Kutcher v. Post Printing Co.

Beard, Justice. This is an action for libel, brought by the plaintiff in error against the defendants in error, in the District Court of Sheridan County. A general demurrer to the petition was sustained and plaintiff electing to stand upon his petition, judgment was entered dismissing the petition, and plaintiff brings the case here on error. The plaintiff in his petition, after alleging that defendant, Post Printing Company, was a corporation; that defendant Tynan was the president and a member of the board of directors of said company; that said company was engaged in printing and publishing a semi-weekly newspaper, called The Sheridan Post, at Sheridan, Wyoming, which newspaper had a wide circulation in said city and elsewhere; and that plaintiff was the duly elected, qualified and acting Mayor of said City of Sheridan, alleged: “That on the said 18th day of March, A. D. 1913, the said defendants — 191 — maliciously published of, and concerning, the plaintiff in the said newspaper of the said Post Printing Company, which said newspaper was then widely'circulated'by them, the following false, malicious and defamatory matter, to-wit: “PIERCE SKIPS; DIVE REOPENS. ‘'Victim oe murderous assault patd to leave town. WOUND NOT HEALED. TOOMER DEEIES ORDER TÓ CLOSE CLUB-RTDGWAY SAYS CLOSED, BARTENDER ANSWERS TELEPHONE. "Over the telephone Monday morning: “ ‘Hello, is this the Maple Leaf Club?’ ‘Yes.’ “‘Is Toomer there?’ ‘Not just now; he’s down at the house.’ “ ‘Who is this speaking?’ ‘This is the bartender.’ "Chief of Police Ridgway’s statement, five minutes later: ‘The Maple Leaf Club is closed tighter than a drum. No, sir — there’s nothing doing down there and won’t be; it’s closed up tight. Toomer asked me how long it was to remain closed and I told him “forever.” ’ “To Mayor Kutcher: “Why, if you ordered the Maple Leaf Club closed, as you say, did you not see that your order was enforced? “Do you not know it to be a fact that the club was never closed, except possibly for a day or two ? “If you sincerely intended to close the resort, why did you not order the bar removed after your attention had been called to the fact that a bar was operated on the premises? “Why did you not confiscate gambling paraphernalia be-longingto the club? “Why did you not drive Toomer out of the restricted district? You knew that he lived at the negro dive operated by ‘Lillian Russell.’ Why was he not banished with other habitues of the district? — 192 — “What is the reason for Toomer’s boasted protection ? “Why was Toomer permitted to sell liquor on Sunday? Why do you permit open violation of ‘Order No. 4,’ prohibiting the sale of liquor in the restricted district? “Justice was thwarted by an unseen hand, Sunday, when plenry Pierce, victim of a murderous assault by George Toomer, negro dive keeper, was ‘railroaded’ out of town within 24 hours of the preliminary hearing of his assailant. Unless he can be found the case against Toomer will be dropped. “ ‘Headed westward’ is all the information the police can give with reference to ••the mysterious disappearance. He simply ‘evaporated.’ “Two weeks ago Sunday — at midnight — Toomer visited Pierce’s room; 12 North Sheridan avenue, for the purpose of collecting an alleged gambling debt which Pierce declared he owed another man. The money was lost in Toomer’s ‘club’ in the Yager building, Grinnell avenue and Scott street. Words passed and Toomer shot Pierce through the head, the bullet entering his left eye and lodging in the neck. Pie was at once arrested and placed under bond, at first $100 and later increased to $1,000. “Several days after the shooting Pierce was operated upon for the removal of the bullet and has since been convalescing at the State Hospital — until Sunday. Toomer’s preliminary hearing was postponed until yesterday in order to permit the principal prosecuting witness to appear in person. “Sunda)'- morning, while Superintendent Shannon was at home, Pierce left the hospital with another negro unknown to the authorities. Pie has not been seen since. Where he has gone is a matter of conjecture — why and by what means is only too apparent. He was paid to leave the city. “Dr. W. A. Steffen, county physician, who was attending Pierce, was out of the city Sunday morning and did not know the patient had left the hospital until informed by the chief nurse upon his return. County Attorney Diefenderfer — 193 — was confined to his home by illness yesterday, and knew nothing of the witness’ getaway until late in the afternoon. Police and sheriff’s office betray slight interest in the incident and have made no effort to locate Pierce. “As an interesting detail of the affair it is learned that Pierce’s hospital bills were paid, the money being received through Dr. Steffen. While admitting that he received money for the bills and turned it over to the hospital, the county physician states that Toomer did not appear in the transaction, although he virtually guaranteed Pierce’s hospital and doctor bills. He smilingly asserts that he thinks he knows where he can collect for his own services. “Toomer of course denies all connection with Pierce’s disappearance, declaring that he had been out of town and only returned Sunday morning about ip :3o. It was shortly after that hour that Pierce walked out of the hospital. “As Pierce’s wounds have not yet healed it would be a comparatively easy matter to apprehend him. What steps will be taken to locate and bring him back to Sheridan is a question whose answer is up to the county attorney. Without him Toomer will escape punishment