Burn v. Evening Post Publishing Company

June 16, 1927. The opinion of the Court was delivered by The above four cases are actions against the defendant, based on alleged libel and slander contained in a publication in the Charleston Evening Post, a newspaper owned by the defendant. All of these cases arose out of the same transaction and publication; the allegations of the complaint and of the answers being practically identical. The Circuit Judge sustained demurrers interposed to the defenses pleaded in the seventh and ninth paragraphs of the answers. The questions raised by the appeal in the four cases are the same. We shall consider the appeal in the first case, and the decision in that case will dispose of the others as well.

The defense contained in the seventh paragraph of the answer is as follows:

"Seventh. That no complaint in regard to the said publication was made to defendant, nor was it ever informed that the information therein contained was erroneous at any time from the time of the said publication, to wit, the 30th day of April, 1925, down to date of the service of the summons and complaint in this action, and this defendant would have been glad and willing to have published any correction of the said report, if the said report was erroneous, or incorrect."

The appellant contends that, in sustaining the demurrer to the defense set up in this paragraph, the Circuit Judge erred, for the reason that the allegations therein contained constitute a defense (1) by way of mitigation of damages, (2) against malice and willfulness alleged in the complaint, and (3) as showing failure on the part of the plaintiff to mitigate any damages that might have accrued from the publication.

We do not agree with this contention. We know of no statute or rule of law imposing upon the plaintiff the obligation or duty, in an action for libel, to advise the defendant that it had published a libel or made an erroneous statement concerning him, or to request that correction be made. Certainly, testimony in support of an allegation by the defendant that "it would have been glad and willing to have published any correction of the said report, if the said report was erroneous, or incorrect," had any complaint been made to it in regard to the said publication, would not be admissible in mitigation of damages.

In the case of Coffman v. Spokane Chronicle PublishingCo., 65 Wn., 1; 117 P., 596; Ann. Cas., 1913-B, 636 (cited by the respondent), in disposing of a similar question raised in that case, the Court said:

"No judicial decision, rule of law, or existing statute has been cited which imposes upon the plaintiff in an action for libel the duty of requesting any further publication from the defendant. Moreover, there is not in the record any evidence that the appellant informed respondents the columns of its paper were open to them. When a newspaper has libeled a person, the duty is imposed upon it to make a full and complete retraction. If it does so, it may plead and show such retraction in mitigation of damages, as appellant has done in this action. An offer to the person libeled to publish any reasonable or truthful statement he may desire will not of itself constitute a correction of the wrong, nor will it deprive the libeled party of the right to recover damages, if he does not avail himself of the offer."

The Circuit Judge also correctly sustained the demurrer to the defendant's defense set up in the ninth paragraph of the answer. This paragraph is as follows:

"Ninth. That defendant is informed and verily believes that certain weapons, to wit, pistols, were found by the rural policemen who made the arrest of the plaintiff, which were alleged to have been in his custody and possession, and that defendant is informed the said plaintiff owned or had an interest in said pistols."

The alleged libelous matter published in the defendant's paper contains the statement that the plaintiff had been convicted and fined for carrying concealed weapons, and hence charges him with being a violator of the law. The above defense does not plead the truth of the alleged libelous matter; it does not even allege that plaintiff's possession of the pistol was unlawful. If the defendant desired to prove, by way of mitigation of damages, that the plaintiff had in his possession a concealed weapon, though he was not convicted on such charge, it should have so pleaded.

Even if the plaintiff had a pistol in his possession, or owned an interest in one, such fact alone would not constitute a defense to the alleged libel. An allegation of that kind would not enable the defendant to introduce testimony to prove that the plaintiff was carrying a concealed weapon. If defendant desired to offer testimony to that effect, it should have inserted in its answer an appropriate allegation.

The judgment of this Court is that the order appealed from in each of the said four cases be affirmed.

MESSRS. JUSTICES BLEASE and CARTER concur.