77 Wash. 171 | Wash. | 1913
Appellant brought an action against respondent, charging it with libel in publishing certain articles of and concerning him. In the second amended complaint, three causes of action, based upon three publications, were set forth. These articles were set forth in full as published, to which was added an allegation that they were wholly false and maliciously published for the purpose of injuring appellant in his reputation and to expose him to public hatred, contempt, ridicule, and disgrace. A demurrer was interposed to this complaint, which was sustained upon the ground that the articles complained of were not libelous per se, appellant having failed to charge any special damage. Appellant electing to stand upon his second amended complaint, judgment of dismissal was entered, and he appeals.
These articles were as follows:
*174 (1) “Denouncing Flag as Dirty Rag May Cost Wells Citizenship.
“Chief Examiner of Naturalization Bureau Takes Up Alleged Statements of Socialist Mayoralty Candidate.
“Having heard that Hulet M. Wells, candidate for the mayoralty on the Socialist ticket at the last municipal election, and at present a civil service employee of the city in the lighting plant, had been reported to say this morning that the Stars and Stripes was a dirty rag, and that his sympathies were all with the paraders of last evening, proceedings were begun today by Chief Examiner John Speed Smith, of the government naturalization bureau, to revoke his rights of citizenship, if it can be shown he is not a native bom citizen.
“Following close upon the declaration of fellow employees that he had made life almost unbearable at the lighting plant during the recent agitation over the red flag and that today, particularly, he had made numerous vicious statements concerning government and respect for law, formal complaint was registered with the naturalization bureau and investigation into his record begun.
“Complaints were registered both with the naturalization bureau and with the office of the United States marshal. After the evidence had been transferred to a special agent of the department of justice, he laid it before Chief Examiner Smith, with recommendation that Wells be prosecuted if it be found that the statements actually had been made by him.
“It is feared by the government that it will be impossible to reach him through the federal courts, inasmuch as it is believed that he is a native-born citizen. In that case it will be necessary to take the case into the state courts.
“Naturalization can only be revoked when an alien has been found guilty of sedition at the time he took his oath of allegiance, and no American-born citizen can be attacked in this way for expounding treasonable views.
“In case it is found that he is a native-born, the evidence will be referred to Prosecuting Attorney John F. Murphy, with request on the part of the government that he be prosecuted by the state. Such action could be taken under the statute prohibiting insults to the Stars and Stripes.
“Wells at one time was a civil service employee of the*175 United States in the postoffice. He is also known to have been at one time a student of the State University. At present he is under civil service working for the city; and if necessary to reach him, formal complaint against him will be made to the Civil Service Commission by the government.”
(2) ' “Needed Evidence Supplied Mubphy.
“Hulet M. Wells, one-time candidate for the mayoralty on the Socialist ticket, former student at the State University and later employed for a time in the Seattle postoffice, will be the first to be prosecuted by the state for public disrespect of the American flag, if Prosecuting Attorney John Murphy fulfills his pledge to the people of Seattle, made Friday afternoon.
“Names of two witnesses, fellow-employes of Wells, at the municipal lighting plant, who informed government officials Thursday of last week that his insults towards the flag had become unbearable, were obtained yesterday by Secretary Robert McCormick of the Spanish War Veterans in this city, and will be turned over to the prosecuting attorney tomorrow.
“This will be done in accordance with the request of Mr. Murphy to the veterans that all tangible evidence as to public acts against the American Flag be given to him for examination and prosecution. This request was conveyed in an interview between Murphy and McCormick Friday afternoon.
“At the time the matter was reported to United States Marshal J. R. H. Jacoby, and later to the department of justice and the government naturalization bureau, the employees stated that Wells had called the flag a ‘dirty rag,’ and that his taunts had become more than they could endure peaceably.
“The matter was immediately taken up by Chief Examiner John Speed Smith of the naturalization bureau, in order to. deprive Wells, if possible, of his citizenship; but it was found! that he had been born in Skagit county, and, being native-born, is therefore beyond the reach of the United States officers so far as revocation of citizenship is concerned.
“The statute under which prosecution may be carried forward defines the public desecration or disrespect of the Stars and Stripes as a misdemeanor. The law was put into effect in 1909, and so far as is known has never been made the basis of prosecution in King county before.”
*176 (3) “$10,000 Suit Brought Against Times by Man
Who Reviled U. S. Flag.
“Hulet M. Wells, Who Denounced Old Glory as ‘Dirty Rag’ Peeved by News Articles in This Paper.
“In an effort to capitalize notoriety achieved through revilement of the American flag, Hulet M. Wells, redtinted agitator and whilom socialist, yesterday brought suit against the Times Publishing Company for $10,000, in which amount, he represents, he was damaged by news stories published in this newspaper. One of these published May % of this year, is headed ‘Denouncing the Flag as Dirty Rag May Cost Wells Citizenship.’ The other, published May 5, headed: ‘Wells May Be First to Face Local Jury for Insulting Flag.’ Both these articles Wells charges constitute libel.
