Pandolfo v. Bank of Benson

273 F. 48 | 9th Cir. | 1921

GILBERT, Circuit Judge

(after stating the facts,as above). [1] The defendants rely upon the proposition that the limit of liability of members of an unincorporated association is that the members are responsible for tortious acts committed by the society, where it can fairly be assumed that they were within the scope of the purpose for which the organization was formed, citing 5 C. J. 1364, and they contend that no such allegations of fact appear in the complaint. It is argued that the title of the book published by the association shows that it merely sets out an account of the proceedings of the association, and that the publication of such an account is not a matter within the scope of the-purpose of the organization upon which all the members can fairly be said to be responsible. To this we cannot assent. We do not find that it appears from the complaint that the publication of the account of the annual proceedings of the association is not a matter within the scope of the purpose of the organization. The complaint distinctly alleges the contrary. It alleges that the association was engaged in publishing the book and distributing the same, that it published one such book Every year, and that the book in question was the tenth of the series, and even if there were no allegation that the publication of the proceedings was within the scope of the purpose of the organization, it would be but reasonable to hold that the publication of such a volume, issued as it was annually, giving an account of proceedings of the association, was distinctly within the scope of the purpose of such an association. It appears from the complaint that the letter was read by the secretary to the association as' part of the proceedings of the association, and the secretary’s subsequent remarks indicated his purpose, unless otherwise directed by .the association, to publish the letter in the report of the proceedings. The fact that the association approved his action in so doing is clearly deducible from the fact that the letter was embodied in the report, and that the defendant caused the report to be published and circulated. If it was true that the plaintiff had newly arrived and was “operating in the states of Arizona and New Mexico,” and was such a man as in the letter he was said to be, the action of an association of bankers of one of those states in giving public warning against him was both appropriate and commendable.

[2] The members of an unincorporated association are liable in their collective capacity for tort (5 C. J. 1369; 25 R. C. L. 67), and they are answerable for damages for libel published by their agent with their authority- while the agent is acting within the scope of his employment, just as a corporation is liable under like circumstances (United Mine Workers of America v. Coronado Coal Co., 258 Fed. 829, 837, 169 C. C. A. 549; Buckeye Cotton Oil Co. v. Sloan, 250 Fed. 712, 719, 163 C. C. A. 44; Grand Union Tea Co. v. Lord, 231 Fed. 390, 145 C. C. A. 384, Ann. Cas. 1918C, 1118; Muetze v. Tutcur, 77 Wis. 236, 46 N. W. 123, 9 L. R. A. 86, 20 Am. St. Rep. 115; Cotton v. Fisheries Products Co., 177 N. C. 56, 97 S. E. 712; Morse v. Modem Woodmen, 166 Wis. 194, 164 N. W. 829, Ann. Cas. 1918D, 480).

[3] In Washington Gaslight Co. v. Lansden, 172 U. S. 534, 545, 19 Sup. Ct. 296, 300,43 E. Ed. 543, where a corporation was sued for libel, the court said:

•‘We do not mean that in order to render the company Hable there must be some evidence of authority, express or implied, given to t lie manager to publish or to authorize the publishing of a libel, but there must be some evidence from which an authority might be implied on the part oi' the manager to represent the company as within the general scope of his employment.”

The allegations of the complaint in the case at bar bring the action of the secretary within the rule so announced. We think that the demurrer should have been overruled.

We find no error in the rulings of the court below in striking from the complaint a^s surplusage certain allegations inserted by way of innuendo to explain the meaning of the word “crooked,” as used both as an adjective and a verb, and the word “crook”; the allegations being to the effect that those words implied “criminal conduct,” “embezzlement,” “theft,” “larceny,” and “violation of Criminal laws.”

[4] If libelous words are actionable per se, no innuendo is necessary. It is only where the words are-not actionable upon their face that the plaintiff must allege by way of innuendo the defamatory sense in which they were used. 25 Cyc. 451; Bourrescau v. Evening Journal Co., 63 Mich. 425, 30 N. W. 376, 6 Am. St. Rep. 320; Broad v. Deuster, 8 Biss. 265, Fed. Cas. No. 1,908; Fredrickson v. Johnson, 60 Minn. 337, 62 N. W. 388; Scofield v. Milwaukee Free Press Co., 126 Wis. 81, 105 N. W. 227, 2 L. R. A. (N. S.) 691; Gosling v. Morgan, 32 Pa. 273; Courtois v. King Paper Co., 172 Mich. 311, 137 N. W. 699.

[5, 8] It is true that where words have two meanings, one of them harmless and the other injurious, the innuendo may properly point out the injurious meaning, and although’the words “crook” and “crooked” have two meanings, one of which is harmless, there is no harmless meaning when they are applied to an individual or to human conduct. Where so applied, the common understanding of mankind imputes defamatory meaning to them. Said the court in Midland Pub. Co. v. Trade Journal Co., 108 Mo. App. 220, 233, 83 S. W. 298, 301:

“There is no eovert meaning in any of the words used in the headline. They are not ambiguous, and do not require an innuendo to explain the meaning of any of them, or to apply them. Any ordinary reader can understand them. They charge Reifsnider with being ‘crooked’; that is, dishonest.”

The judgment is reversed, and the cause is remanded, with instruction to overrule the demurrer and for further proceedings.