Thе issue for consideration on defendants’ motion for summary judgment is whether the publication of a false report of a person’s death is sufficient to form the basis of an action for libel, and whether the same is actionable under and by virtue of the provisions of § 8-630, Code of Virginia, 1950; said latter section providing for a cause of action under the Virginia statute of insulting words relating to “all words which from their usual construction and common acceptation are construed as insults and tend to violence and breach оf the peace”.
The plaintiff is a citizen of the State of New York and, at the time of the facts hereinafter related, was a member of the United States Navy assigned to the U. S. S. Darby. The defendants are citizens of the State of Virginia and are ■owners and publishers of a weekly newspaper operating under the name of “Peninsula Enterprise”, whose news coverage and primary circulation is throughout the Eastern Shore of Virginia. In its weekly edition distributed to the public on or about May 31, 1956, a news article reported the following:
“Sailor dead as result of crash at Kiptopeke.
“Shore couple in other car were on jaunt following high school dance.
“A young sailor, James O’Neil, of the U. S. S. Dаrby, died in Portsmouth Naval Hospital Monday, the aftermath of a two-car crash on Kiptopeke Ferry Terminal property just аfter midnight last Friday night.”
The balance of the news story related certain details with respect to the accident which are not pertinent for consideration in the instant litigation. It is sufficient to state that the article in question placed no responsibility for the аccident upon the plaintiff herein, or any of the occupants of the car in which plaintiff was riding as a passenger. The basis of plaintiff’s claim is that he was reported as dead when, in fact, he was only seriously injured.
It is conceded by counsel that defеndants acted without malice and knowledge of the falsity of the report as published. There may be unusual circumstances in which the publication of a false report of a person’s death is sufficient to give rise to an action for libel. For example, if the circulated report states that a person has been found dead under disgraceful circumstances, the libelous imputаtion goes further than the mere publication of a false report of death. The right of action has been upheld with respеct to the publication in a newspaper of the obituary notice of a woman whose age was greatly exaggerаted, where the newspaper editor had conceived and published the notice with a malicious intent and with knowledge of its falsity. McBride v. Ellis,
Actually the information with respect to the death of plaintiff was obtainеd by defendants through the statement of. a Virginia State Trooper who had apparently been misinformed with respect to plаintiff’s true condition. Defendants had no personal acquaintance with plaintiff and there existed no cause for the publicаtion of an erroneous report of his death. Simply stated, it was one of those errors which will occur in the publication of а newspaper, but this is not to say that all erroneous reports give rise to an action for libel or under the Virginia statute of insulting words.
As was said in Carwile v. Richmond Newspapers, Inc.,
Manifestly, the alleged defamatory words are not actionable per se as (1) they do not impute to the plaintiff the commission of a criminal offense involving moral turpitude, (2) they do-not impute to the plaintiff any suggestion that he is infected with a contagious disease which, if true, would exclude him from society, (3) they do not prеjudice the plaintiff in his profession or trade, and (4) it can hardly be said that they impute to the plaintiff any unfitness to perform the duties оf an office or employment of profit, or one of integrity in the discharge of such an office or employment. As to all other defamatory words not in themselves actionable per se, it is necessary for the plaintiff to show special damage. While ordinаrily the gravamen of the action is the insult to the feelings of the offended party, and not the intention of the party using the words, the nature of the words used must from their usual construction and common acceptation be construed as insults and tend to violence and breach of the peace. The meaning of the alleged defamatory language cannot, by innuendo, be extended beyond its ordinary and common acceptation. Plaintiff has not alleged any special damage in his complaint which would suggеst that the erroneous publication of notice of his death had adversely affected the duties of his office or emplоyment of profit, or otherwise prejudiced him in his profession or trade. In holding that the publication of the false report of а person’s death is not actionable when unaccompanied by special circumstances, it is the duty of the Court to sustain thе defendants’ motion for summary judgment and dismiss the action.
The foregoing makes it unnecessary to discuss the questions of privilege and jurisdictiоnal amount as raised by said defendants in other grounds asserted, in the motion for summary judgment. Neither point is free from doubt but an extended disсussion of these issues would merely prolong this memorandum.
Counsel for the defendants will prepare an order in accordance with this