Adams v. Scott

SMITH, P. J. Action founded on an alleged libel published in defendant’s newspaper. The plaintiff, in paragraph 6 of the complaint, claims damages as follows: “(a) The reputation and good name of his said Grace hotel, $1,000. (b) Direct loss, in failure on the part of the public to patronize his said'Grace Hotel the same after the publication as before, in the sum of $2,000. (c) In direct less in value of his lease of the said property as a hotel, store, and restaurant, $1,000.” The trial -court on defendant’s motion, entered an -order requiring plaintiff to amend his complaint “so that said paragraph 6 shall state definitely, certainly, and particularly: (1) In w'hat manner the reputation and good name of the said Grace Hotel was damaged in the sum of $1,000. (2) The particular contracts, sales, employments, customers, or clients lost to- the said Grace Hotel by reason of the publication of the said article, and the time and .manner of the said loss. (3) The date of execution and date of expiration of the said lease and the names of the parties thereto, and a description of the property covered thereby, and the time and manner in which 'the value of said lease was damaged by said publication in the sum of $1,000.” Error is assigned in the -order requiring plaintiff to so amend his complaint. The amendment ordered goes no further than to require more specific allegations of damages. The article published, which is set out in198 full in the complaint, may be briefly summarized as charging that the plaintiff was then running a lodging house known as the “Grace Hotel.” “and, so far as the Journal knows, it is probably a fair sort of a place, but some people have made remarks about this hotel and the kind of place it was, and Mr. A'dams has gone around with a chip on his shoulder declaring he was going to whip any one who made remarks about his establishment. This does not shoxy very good judgment on his part, especially as a man who was sent to federal prison for five years for driving a girl insane with letters he wrote, was shown to have abused her at this hotel, undoubtedly without the knowledge of the proprietor, but it was done just the same.” By innuendo the, complaint charges that the article was intended to and did create the impression that said Grace Hotel was a place where girls were abused and gross misconduct and immorality tolerated. The article directly asserts that a certain man abused a girl at plaintiff’s said Grace Hotel, and was sent to federal prison for five years for driving 'her insane with letters he wrote. The allegation of the complaint is that these statements are false and malicious. [1] Section 29 of the Civil Code declares that defamation by libel is effected by a false and unprivileged publication by writing, printing, etc., which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. Under this statute, any printed publication which in itself falsely states or charges matters which have a, tendency to injure a person in his occupation or business is libelous. It is appellant’s contention that the language used in the alleged publication is actionable per se, under the statute, and that he is therefore entitled to recover general -damages, without pleading or proof of special damages. It is respondent’s contention that the language charged is not actionable per se, and that, unless the complaint properly pleads special damages, it states no cause of action. The statements made concerning transactions positively alleged to have occurred1 at the Grace Hotel are such as in their natural. and proximate consequences, we think, would occasion appellant some degree of pecuniary loss in his business as a respectable hotel and boarding- house keeper. [199] In Pratt v. Pioneer Press Co-., 35 Minn. 251, 28 N. W.'7o8, the court said: “When language is used concerning a person or his affairs which from its nature, necessarily must, or presumably will, as its natural and proximate consequence, occasion 'him pecuniary less, its publication prima facie -constitutes a cause of action, and prima facie constitutes a -wrong, without -any allegation or evidence of damage other than that which is implied -or presumed from the fact of publication; and this is all that is meant by the term ‘actionable per se’ therefore the real practical test by which to dete 'trine whether special damage must be alleged and proved, in order to make a cause of action for defamation, is whether the language is such as necessarily must, or naturally an-d presumably will, occasion pecuniary damage to the person of whom it is spoken.” [2] It is not necessary, in order to render a publication actionable per se, -that it should charge a crime or public offense. Barron v. Smith, 19 S. D. 50, 101 N. W. 1105; Ramharter v. Olson, 26 S. D. 499, 128 N. W. 806 ;Sherin v. Eastwood, 27 S. D. 312, 131 N. W. 287, Ann. Cas. 1913 D, 257; Stokes v. Stokes, 76 Hun. 314, 28 N. Y. Supp. 165. “Where the words are clearly actionable per se, it is only necessary to make a general claim for unliquidated damages. But any special damage that has accrued must in every case be -specifically stated, and with sufficient particularity to- enable the defendant to know precisely w'hat -case he has to meet; -otherwise such evidence will be rejected at the trial. * * * If the