for his crime. Possibly the ‘third degree’ applied to Toomer would result in disclosing the present whereabouts of his victim. “That Pierce was paid to ‘skip’ is too obvious to require comment. He had no money at the time of the shooting, as evidenced by the fact that he could not pay his gambling debt.” It is then alleged: “Sixth: That in and by said word's and matter herein-above quoted and set forth and so published by the defendants as aforesaid the said defendants, among other things intended to, and did accuse the said plaintiff of, and then and there and thereby intended to convey, and did convey, to the readers of said newspaper, of and concerning the plaintiff and which was by said readers so understood, each and all of the following: “(a) That the said plaintiff as such said Mayor of the said City of Sheridan did unlawfully permit a dive, namely, — 194 — a disorderly place, to be carried on and conductéd in the said City of Sheridan in violation of the laws and ordinances governing the said City of Sheridan, by the said Maple Leaf Club : “(b) That the said Maple Leaf Club owned and had, in its possession, within the said City of Sheridan, gambling paraphernalia at the place where it conducted said club used by its members for the purpose of gambling and that the said plaintiff as such said Mayor wrongfully and unlawfully failed to perform a duty to confiscate said gambling paraphernalia: “(c) That the said plaintiff as such said Mayor of the said City of Sheridan did knowingly and unlawfully permit one Tooner, within the said City of Sheridan, to violate the laws and ordinances governing the said City of Sheridan, and that the said plaintiff as such said Mayor did unlawfully and corruptly protect the said Toorner in the violation of the said laws and ordinances: “(d) That the said plaintiff as such said Mayor of the said City of Sheridan did unlawfully and knowingly and in violation of the laws and ordinances governing the said City of Sheridan, permit the said Toorner to sell liquor within the corporate limits of the said City of Sheridan on Sunday: “(e) That the said plaintiff as such said Mayor of said City of Sheridan, did knowingly, unlawfully, and in violation of the laws, ordinances and orders governing the said City of Sheridan, permit open violations of the said liquor laws and ordinances prohibiting the sale of liquor within the said city: “(f) That the said plaintiff has wholly failed to perform the duties of his office as such said Mayor of the said City of Sheridan, was and is a corrupt official, was and is guihy of malfeasance in office as such said Mayor and has connived with and protected persons within the said City of Sheridan in the violation of the laws and ordinances of the said City of Sheridan. “Seventh: That by reason of such false, malicious and defamatory publication and of. the facts and premises-afore — 195 — said, the plaintiff has suffered damage in the sum of ten thousand dollars.” It is contended that the petition is insufficient in that it does not allege that the the matter was published of and concerning plaintiff in his capácity as Mayor, and that no special damages are alleged. The matter alleged to be libelous was addressed to plaintiff as Mayor and has reference to his official conduct, and plainly shows on its face that it was used of and concerning him in his official character. When it so appears on the face of the publication no express allegation that it was so used is necessary. Odgers on Libel and Slander (5th Ed.), 53; Stoll v. Houde et al., 34 Minn. 193, 25 N. W. 63, in which case the allegation was in the same form as in this case. The court said: “The language of the alleged libel, as pleaded, plainly shows on its face that it was used of and concerning the plaintiff in his official character of county treasurer. Therefore, it was unnecessary that the complaint should contain an express averment that it was so used.” . It is well settled that if the language used was libelous per se it was not necessary to allege special damages. The real question presented by the demurrer is, whether the publication as alleged in the petition was libelous or not. Notwithstanding the elaborate brief of counsel for defendant in error, we do not feel called upon to enter upon an extended discussion of the law of libel. For the purpose of determining the questions presented by the demurrer all matters well pleaded must be taken as admitted, and for that purpose in this case the demurrer admits that plaintiff was the Mayor of the City of Sheridan; that the statements contained in the published article with respect to him were false, and were published maliciously. In Newell on Slander and Libel (2nd Ed.) 37, after giving a large number of definitions of libel, the author says: “In conclusion, it may be said that any publication, expressed either by printing or writing or by signs, pictures or effigies or the like, which tend to injure one’s reputation in the common estimation of mankind, to throw contumely, shame or disgrace upon him, or which tends to — 196 — hold him up to scorn, ridicule or contempt, or which is calculated to render him infamous, odious or ridiculous, is prima facie a libel, and implies malice in its publication.” And in 25 Cyc. 346, the rule is stated and supported by a long line of decisions, that “any language, whether spoken or written, imputing want of integrity, a lack of due qualification, or a dereliction of duty to an officer or employee is actionable per se." To the same effect, see 18 A. & E. Enc. Law (2nd Ed.) 949. . Where, as in this case, the