Wofford v. Meeks

129 Ala. 349 | Ala. | 1900

TYSON, J.

Tlie questions presented for consideration involve the right of the plaintiff to maintain this action. The complaint avers that the plaintiff was a member of the commissioners’ court of-Etowah county; that the defendants were opposed to him politically and that the alleged libelous publication was intended and purported to bring him under suspicion and to cause the opinion and belief to be entertained by his neighbors,' that he was dishonest, corrupt and unworthy of trust and confidence, etc.

The first question to be determined is, was the publication libelous per se? In determining this question we are confined to a construction of the language employed in the publication, and cannot look to the in-uendo alleged in the complaint. That is but the deduction of the pleader from the words used in the publication, and unless his deduction is supported by the language of the publication, the actionable quality is not legally disclosed. For an inuendo serves merely to explain matter already expressed or to point out Avhere there is precedent matter. It may apply to what is already expressed, but cannot add to, enlarge or change the sense of the words of the publication. It is for the court to say whether the meaning charged by the inuendo can be legally attributed to the language used in the publication and for the jury to ascertain whether the intent charged be true in fact. If this inquiry is decided by the court adversely to the pleader, “this puts an end to it; for it is not permissible to make proof that the words employed were uttered in the sense or with the meaning imputed to them in the inuendo. That is not the subject of proof.” Gaither v. The Advertiser Co., 102 Ala. 458; Henderson v. Hale, 19 Ala. 154.

In the case of Iron Age Publishing Co. v. Crudup, 85 Ala. 520, 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 malicous 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 turpitude or reflects shame or tends to put him Avithout the pale of social intercourse.” This quotation clearly recognizes the principle that if the words employed in the alleged libelous publication impute dishonesty or corruption to an individual, they are actionable per so — a principle well established in other jurisdictions. — 13 Am. & Eng. Enoy. Law, 293, 296, and note 3.

So, too, it i>s libelous to impute to any one holding an 'office that he has been guilty of imqn'oper conduct in office or has been actuated by wicked, corrupt or selfish motives.- — -Newell on Def., 'Sland. & Lib., p. (59.

We do not understand from the argument of defendants’ counsel, that they controvert those propositions. Their contention, on the point under consideration, is, that the language of the publication is not reasonably susceptible of a construction imputing -dishonesty to tbe commissioners. Their insistence is that the -article when properly construed is nothing more than a criticism of their conduct in the extravagant administration of the finances of the county. If this insistence is sustained by the language employed, then unquestionably the right of newspapers to discuss questions relating to the welfare, -comfort and happiness of the people, it must be understood that this confers on them no immunity from liability in publishing -a libel, other and different from any other person. Editors have full liberty to criticise the conduct and motives off public men -and measures and policy of government, but the discussion must be fair and legitimate. If an editor goes out -of his way to asperse the character of -a public man or set of men and to ascribe to him or them base and corrupt motives, he does so at his peril; and must prove the truth of his charges -or answer in damages to the party or parties injured.—Davis v. Shepstone, 11 App. Cas. 187; Post Pub. Co. v. Hallam, 59 Fed. 530, and cases there cited; McAllister v. Detroit Free Press Co., 15 Am. St. Rep. 318, and note.

This brings ns to a 'Construction of the language employed in the publication. In 'Construing it, the scope and meaning of 'the whole must be considered and interpreted as others would naturally understand it. Positive assertion of a charge is not necessary to constitute a writing libelous; they may be.made in the form of insinuation, allusion, irony or questions, and the matter will be as defamatory as if asserted in positive and direct terms. Taking the words in their ordinary acceptation, if they convey a degrading imputation, however indirect, it is a libel. As was said in Peake v. Oldham, 1 Cowp. 275: “When words from their general import appear to have been spoken with a view to defame a party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them.”—Rice v. Simmons, 31 Am. Dec. 766, and authorities -cited; cases cited in note 1 on p. 378 of 13 Am. & Eng. Ency. Law, also text on pp. 384-5. Applying these principles of construction to the publication in hand, the conclusion is irresistible that its language imputed to the commissioners the I>ro'Stitution of the finances of the county to the end of awarding contracts to persons of their political faith —an insinuation, to say the least of it, of conniption and dishonesty.' For it will hardly be gainsaid that if the commissioners gave preference in awarding contracts to one -of their political faith, when hi® bid exceeded the offer of another, solely because he was of their political faith, that this was corruption — dishonesty, — and they . were unworthy of the confidence and trust, reposed in them as the fiscal agents of the county. Such is the warrantable implication, we think, from the language employed in the publication. Ivey v. Pioneer Saving & Loan Co., 113 Ala. 349; McDonald v. Press Pub. Co., 55 Fed. Rep. 264; Cotulla v. Kerr, 15 Am. St. Rep. 823.

The remaining question to be determined is, was-the plaintiff so affected and particularized by the publication that he can maintain this suit? 'The article makes no reference to the commissioners’ court, but is leveled at the commissioners, and is an arraignment of tlie 'Commissioners of Etowah county. It is, as we have shown, the conduct of these men, as a class it may be, that is assailed. The imputation of corruption and dishonesty is clearly aimed at the individuals who make up and constitute the court, and not at the court as an integral body. The averments of the complaint show that the plaintiff was one of the commissioners at the time the contracts were charged in the article to have been made and at the date of its publication. In this 'class of cases the rule is: “The defamatory words must refer to some ascertained or ascertainable person, and that person must be the plaintiff.” — Odger-s’ L. & S. 127.

Mr. Freeman, in his note to case of Jones v. The State, 70 Am. St. Rep. 756, after reviewing the cases, says: “We apprehend the true rule is that, although the libelous publication is directed against a particular class of persons or a group, yet any one of that class or group may maintain an action upon showing that the words apply especially to him.” And, further, he cites the cases approvingly which hold that each of the persons composing the class may maintain the action. We think this the correct doctrine, and it is certainly supported by the great weight of authority.—13 Am. & Eng. Ency. Law, 392 and note 1; Hardy v. Williamson, 86 Ga. 551; s. c. 22 Am. St. Rep. 479.

Rut it is said in ans wer to all this, by appellees’ counsel, conceding the publication to be libelous, the 'plaintiff as a commissioner may have voted against the making of the contracts, and therefore, he is not and cannot be referred to in the publication. This proposition might be tenable if the complaint admitted the making of the contracts charged to have been corruptly entered into in the publication. Rut it is absolutely without merit in the face of the averment that the entire publication is “false, untruthful, scandalous, malicious and ' defamatory;” and especially is this true, where the defendants by their motion to strike the substantial allegations of the complaint, confess the truth of every material averment thereof.

-Reversed and rendered.