick. (Mass.) 320, states the principle and the grounds on which it rests so fully that it cannot he necessary to repeat it. The rule is founded upon that important general principle that a plaintiff, to entitle himself to a judgment, must lay his case in such a mode as to enable the court to see, after verdict, that he has a good cause of action.”

In illustrating the nature and necessity of a proper colloquium, when the words are not actionable per se, this same learned justice says: “The law will not shut its eyes to what the rest of the world can see and let the slanderer disguise his language and wrap up his meaning in ambiguous givings out, as he will; it shall not avail him; because courts will understand language in whatever form it is used, as all mankind understands it. This is a correct rule and must be regarded as a most sound and salutary one, to be acted upon by the court, and to be fully explained and enforced upon the trial of the facts before a jury. So .language may be used ambiguously, or ironically, or technically, or conventionally. What are called cant terms and flash language are of the latter sort, where, among a particular class of persons, or by usage or convention, words are used in a particular sense. But, wherever this is a fact, it is in consequence of the existence of some usage or agreement, of some report in circulation, of the time, place, or manner in which the conversation was held, in short, of some fact capable of being averred in a traversable form, so that it may be put in issue and proved or disproved. If the words have the slanderous meaning alleged, not by their own intrinsic force, but by reason of the existence of some extraneous fact, the plaintiff must undertake to prove that fact, and the defendant must be at liberty to disprove it. The fact then must be averred in a traversable form, with a proper colloquium.”

This court, speaking through Stone, C. J., (Gaither v. Advertiser Co., 102 Ala. 462, 14 South. 789), said:

“ ‘An innuendo may not introduce new matter, or enlarge the natural meaning of words. It must not put upon the defendant’s words a construction which they will not bear. It cannot alter or extend the sense of the words, or make that certain which is in fact uncertain. * * * An innuendo cannot be proved. And it is for the judge to decide whether a publication is capable of the meaning ascribed to it by innuendo, and for the jury to decide whether such meaning is truly ascribed to it.’ — 13 Amer. & Eng. Encyc. of Law, 465-467. In other words, the court determines whether the words used are susceptible of the meaning sought to be given to them by the innuendo'. If this inquiry is decided by the court against the contention of the pleader, this puts an end to it, for it is not permissible to malte proof that the words employed were uttered in the sense or with the meaning imputed to them in the innuendo. That is not the subject of proof. If it be decided by the court that the words are susceptible of the meaning the innuendo seeks to ascribe to them, then it becomes a question for the jury to determine, under all the circumstances, whether they were intended to mean -what the innuendo avers they did.”

Count 2 of the complaint as amended, tested by these rules, is a good count; that is, it will support a verdict, was not shown to be bad by demurrer; but the original count is subject to the criticism that matter is stated in the innuendo which should have been stated as an inducement and colloquium, so as to make it traversable, and not merely explanatory.

As before stated, tbe trial court properly allowed the amendments alleging the plaintiffs trade, business, or profession, and matters of inquiry thereto. What was said in Ware v. Clowney, 24 Ala. 707, 710, is apt here, and we repeat it: “ ‘Words are actionable which directly tend to the prejudice of any one in his office, profession, trade, or business in any lawful employment by which he may gain his livelihood.’

“The authorities generally concur in upholding this action in three classes of cases which injuriously reflect upon the trade, profession, or business of an individual, namely: First, when the words charge the person with a want of fidelity in his trade or profession generally; second, where they charge such person with dishonesty, corruption, or want of integrity in a particular case; and, third, where the words impute ignorance or want of skill and capacity in general terms.—[Foot v. Brown] 8 John. (N. Y.) 66.”

The rule as to the nature and sufficiency of statements as to special damages, as distinguished from those that are general, is well stated by Mr. Newell, in his work on Defamation, Slander & Libel, p. 634. It is there said: “Special damages are such as in fact have actually occured as the result or consequence of the injury com- . plained of, and not implied by law. They are either superadded to general damages arising from the act injurious in itself, as where some particular loss arises from the uttering of slanderous words actionable in themselves, or are such as arises from an act indifferent, and not actionable in itself, but injurious only in its consequences, as where words become actionable only by reason of special damage ensuing.

“Special damages must always be the legal and natural consequence arising from the defamation itself, and not a mere wrongful act of a third person. Whenever special damages are claimed, in order to prevent a surprise on the defendant, which might otherwise ensne at the trial, the law requires the plaintiff to state the particular damage which he has sustained, or he will not be permitted to give evidence of it at the trial.”