ques-' tion is as to the sufficiency of the allegations of the petition to state a cause of action, it is for the court to determine whether or not a libel is set forth, but if the words alleged are fairly susceptible of a construction which would render them actionable, the pleading will be upheld and the question will be submitted to the jury. (18 A. & E. Enc. Law (2nd Ed.) 991, and cases cited.) It is also the well-settled rule that the words are to be construed according to their ordinary meaning and as it is believed they would be understood by those who read them, considered in the light of the connection in which they are used and the subject-matter of the article, and for that purpose the entire article in which they appear is to be looked to in determining whether or not they are libelous. Applying those rules to the case at bar, we think the language used in the published article fairly susceptible of a construction rendering it libelous, and that it would be so understood by the readers generally. The headlines are highly sensational, implying at least an unenviable state of affairs in the City of Sheridan. It then proceeds to propound to the Mayor certain interrogatories which by plain insinuations were well calculated to cause it to be suspected and believed that plaintiff was guilty of such misconduct in office as would naturally bring him into disrepute, and to degrade him in the estimation of the people. The first four questions imply that plaintiff had either misrepresented his official actions with reference to closing the Maple Leaf Club (which appears from other portions of — 197 — the article to have been a resort conducted by Toomer where liquor was sold, gambling permitted, and where Pierce lost his money), .or that he was not sincere in the conduct of the duties of his office or discharging those duties with fidelity. The fifth question we think would naturally be taken to mean that plaintiff was partial in the discharge of his official duties, and when read in connection with the sixth and seventh questions they imply that plaintiff was protecting Toomer in unlawful conduct while others had been banished, and that Toomer was being permitted by the plaintiff to sell liquor on Sunday in violation of the statutes of the state prohibiting such sales. If plaintiff was conducting the office in the manner indicated in the published article, we think nó one would contend 'that he was a fit person to fill the office of Mayor of a city and to have the' superintending control of all of its officers and affairs as his powers and duties are prescribed by the statute. (Sec. 1637, Comp. Stat. 1910.) It is further contended that the subject was a matter in which the public was interested and therefore privileged and the publishers protected by the provisions of our constitution which provides that every person may freely speak, write-and publish on all subjects, being responsible for the abuse of that right; and in all trials for libel, both civil and criminal, the truth, when published with good intent and for justifiable.ends, shall be a sufficient defense. But it is the truth when so published, and not falsehood, which is privileged. Here we are considering a pleading only, in which it is charged that the statements contained in the published article are false and were published maliciously. The true meaning of privilege and liberty of the press is well expressed in the case of Bee Publishing Co. v. Shields, 68 Neb. 750, 94 N. W. 1029, 99 N. W. 822, wherein the court said: “While the liberty of each is a sacred right dear to the hearts of an entire Anglo-Saxon civilization, yet the law-makers and framers of constitutions have all realized that liberty in the exercise of any natural right when unre — 198 — strained by law leads to licentiousness, and have therefore wisely provided that any one exercising the liberty of speech or press within this state shall be held responsible for an abuse of such privilege. It is unquestionably the right of the press to freely discuss, criticise or comment fairly upon the acts or omissions of a public officer of the county,, state or nation; but it is not permitted, under the guise of crit-icising official acts, to maliciously defame the character of an official.” And in Odgers on Libel and Slander (5th Ed.) 198, the following is quoted from Davis & Sons v. Shepstone, 55 L. J. P. C. 51: “There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.” Assuming, as we must do in ruling upon the demurrer, that the statements with respect to plaintiff’s official conduct were false and were published maliciously, they were not privileged. Considering the entire article as we believe it would be understood by readers generally, its meaning appears plainly to accuse plaintiff with such misconduct in office as to render him unfit for such position and to disgrace and degrade him in the estimation of all good citizens, and was therefore libelous. Whether the language of the publication is fairly susceptible of all of the libelous meanings attributed to it by the plaintiff in the innuendoes is a question to be submitted to the jury under proper instructions. (Bourreseau v. Evening Journal Co., 63 Mich. 425, 30 N. W. 376, 6 Am. St. Rep. 320.) We are of the opinion that the petition states a cause of action, and, that the court erred in sustaining the demurrer thereto. The judgment is reversed and the cause will be remanded — 199 — to the District Court with directions to vacate the judgment of dismissal and to overrule the demurrer. Reversed. Potter, C. J., and Scott, J., concur.