Cole v. Neustadter

22 Or. 191 | Or. | 1892

Strahan, C. J.

There is but one question presented by this appeal, and that is the sufficiency of the complaint. The determination of this question involves a brief examination of the law of libel; but at the threshold we are met by the difficulty that no certain and precise definition of libel, or what constitutes libel, exists. A late writer on the subject says that the attempts which have been made to define libel, or a libel, are so many as to be practically innumerable, yet they have in reality been unavailing; no definition, properly so called, of libel, or a libel, exists. (Towns. Slander and Libel, § 20.) Many of the attempted definitions are collected by this author in a note to section 21.

It is said that a libel is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent, towards governments, magistrates, or individuals. (People v. Crosswell, 3 Johns. Cas. 336; Steele v. Southwick, 9 Johns. *214; Cooper v. Greeley, 1 Den. 347.) So it is said to be a malicious publication, in writing, signs, or pictures, imputing to another something which has a tendency to injure his reputation, to disgrace or degrade him in society, and to lower him in the esteem and opinion of the world, or to bring him into public hatred, contempt, or ridicule. (State v. Jeandell, 5 Harr. (Del.) 475.) Again, it is said that every publication by writing, printing, or painting which charges or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, odious, or ridiculous, is prima fade a libel, and implies, malice in the publisher. (White v. Nicholls, 3 How. 266; Dexter v. Spear, 4 Mass. 115.) Another ease says that a publication, to be a libel, must tend to injure the plaintiff’s reputation and expose him to public hatred, contempt, and ridicule. (Armentrout v. Moranda, 8 Blackf. *426.) Other cases say a libel is a malicious publication, expressed either in printing or writing or by signs and pictures, tending to either blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule. (Commonw. v. Clapp, 4 Mass. 163; 3 Am. Dec. 212; Root v. King, 7 Cow. 613.)

It is apparent, from these definitions, that the publication complained of- in this case is not libelous per se. The argument in this court proceeded on that assumption, and counsel for appellant seemed to concede that unless the alleged libelous matter were in some way aided by the matter alleged by way of inducement, or by the innuendoes, the action must fail. It is the office of the inducement to narrate the extrinsic circumstances, which, coupled with the language published, affects its construction and renders it actionable; when standing alone and not thus explained, the language would appear either not to concern the plaintiff, or if concerning him, not to affect him injuriously. (Towns. Slander and Libel, § 308.) But much of the former prolixity allowed in pleadings in actions for libel and slander is doubtless dispensed with and rendered wholly useless by section 90, Hill’s Code, which provides that, in an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but that it may be stated generally that the same was published of or concerning the plaintiff. But the code has not dispensed with the necessity of inducement or innuendoes where they are necessary to show the defamatory meaning of the words. (Wallace v. Bennett, 1 Abb. N. C. 478; Stewart v. Wilson, 23 Minn. 449; De Witt v. Wright, 57 Cal. 576; Blaisdell v. Raymond, 14 How. Pr. 265; Wachter v. Quenzer, 29 N. Y. 547; Carroll v. White, 33 Barb. 615; Wilson v. Fitch, 41 Cal. 363; Frank v. Dunning, 38 Wis. 270.)

But in this case, conceding all that is alleged by way of inducement to be true, the writing does not appear to have been defamatory or libelous. It is by the innuendo, taken in connection with the inducement and the alleged libelous matter, that the plaintiff seeks to sustain his complaint. In this class of actions, the ordinary rule undoubtedly is, that the words claimed to be libelous are to be construed according to their ordinary and usual import and meaning. It is only where the meaning is doubtful or equivocal that the pleader may by innuendo point'the language to the sense in which he wishes it to be understood. (Towns. Slander and Libel, § 142.)

The libelous words charged are: “ The insulting remarks offered to our representative manager, Mr. B. Neustadter, by your adjuster, O. H. Cole, at his office, in the matter of Le Lee & Co., warrant us to withhold any new business from your local agent here.” (Innuendo, “that the defendants meant and intended by said letter to impute to this plaintiff a lack of business ability and skill necessary to properly conduct his said business and to adjust said loss, and to transact said business of an adjuster of fire losses; and lack of honesty and integrity in his said business; and that the plaintiff was not a fit, proper or competent person to be employed in said business; and that if the plaintiff was so employed in the future, the defendants would withhold all business and patronage of their own, and such business and patronage as they could control from any and all insurance companies continuing to employ the plaintiff; and that the same was so understood by those by whom it was received and to whose knowledge it came as aforesaid.”)

The office of . an innuendo in pleading is well understood. It may serve for an explanation, to point a meaning where there is precedent matter expressed or necessarily understood or known, but never to, establish a new charge. It may apply what is already expressed, but cannot add to, enlarge or change the sense of the previous words. (Bar-ham v. Nethersole, Yelv. 22; Van Vechten v. Hopkins, 5 Johns. 211; 4 Am. Dec. 339; Hays v. Mitchell, 7 Blackf. 117; Patterson v. Edwards, 2 Gilm. 720; Weed v. Bibbins, 32 Barb. 315; Thomas v. Crosswell, 7 Johns. 264; 5 Am. Dec. 269; McClaughry v. Wetmore, 6 Johns. 82; 5 Am. Dec. 194; Holton v. Muzzy, 30 Vt. 365; Bell v. Sun. Print. & Pub. Co. 3 Abb. N. C. 157.)

The colloquium, or matter by way of inducement, is pleaded at great length in the complaint, but there are no facts alleged tending to show that the language used in the alleged libel could have any such signification as is averred in the innuendo. The words themselves have no such import, and the extrinsic facts alleged do not show that they were used in any such sense. The words are not equivocal in themselves, have no covert meaning, are plain and unambiguous. In such case they must be taken to have been used in the ordinary signification, and no authority can be found for allowing their meaning to be totally changed by means of an innuendo. The words make no defamatory charge against the plaintiff. For a reason which appeared sufficient and satisfactory to the defendants, they proposed in future to withhold new business. This they had the right to do, whether the reason given was such as ought to have influenced business men or not. They had the right to do it without giving any reason. (Payne v. The W. & A. R. R. Co. 13 Lea, 507; 49 Am. Rep. 666; Cooley, Torts, 278, 688.)

In whatever light the appellant’s contention may be regarded, we think it is not sustained by authority, and that the court below did not err in sustaining the demurrer, and its judgment must be affirmed.