63 So. 980 | Ala. | 1913
— Action of libel brought by appellant, Kearn Fitzpatrick, against the Age-llera Id Publishing Company. From a judgment for defendant the present appeal is prosecuted.
There is but one count in the complaint; the court sustained a demurrer thereto, and, the plaintiff declining to amend, judgment Avas thereupon rendered for the defendant, permitting it to go hence without day. The publication complained of is set forth in hace Acerba in the complaint. It appears that a man by the name of Michael Brenna, othemvise called Micky Brennan, was shot in the city of Birmingham, Ala., on July 2, 1911, and on the next morning the defendant company published in its paper, the Age-Herald, an account of the shooting, detailing some • sensational facts Avith reference to the affair. The “offensive statement,” constituí
Counsel for appellee devotes practically his entire brief to the support of the proposition that the libel, if any, was of the thing — the house — and not of the plaintiff. The plaintiff charges that the alleged libelous words were falsely and maliciously published “of and concerning him.” There is no mention of the plaintiff’s name in the publication. By way of innuendo, the plaintiff avers that the said house mentioned in said publication was, at the time, and had been for a long time prior thereto, and has been ever since said time, occupied by the plaintiff, with his family, as a residence. The plaintiff insists that this averment sufficiently explains the precedent matter- — the publication — and shows that the said publication related to, and was a libel upon him. Unless the published words are fairly susceptible of the meaning attributed to them by the pleader in the innuendo, the actionable quality of the words is not disclosed, for the innuendo is but the deduction or conclusion of the pleader. The only office of the innuendo is to explain
It is strenuously argued that the plaintiff’s complaint shows that he was not libeled, and that the libel, if any, was of the thing, the house; that it is the house which has a bad reputation with the police, and not the occupants thereof. In support of this contention the following Alabama cases are cited: Cahan v. State, 110 Ala. 56, 20 South. 380; Toney v. State, 60 Ala. 97; Wooster v. State, 55 Ala. 221; Price v. State, 96 Ala. 5, 11 South. 128. The cases are not in point. The principle announced in two of these decisions is that, in a prosecution for keeping a certain character of house prohibited by law, the state cannot offer evidence of the character of the
The case of McClean v. New York Press Co., 19 N. Y. Supp. 262, is very similar, in many respects, to the case under consideration. ' The publication there charged that No. 234 West Twenty-Ninth street, in New York City, was disorderly. In that case the same question was raised as is raised in this case; that is, that the libel was of the thing — the house — and not of a person. Addressing itself to this point the court said: “It is manifest the point is not well taken. The phrase used, it is true, is ‘disorderly house,’ but a house cannot be elisor
We are of the opinion that the publication in question was “of and concerning” the plaintiff, who resided in the house in question.
In the case of Iron Age Publishing Co. v. Crudup, 85 Ala. 520, 5 South. 332, this court said: “The definitions of libel, as found in the cases, vary somewhat in phraseology, and are more or less comprehensive, as may be called for by the particular charge involved in the case. Generally any false and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel, which charges an offense punishable by indictment, or which tends to bring an individual into public hatred, contempt, or ridicule, or charges an act odious and disgraceful in society. This general definition may be said to include whatever tends to injure the character of an individual, or blacken his reputation, or imputes fraud, dishonesty, or other moral turpiture, or reflects shame, or tends to put him without the pale of social intercourse.”
The published words did not, it is true, charge the plaintiff, or any member of his family, with an indictable offense; but, giving to the publication the meaning that the words employed generally and fairly import, it tended to subject the plaintiff, the head of the house, to public hatred, contempt, or .ridicule, and tended to reflect shame upon him, and to put him without the pale of social intercourse. This being true, the words were
And, as we have above pointed out, the words, when published, were a libel upon the plaintiff. No one could doubt that the neighbors and friends of plaintiff, on reading this account of the shooting of Brennan, would conclude that the libel was directed to the plaintiff. It is not necessary that all the citizens of Birmingham should understand the libel, or know that the shooting occurred at plaintiff’s house; it is sufficient that those who knew could understand that he was the person meant. — Adger, Libel & Slander, p. 567; Petsch v. St. Paul Dispatch Printing Co., 40 Minn. 291, 41 N. W. 1034.
It is also objected that the complaint is faulty, in that punitive, as well as special, damages are claimed, and it is not averred that a demand for retraction was made before the institution of the suit, and that there was failure on the part of the defendant company to retract. The case of Comer v. Age-Herald Publishing Co., 151 Ala. 613, 44 South. 673, 13 L. R. A. (N. S.) 525, is cited in support of this contention. There is no merit in this contention. The law in force at the time the Comer suit was brought (Acts 1899, p. 32) is not the law now in force on this subject. The change is wrought by section 3750 of the Code of 1907. Assuming, without deciding, that the matter published was proper for public information, the failure to demand retraction is now, under the law, defensive matter. The Act of February 20, 1899, inhibited the institution of suits for libel brought against a publisher of a newspaper, unless a demand for retraction was made before the institution of the suit. This court, in Comer’s case, supra, held that this inhibition did not prohibit the bringing of suits for the recovery of actual damages. There is no inhibition
Assuming further, without deciding, that the plaintiff has failed to state a cause entitling him to punitive damages, but to' actual damages, the proper way to get rid of the improper demand is not by demurrer, but by motion to strike, objections to the evidence, or special instructions to the jury. — Western Union Telegraph Co. v. Garthright, 151 Ala. 413, 44 South. 212; Hayes v. Miller, 150 Ala. 621, 43 South. 818, 11 L. R. A. (N. S.) 748, 124 Am. St. Rep. 93; Woodstock v. Stockdale, 143 Ala. 550, 39 South. 335, 5 Ann. Cas. 578.
After a careful consideration of this case, we are of the opinion, and so hold, that the defendant’s demurrer should have been overruled, and that in failing to so rule there intervened error for which the judgment of the court below must be reversed.
Reversed and remanded.