87 W. Va. 78 | W. Va. | 1920
The action of the Circuit Court of Mineral County in overruling a demurrer to a declaration for statutory libel, and in permitting two special pleas to be filed, and rejecting two o.ther special pleas, is certified to this Court for its judgment thereon.
The suit is brought against three defendants, to-wit, Frank J. Payne, E. E. Hood, and the Echo Company, a corporatoin, and charges the publication of an article which from the usual construction and common acceptation of the words used therein are construed as insults, and tend to violence and breach of the peace. The demurrer to this declaration is based upon several grounds, the most material being misjoinder of the defendants.
The first suggestion is that inasmuch as this is not a suit for libel at common law, but for the publication of insulting words, under the statute a demurrer does not lie to the declar
The defendants contend that their demurrer should have been sustained because there is a misjoinder of defendants in the declaration. They argue that two or more persons cannot be joined in a suit for libel unless it is shown that the publication of the libel was the common or joint action of all of them. The authorities are clear that this is the law. IT1 R. 0. L., Title "Libel and Slander” § 130. The plaintiff does not controvert this legal proposition, but contends that the declaration sufficiently avers the publication in this case to have been the joint action of all of the defendants. Tn the declaration it is averred that Frank J. Payne wrote and published in the Mountain Echo, and that the defendants, Echo Company and E. E. Hood, published in the Mountain Echo a false and scandalous article concerning the plaintiff. This language may mean that Frank J. Payne wrote this article and published it, and that then, subsequently, E. E. Hood and the Echo Company again published it. In fact, this is the logical meaning of the language used. This would aver two publications of the article, one by Payne, for which he alone would be liable, and one by the Echo Company and by Flood, for which they would be liable, and not Payne, and joining Payne with the Echo Company and Hood under such circumstances is a misjoinder. This imperfection in the pleading, however, may be cured by amendment. If it is the intention to charge a single publication in which all of the parties engaged, and which was the result of their joint action, the language can be made to clearly express this purpose; or if, on the other hand, there were separate publications by the defendants of the same' article, the plaintiff may elect which one he will proceed against, and dismiss his suit as to the others. Farley v. Crystal Coal & Coke Co., 85 W. Va. 595, 102 S. E. 265.
It is also urged that the declaration is demurrable for the reason that it is not charged that the agent of the Echo Company who acted for it in the publication of the alleged libel
It is also insisted that E. E. Hood is improperly joined for the reason that the declaration shows he was only the agent of the defendant Echo 'Company, and if that company is liable for this publication, then its agent who published it by its authority would not be liable. It is a principle of the law of contracts that where a known agent acts within the scope of his authority, the principal alone is liable for his acts, but this does not extend to the commission of torts. Where a tort is committed by one who is the agent of another, even with that other’s direction, he may be held liable for the tort, as well as the principal^ and this is as true in the case of the publication of a libel as of any other tort. 17 R. C. L., Title “Libel and Slander” ■§ 132 and authorities there cited. We think this sufficiently disposes of the questions raised upon the demurrer to the declaration.
Special plea Ho. 1 tendered by the defendants and permitted to be filed is a plea of justification. With considerable circum-stantiality, as it necessarily had to do, it avers the truth of the matter published of and regarding the plaintiff, averring in connection with each of the statements published the proper interpretation and meaning thereof, and it avers, as showing that the same was published with good motives and for justifiable ends upon the part of the defendants, that the plaintiff and the defendant Payne had had a contract for the publication by them jointly of an industrial reconstruction edition of the town of
Special plea Ho. 2, which was also allowed to be filed, is an attempt to excuse the defendants on the ground that the publication was privileged. It avers the facts as we have, before stated them in regard to the publications by Barger, and the publication of the article complained of to meet the effect that Barger’s publications might have, and for that purpose only, and avers that the defendant believed the matter published by them to be true. It is quite true that one is not liable in damages for privileged communications. Privileged communications, however, are made, as a rule, either to some ohe to whom there is-a duty to make the communication, or for the protection of the interest of the party making it. In order for a communication to be privileged, the party making it must be careful to go no further than his interests or his duties require. He cannot publish falsehoods of another promiscuously to the world, no matter though he does believe them to be true, and no matter how good his motives or justifiable his ends. He must limit his publications to the parties to whom he owes the duty, or to the parties who may be interested with,him in the protection of some interest actuating the publication. Of course, the circumstances under which a libel is published, and the motives and purposes of the defendant in publishing it, may be shown in mitigation of damages, but where in its 'publication, either as to the method used, or as to the persons to whom the publication is made, the defendant goes beyond the limits which his own protection or his duty requires, he cannot claim immunity because of privilege. See Alderson v. Kahle, 73 W. Va. 690; Hewell on Slander & Libel, 3d Ed. §§ 562, etc.. This special plea Ho. 2 does not show that the defendants confined the publication of their libel to those to whom they owed a duty, or to those with whom they had a joint-interest to protect, and resorted to a particular means for its publication to
Special pleas Nos. 3 and 4, which were rejected by the court, deny that the publication of the alleged libel was the joint action of the defendants, but aver that it was the separate action of each of them. These pleas were properly rejected. Even assuming that this matter could be raised in this way, it would not defeat the plaintiffs declaration, but would only compel him to elect as to which one of the defendants he would proceed against in this suit, and dismiss as to the others.
We conclude that the circuit court should have sustained the demurrer to the declaration with leave to amend; that special plea No. 2 should have been rejected; that special plea No. 1 was properly allowed to be filed’"; and that special pleas Nos. 3 and 4 were properly rejected; and answer the questions certified accordingly.
Reversed in part. Affirmed in part.