Smith Bros. v. Agee & Co.
59 So. 647
Ala.
1912
Check Treatment
McCLELLAN, J.

— Action for damages for slander. According to the authority of Hatcher v. Branch, Powell & Co., 141 Ala. 410, 37 South. 690, and Greer & Walker v. Liipfert-Scales Co., 156 Ala. 572, 47 South. 307, this action is by the individuals (named in the caption of the complaint) composing the copartnership, and not by the copartnership.

*631The demurrer, filed August 24, 1909, was, in consequence, not well taken.

The defendants to the action (before amendment) were Walter C. Agee and W. C. Agee & Co., composed of Walter C. Agee and Edmund W. Rucker. Since “slander,” differing from libel (see Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 South. 800), is not a tort capable of joint commission by two or more persons, the demurrer, taking the point of misjoinder on that account, was properly sustained. — Singer Mfg. Co. v. Taylor, 150 Ala. 574, 43 South. 210, 9 L. R. A. (N. S.) 929, 124 Am. St. Rep. 90, and authorities therein cited. See, also, 25 Cyc. p. 434; Page v. Citizens’ Banking Co., 111 Ga. 73, 36 S. E. 418, 51 L. R. A. 463, 78 Am. St. Rep. 144.

The complaint was amended so as to eliminate all parties defendant except Walter C. Agee.

The fifth count of the amended complaint charged utterance by defendant of these words: “S. Hall is a half-brother of Smith brothers. His money went into the firm of Smith Bros. & Co. He is the company to the firm of Smith Bros. & Co.”

It is asserted in this count that the intention of the defendant in uttering these words was to convey,' and did convey, the idea that Smith Bros. & Co., composed as aforesaid, and S. Hall, a bankrupt, had concealed, removed, disposed of, and conveyed property belonging to Hall, who was then in an insolvent condition, with the intent to defraud the creditors of Hall; and that said concealment, transfer, conveyance, and disposition of Hall was wickedly, unlawfully, and wrongfully done; and that plaintiffs were untrustworthy, dishonest, and unreliable; and that credit should not be extended to them or confidence placed in them by the pub-*632lie and by those engaged in the sale of goods, by wholesale dealers and by brother -merchants.

In Labor Review Publishing Co. v. Galliher, 153 Ala. 370, 45 South. 190, 15 Ann. Cas. 674, it was said: Many of the textwriters and courts have recognized a distinction between that class of actions for libel where the object of the offending matter was the profession, trade, or business of the plaintiff, and that class where the publication was directed against the individual.— 25 Cys. pp. 326-329, 353-355, and notes. In the former class it has been held that the gist of the action is the injury intentionally indicted by the publication of the false matter, and that the averment of special damages will state a cause of action; and, in the latter, that in order to sustain the action the words must be susceptible of a meaning defamatory in character. — Iron Age Publishing Co. v. Crudup, 85 Ala. 519, 5 South. 332. A consideration of the controverted question as to whether the matter must be defamatory to maintain an action for libel of one in his profession, trade, or business is entirely obviated in this case, since the plaintiff has, by his innuendo, ascribed to the publication a meaning or meanings by which he is bound (Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020, 43 Am. St. Rep. 583), and the correctness of which must be'found, if the demurrer was properly overruled. So we are relegated to a construction of the publication to ascertain whether it is susceptible of the defamatory meanings attributed to it. — Gaither v. Advertiser Co., 102 Ala. 458, 14 South. 788. And, if the matter pleaded is not susceptible of the meaning ascribed, the action must fall. — Gaither’s Case, supra.”

These observances are pertinent to the question of the sufficiency of the fifth count of the complaint as amended. No special damage to the plaintiffs in their *633business or trade is averred in this count. — Newell on Slander & Libel, pp. 849, 850; Starkie on Slander, pp. 193, 202, 203; Townshend on Slander & Libel (4th Ed.) p. 261; 13 Ency. Pl. & Pr. pp. 38, 39.

Are the words quoted from the fifth count susceptible of the meaning ascribed to them, considering them in the light of the circumstances disclosed by the other averments of the court?