The majority of the court hold that defendant’s motion to suppress the depositions of .the witnesses named therein, as shown on page 58 of the transcript, was properly overruled. The writer, however, dissents as to> this proposition. The depositions were taken on interrogatories filed by the plaintiff on April 13, 1911, and cross-interrogatories filed by the defendant within ten days thereafter, and were taken on April 27th, 28th, and 29th. The defendant demanded notice of the time and place of taking such depositions, as is authorized by statute (Code, § 4032, as amended by the act of April 18, 1911 [Acts, pp. 487-489]). The majority are of the opinion that the record fails to show that this statute was of force at the date in question so as to be applicable to this case, and that if the statute applied, it was complied with as to notice.

Taking testimony in courts of law by deposition was not common, if known to law courts at common law, and hence statutes upon the subject must be strictly construed ; and he who would avail himself of the benefits conferred by the statute must pursue the statute, at least in a substantial manner. The common law, in such courts, .allowed the party to' cross-examine the witness face to face, and in the presence of the jury. The statute authorizes the taking of testimony in the cases mentioned in the statute in the absence of the jury, but preserves the right of the adverse party to be present at the taking of the testimony, and to cross-examine the witness. In order that this may be preserved, the statute provides for notice to issue to the adverse party, or to his attorney, of the place and the time for the taking of the testimony. This is to the end that, if such adverse party so desires, he or his counsel may be present and face the witness at the taking of such testimony.

As'to whether the depositions should have been taken jointly or severally by the commissioners named in the commission was a question which the defendant probably waived by not objecting within proper time. The commission was issued to Smith and Thomas, “or to such one or more of you as shall act herein.” No objection was taken to this commission on the filing of cross-interrogatories, nor until after the depositions were taken.

It was error to allow plaintiff to prove, by various witnesses, that after the alleged publication by defendant these witnesses had read other similar publications in other newspapers, and had heard parties discuss the connection of plaintiff with the failure of Knight, Yancey & Co. Such testimony was prima facie incompetent and irrelevant, and nothing appears in this record to show that it was competent or - relevant. It was, of course, competent to prove the publication by the defendant, and the wide circulation which the defendant gave the alleged libel; but is was not competent to prove that other third parties repeated it or republished it in other newspapers, and thereby increased the curculation and aggravated the damages.

In actions of libel or slander, the plaintiff cannot prove that he sustained special damages, by means of repetitions, by third persons of the same or similar words uttered by the defendant. The defendant was not shown to be responsible, or liable for the facts of such third parties repeating, or of such other newspapers in republishing, the alleged libel. If the defendant is liable, such third parties are also liable; but they are not sued in this complaint. The mere fact that the same reporter who reported to the defendant company also reported it to' other papers did not make such evidence admissible on this trial.

A case somewhat similar to this is that of Bathrick v. Detroit Post & Tribune Co., 50 Mich. 629, 16 N. W. 172, 15 Am. Rep. 63. In that case it appears that the plaintiff offered to prove the publication of the matter in other papers; and the court, speaking through Cooley, J., said: Mr. Brown, the local correspondent at Battle Creek, who had furnished the article complained of for defendant’s paper, was called by the plaintiff to prove that he also furnished the articles for the Chicago papers. This was objected to, but the evidence received. The tendency was to suggest to the jury that the defendant was in some manner responsible for the Chicago publications. But this was an error. Brown was in no sense the general representative of any one of the papers, and neither of them was in any respect responsible for what he might do, except in so far as it might adopt his articles and make them its own by publishing them. Neither of them had any more concern with what Brown might do with or for the others than if it were done by any third person.”

The question has been several times before the Supreme Court of Massachusettes, and such evidence has always been held not admissible. In the case of Hastings v. Stetson. 126 Mass. 329, 30 Am. Rep. 683, it was said, through Cray, C. J.: “It is too well settled to be now questioned that one who utterers a slander is not responsible, either as on a distinct cause of action, or by way of aggravation of damages of the original slander, for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no contro, and who thereby make themselves liable to the person slandered, and that such repetition cannot be considered'in law a necessary, natural, or probable consequence of the original slander.”

These decisions date back to the English case of Ward v. Weeks, 4 Moore & Payne, 796; s. c., 7 Bing. 211.