special damage be the loss of particular customers, as -distinct from a general diminution of income, the -customer’s names- -must be given, unless it is -clear from the circumstances that -plaintiff would not know their names. * * * Where a falling -off of income is alleged, figures must be given showrin-g the nature and extent of su-ch diminution of income.” Odgers on Libel and Slander (5th Ed.) 627. In Douglas v. Daisley, 114 Fed. 628, 52 C. C. A. 324, 57 L. R. A. 475, it is >said: “The general rule in libel and slander cases is aptly stated in Hamilton v. Walters, 4 U. C. Q. B. (O. S.) 24-27, that the -plaintiff ‘may state his case in either of two ways. He may- aver a -diminution of -business, in consequence of the slander, relying upon his ability to make that appear to a jury, or [200] he may aver a particular instance of damage, knowing that he can give evidence of loss in a specific case.’ ” [3] We think appellant is- correct in his contention that the alleged defamatory -matter sued up-on is actionable per se, and that, where the plaintiff claims only general -damages, he cannot be required to furnish a bill of -particulars showing elements of general damage, nor -can he be required to- furnish a bill of particulars •showing special damages where no special damages are claimed in the complaint. In Cruickshank v. Bennett, 30 Misc. Rep. 232, 62 N. Y. Supp. 118, Gaynor, J., says: “This motion seems to arise out of a misunderstanding of the law of -evidence and of pleading in respect of damage in actions of libel. A publication in writing which the law presumes must do damage is called a libel per se. No special damage need be alleged in the complaint or proved to- maintain an action thereon. An allegation of general damage to- reputation or to -business, -or -to both, suffices. Special -damage m-ay, however, be pleaded and proved in such an action, and recovered in addition to general dam-age. A publication in -writing, which the law will not presume must do dam-age, is not li'bel- unless it -does special damage; and an action -cannot be maintained- upon- it at all unless special damage is alleged in the complaint -and proved. General damage cannot -be recovered in s-uc-h an action, but only special damage, and, -if -the latter be not pleaded, no cause o-f action is stated. In order to -prove special damage in an action for either kind- of libel, it must be specifically alleged in -the complaint.” [4, 5] The court -also holds that where the defamatory matter is not libelous per -se, and there is no sufficient averment of special damages, the fault in the pleading sho-ul-d 'be attacked- by demurrer, o-n the ground- that no cause of action is stated, and not by motion for a bill o-f -particulars under -the -claim of -damages. But where the defamatory matter is libelous per se, and the plaintiff claims and pleads both general damages and special damages such as would sustain a recovery, as he has a right to. do, we s-ee no-reason- why -defendant m-ay not demand -a bill of particulars as to the special damages, rather than to rely wholly upon his -right to object to evidence of special damage at .the trial.. Respondent apparently has chosen this course, and has demanded a 'bill of par [201] ticulars, of what he alleges to 'be special damages claimed in the complaint. [6] We think the trial court was in error in requiring appellant to state “definitely, certainly, and particularly” in what manner the reputation and good name of the said Grace Hotel was damaged in the sum of $1,000. Stokes v. Stokes, supra; Loscher v. Hager, 124 App. Div. 568, 109 N. Y. Supp. 562. [7] A¥e think the court also erred in requiring appellant to state “the particular contracts, sales, employments, customers, or clients lost to the said Grace Hotel ,by reason of the publication of the said article and the time and manner of said loss.” If plaintiff’s allegation of “direct loss in failure 011 the part of the public to patronize his said Grace Hotel the same after the publication as before” be deemed an allegation of special damage, which we do not find it necessary to decide, no further particulars could be required, unless it might be a statement of the income of the business before and after the publication alleged. The plaintiff •does not attempt to plead damages in the loss of "particular contracts, sales, employments, or customers or clients,” and the defendant therefore had no right to demand specifications of any such particulars. [8] AA^e are of the opinion, however, that the allegation of “direct loss in value, of his lease on the said property as a hotel, store, -and restaurant,” in the third paragraph, is a claim of special damage and that a statement of the 'date of execution and date of expiration of the said lease, and the names of the parties thereto and a description of the property covered thereby, was properly required. That part of the same paragraph which requires a specification of “the time and manner in which the value of said lease was damaged by said publication” should be eliminated. The order of the trial court is modified by striking out the first and second paragraphs thereof, and the -portion of the third paragraph above indicated, and, as thus modified, the order of the trial court is affirmed. . Costs to be taxed in favor of appellant.