“The incident responsible for the suit came up at the time The Times expressing the sentiment of an outraged American citizenship against I. W. W. outrages, and constructive sedition and treason, voiced in the rantings of characters of the Wells stripe, turned a drenching stream of publicity upon the fire of incipient revolution. This newspaper vigorously attacked the sources responsible for the menace to the city’s and country’s well being, and by confining the flames to the narrow confines of their origin and maintaining a relentless warfare upon them, stamped out the whole movement.
“The I. W. W. element was virtually kicked out of town through sheer force of public sentiment. A few of the Wells ilk and other opportunists seeking reputations as radical agitators took advantage of the opportunity to obtain some of the yellow publicity so important to the success of efforts to win leadership in the rag-tag forces they lead. They jumped into the fray and elbowed the I. W. W.’s aside so that some of the newspaper flaying might descend upon their own shoulders.
“Wells, in particular, made a spectacular show of himself. He outranted the I. W. W.’s and leaped beyond the last border of unloyalty and indecency they had established by denouncing Old Glory as a ‘dirty rag.’
“This despicable act brought a cry of protest from all quarters, and citizens urged federal and county authorities to invoke criminal laws against him.
“The Times printed the truth about the whole nasty affair, handling Wells without gloves.
*177 “In the complaint of his suit, Wells declares the publications were ‘malicious and with the purpose of injuring plaintiff, exposing him to hatred and contempt of the people, and depriving him of the benefit of public confidence and social intercourse and bringing him into disrepute among his friends and neighbors and with others of the social organization and party and the people at large of the city of Seattle and the state of Washington.’
“Some Points Missing.
“ ‘The people’ to whom Wells refers in his complaint, with inconsiderable exception, are Americans, every one of whom loves, honors and respects the Stars and Stripes. How Wells possibly could figure that he possessed any ‘public confidence’ of these people which he might be deprived of, after he had wantonly insulted the symbol of a patriotic allegiance they treasured above all else, is not set forth.
“Among interesting observations of the complaint’s preamble — interesting when the truth about the crooks and turns of the Wells character is known — are his declarations that he ‘holds a prominent and influential place in the Socialist party.’ As a matter of fact, the most active agents in the discrediting and denunciation of Wells at the present time are members of the Socialist party. They claim that he has been kicked out of the regular ranks of their organization.
“The two articles that Wells is using as the basis of his suit are republished in full herewith. The first publication in the Times of May 2,1912, under the heading, ‘Denouncing Flag as Dirty Rag May Cost Wells Citizenship.’ ” (Here follow the first and second articles as above quoted.)
The respondent, by its demurrer, admitting the false and malicious character of the publications, it only remains for us to decide whether or not, in the absence of a plea of special damage, the words so published are actionable as libelous per se. In Quinn v. Review Pub. Co., 55 Wash. 69,104 Pac. 181, 133 Am. St. 1016, matter libelous per se is defined as any publication which falsely and maliciously tends to bring an individual into public hatred, contempt, or ridicule, or charges an act odious and disgraceful in society, including whatever tends to injure the character of an individual or blacken his
We come, therefore, to the maní question submitted by this appeal, Do these several publications, as set forth in this second amended complaint, fall within the rule stated? And in answering this question in the affirmative, we confess our inability to understand the reasoning which holds they do not; for it seems to us these publications are so plainly libelous per se as to admit of no question. Respondent supports the ruling on the demurrer by contending, that in none of the articles is there any direct accusation against appellant; that they merely purport to be the theories and proceedings of agents of the Federal government, in stating that certain things had been reported and that an investigation was to be made and, if upon such investigation these reports were found to be true, certain proceedings might be had; and it is also contended that (1) there is no attack upon appellant in his business or profession, and (2) no charge against him of
It will not be necessary to here determine whether, as applied to these first two publications if standing alone, this rule could be invoked to sustain the demurrer, for the publication of the third article with the reproduction of the first two, and its evident purpose and intent as plainly indicated as it is possible for language to express, robs the McClure case of any application to the question before us. For in this third publication, as distinguished from the McClure case, is found a direct charge of guilt of the offense referred to in the second publication. Not only referred to, but the second publication goes further, in giving the names of the witnesses by whom the offense can be established, and making special reference to the statute which defines it to be a crime. Whatever then may have been the purpose of the first two articles, the third is a direct personal charge
Respondent justifies the judgment further by referring to Urban v. Helmick, 15 Wash. 155, 45 Pac. 747, where it was said that to call one k hog is not libelous per se, ks such language does not expose the one of whom it was spoken “to public hatred or contempt in the sense or to the degree required by the law of libel.” There is no comparison between the language used in the Urbcm case and that used in the articles under discussion, and conceding that that case binds us to the rule there announced as applicable to the language there used, we cannot extend such immunity to the language
If we are to decide the question before us with reference alone to our own decisions, without any reliance upon the legal principles involved, reference might be made to Bryne v. Funk, 38 Wash. 506, 80 Pac. 772, where it was held that a publication calling a county commissioner “a liar and poltroon” was libelous per se. Also Quinn v. Review Pub. Co., supra, where an article charging one with being party to a system of municipal jobbery and graft was held libelous per
Crow, C. J., Fullerton, Mount, and Parker, JJ., concur.