The Supreme Court of New York has so decided the question in the case of Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420. That court, speaking by Strong, J., said: “The words spoken by the defendant not being-actionable of themselves, it was necessary in order to maintain the action to prove that they occasioned special damages to the plaintiff. The special damages must have been the natural, immediate, and legal consequence of the Avords.—Stark, on Sland. by Wend. (2d Ed.) 203; 2 Id. 62, 64; Beach v. Ranney, 2 Hill( N. Y.) 309; Crain v. Petrie, 6 Hill (N. Y.) 522 [41 Am. Dec. 765]; Kendall v. Stone, 5 N. Y. 14. Where words are spoken to one person, and he repeats them to another, in consequence of which the party of Avhom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he alone had uttered them. The special damages in such a case are not a natural, legal consequence of the first speaking of the words, but of the wrongful act of repeating them, and Avould not have occurred but for the repetition; and the party who repeats them is alone liable for the damages.—Ward v. Weeks, 7 Bing. 211; Hastings v. Palmer, 20 Wend. (N. Y.) 225; Keenholts v. Becker, 3 Denio (N. Y.) 346; Stevens v. Hartwell, 11 Metc. (Mass.) 542.”

It is, of course, proper to show that the defendant repeated the same Avords to show malice. Such repetition is evidence of malice, and may thereby aggravate the damages. — NeAvell on Libel & Slander, pp. 349, 350. Every repetition of a slander, or the publication thereof by a neAvspaper, is a republication, rendering each person so repeating or republishing liable to an action, as Avell as the initial one. It is no defense that the defendant did not originate the slander or libel. Of course, if the defendant causes or induces the republication, such evidence Avould be admissible to shoAV malice, and to aggravate the damages to the same degree as if the defendant itself had republished the libel. But it was not shown in this case that the defendant corporation caused or induced the republication, in the Montgomery, Mobile, New Orleans, Atlanta, Pensacola, and Memphis papers, as to which the witness testified. Nor was it shOAvn that the defendant caused or induced various individuals to repeat Avhat the papers had said on the subject of the Knight, Yancey & Co. failure. Of course other newspapers are liable to republish reports such as the one complained of, and people are liable to talk about and discuss such reports and thereby circulate and give notoriety thereto; but the law is that the initial slanderer or libeler is not responsible, in an action of slander or libel, for such repetitions and republications of the libel or slander.

We have not overlooked the fact that there Avas an attempt to show that the Age-Herald induced or aided in the publication of similar imports in other papers, to wit, the Commercial-Appeal; but there was a complete failure so to do. In fact, it was conclusively sIioavu that the Age-Herald had nothing whatever to do Avith the publication in other papers, and the proffered evidence on -the subject was excluded.

The trial court also erred in giving charge No. 7, as requested by the plaintiff. This charge is as follows: “I charge you that under the laAv of Alabama this defendant, the Age-Herald Publishing Company, is responsible for the publication of any libel which may result in actionable injury.”

This charge would authorize a recovery against this defendant for publications made by other newspapers than itself, and for which it is not at all responsible. The charge does not even attempt to limit the publication to that made by the defendant, but includes all, by whomsoever made, “which may result in actionable injury.” It does not even limit liability to cases which “do result,” but includes all which “may” so result. The charge illustrates the erroneous theory upon which the court admitted proof of the publications of the same or similar reports in various newspapers of the South about the time the report in question appeared in the defendant’s paper. The trial court seems to have proceeded upon the theory that this defendant is liable for each and all of these separate publications, in this action, which, as we have shown, was erroneous.

Charges 8 and 9, given at the request of plaintiff, were erroneous and improper, as applied to the issues and the evidence in this case; the charges requesting a finding for the plaintiff if the jury were reasonably satisfied from the evidence that the plaintiff had been injured in the manner and under the circumstances averred in the complaint. The defendant had interposed special pleas, in which it alleged that the matters published were as to it privileged matter, and for which publication the defendant was not liable, though the publication would otherwise be actionable. There was evidence tending to support the pleas, and the court could not thus take away from the jury the right to pass upon the same, and, if the jury should have found the pleas to have been proven, then, of course, the plaintiff could not recover.

Charges like the ones in question were held bad, and their giving reversible error in th cases of Frierson v. Frazer, 142 Ala. 232, 37 South. 825, and Alabama Steel & Wire Co. v. Thompson, 166 Ala. 460, 52 South. 75; the latter case overruling the case of Virginia Bridge Co. v. Jordan, 143 Ala. 603, 42 South. 73, 5 Ann. Cas. 709. It is true that in those cases the charges were held bad because they ignored the special pleas of contributory negligence ; but the rule would necessarily be the same as to special, pleas setting up privileged matter in actions of libel and slander.

As the case must be reversed, we deem it unnecessary. to pass upon other questions which may not arise on another trial.

Reversed and remanded. All the Justices concur in the reversal as to the points upon which the case is reversed, but do not desire to commit themselves to all that is said in the opinion, deeming this not necessary, since all the counts were eliminated except count 2.