In themselves, these words are obviously innocent, harmless. When referred to the financial condition of Hall and to his relationship to the Smiths we are still unable to see how, from the words, the defamatory meaning ascribed could be reasonably attributed to them. Viewed in connection Avith the circumstances alleged, every intendment of the Avords reasonably consists Avith honesty, fidelity, trustworthiness, and justified confidence. Hall’s money could have found investment in the “company” Avith out semblance of fraud or wrong on his part or on that of the Smiths. So, also, could Hall haAre been the company in that firm. For aught that appears in the Avords charged, his financial connection or dealings or relation Avith the firm might have occurred long before Hall became insolvent, and long before the Smiths kneAv or had any notice of Hall’s financial condition. It is not the office of innuendo to introduce nerv matter or enlarge the natural meaning of words. — Gaither’s Case, supra. The meaning ascribed, in count 5, to the words set out therein, is not justified; and hence the count was insufficient. — Labor Review Pub. Co. v. Galliher, supra.

The count treated in Robinson v. Drummond, 24 Ala. 174, contained such words as, Avhen considered in connection with the fact that the defendant’s dAvelling had been feloniously burned in the nighttime, carried the *634necessary implication that plaintiff was the perpetrator of the arson.

Special plea 3, which will be set out, in the report of the appeal, was subject to the demurrer. Its purpose was to set up matter in bar of a recovery, not merely in mitigation of damages; and so, on the theory of qualified privilege. — Ferdon v. Dickens, 161 Ala. 181, 194, 49 South. 888. The plea’s theory placed it in the class of pleas of confession and avoidance. It. rvas defective in that it did not,-without condition, confess the utterance of so much of the words charged, as would support the cause of action. — 1 Chitty on Pl. (7th Amer. Ed.) p. 648; Williams v. McKee, 98 Tenn. 139, 38 S. W. 730; Prac. (N. Y.) 401-403.

In Jones v. Forehand, 89 Ga. 520, 16 S. E. 262, 32 Am. St. Rep. 81, and Kleizer v. Symmes, 40 Ind. 562, cited in support of the text in 25 Cyc. p. 459, subd. C, it was ruled that the assertion of privilege in the utterance was properly pleaded upon the condition that the words were spoken. These decisions appear to have been strongly affected, if not controlled, in conclusion, on this point, by statutes of force in those states.

Pleas must either traverse, or confess and avoid, the matter of the action declared on. And the element of confession, in pleas of that class, is as essential as that in avoidance. — Buddington v. Davis, supra.

Accordingly, grounds 9 and 10 of the demurrer should have been sustained.

The occasion upon which the defendant is charged to have uttered the words set forth in the counts aauis, we think, an occasion of conditional, qualified privilege. —25 Cyc. pp. 385-387. It was a meeting of the creditors of S. Hall. In amended count 6, for instance, it is alleged that the defendant, in that meeting, denounced the plaintiffs and Hall as “damn rascals,” and charg*635ed that the “failure of S. Hall was a cut and dried scheme between S. Hall and Smith Bros, to defraud the creditors of S. Hall.” The term “damn rascal” is an opprobrious expression and is one of the strongest expressions to convey the idea of moral turpitude.— Brown v. Mims, 2 Mill, Const. (S. C.) 235. It cannot be said that its utterance was foreign to the occasion, however untrue in fact it may have been. If Smith Bros, were the beneficiaries of the wrongful disposition of S. Hall’s assets, to the exclusion of their just application to the demands of S. Hall’s creditors, the act was fraudulent and dishonest; and if, in characterizing it, the speaker employed the expression averred, with actual malice, his fault lay in exceeding the privilege the occasion afforded.

“Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken.” — 25 Cyc. pp. 385, 386.

While there are authorities to the contrary, we think the sounder, better rule is that merely exceeding the privilege, in consequence of excitement or of intemperance of speech, does not per se destroy the privilege; but that such unnecessarily defamatory expression, upon the privileged occasion, may be considered by the jury in determining actual malice vel non in the utter*636anee; and which, if present, negatives an essential element of qualified privileged communication and defeats the defense based upon that character of privilege.— Fresh v. Cutter, 73 Md. 87, 20 Atl. 774, 10 L. R. A. 67, 25 Am. St. Rep. 575; Atwill v. Mackintosh, 120 Mass. 177; Townshend on Slander Q Libel, § 244b.

From these considerations it follows that special plea 3 is not otherwise subject to the demurrer.

The posture of the case will be so changed upon the next trial, in consequence of our conclusion as to the action’s being by the individuals and of the views stated, it is not noAV necessary to treat other matters discussed by counsel.

Reversed and remanded.

. Dowdell, C. J., and Anderson and Mayfield, JJ., concur. Simpson, Sayre, and Somerablle, JJ., dissent.