Woolley v. Plaindealer Publishing Co.

Mr. Justice Moore delivered the opinion of the court. It is contended by plaintiff’s counsel that the article set out in the complaint is prima facie actionable, and, this being so, the court erred in submitting to the jury the question whether or not the language was susceptible to such construction and in not charging that it was libelous per se. Defendants’ counsel deny the legal propositions so asserted, and maintain that the complaint fails to state facts sufficient to constitute a cause of action, and that, as the judgment was in favor of their clients, no alleged error of the court in the trial of the cause can be considered. — 624 — An examination of the complaint will show that no innu-endoes are adopted to explain the meaning of doubtful words used in the language set out, and assuming, without-deciding, that some of the terms so employed are of obscure import and not in such general use as readily to be comprehended, the complaint will be scrutinized to discover whether or not it states facts sufficient to constitute a cause of action. ' As the solution of the principles maintained by the respective parties depends, however, upon the determination whether or not, by eliminating as sur-plusage the clauses containing the ambiguous words, the remaining language complained of is actionable, the questions severally presented will be treated in the order stated. 1. Printed words are libelous per se when they maliciously impute to a person the commission of a crime which is liable to punishment either at common law or by statute: 18 Am. & Eng. Enc. Law (2 ed.), 868. 2 Current Law, 714; Upton v. Hume, 24 Or. 420 (33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863); McAllister v. Detroit Free Press Co., 76 Mich. 338 (43 N. W. 431, 15 Am. St. Rep. 318); Belo v. Fuller, 84 Tex. 450 (19 S. W. 616, 31 Am. St. Rep. 75); Childers v. San Jose Mercury Co., 105 Cal. 284 (38 Pac. 903, 45 Am. St. Rep. 40). 2. Our statute, emphasizing the rule of public policy that a person cannot in the same transaction be a vendor and a purchaser, contains the following provision relating-to an officer of a school district, to wit: “It shall be illegal for any director, either directly or indirectly, to have any pecuniary interest in the erection of schoolhouses, or for the warming, ventilating, furnishing, or repairing the same.” B. & C. Comp. § 3389, subd. 19. When this section was adopted, the following provision as a part of the same statute was enacted, to wit: “Any member of any school district board * * who-shall violate any of the provisions of this act shall be — 625 — deemed guilty of a misdemeanor, 'and upon conviction shall be punished by a fine not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment in the county jail not less than six months, or both such fine and imprisonment”: B. & C. Comp. § 3391. • It will be remembered that the printed matter set out in the complaint contains the following clause: “It is Woolley who lets contracts for school buildings, supplies the hardware, paints, roofing and the poorest goods for the highest prices; grants a $4,000 extra bill; accepts or rejects the work at pleasure, thus compelling the contractor to submit to high prices for inferior wares or invite trouble in having his work accepted. It was at this man’s dictation that an expensive, out of date hot air heating apparatus was installed in the high school building. But then he had an opportunity to sell the district an expensive gasoline engine at a big profit, which costs more to operate than would be required to heat the entire building with a modern plant, but there would not have been any rake-off on this kind of a plant for the high mogul.” It is not directly stated in this excerpt to whom the “hardware, paints, roofing and the poorest goods for the highest prices” were supplied by plaintiff, but when it is asserted that he “accepts or rejects the work at pleasure, thus compelling the contractor to submit to high prices for inferior wares or invite trouble in having his work accepted,” it reasonably appears, when the printed article is considered in its entirety, that plaintiff is charged with having made such sales to the person who had a contract for the construction of the high school building, thereby imputing that Woolley had an indirect pecuniary interest in the erection of a schoolhouse in the City of Roseburg of which he was a school director. So, too, the charge that at plaintiff’s command a hot air circulating apparatus was placed in the high school building, whereby “he had an — 626 — opportunity to sell the district an expensive gasoline engine at a big profit, which costs more to operate than would be required to heat the entire building with a modern plant,” imputes to him a direct pecuniary interest in the warming of a schoolhouse in that school district. These separate charges ascribe to plaintiff a violation of his duty as a school director (B. & C. Comp. § 3389, subd. 19), a breach of which is a statutory misdemeanor, and, for a conviction thereof, a fine or an imprisonment or both may be imposed: B. & C. Comp. § 3391. It will thus be seen that the language adverted to is libelous per se. 3. This brings us to a consideration of the second question, which does not appear to have been raise'd at the trial, but, as necessary averments are a prerequisite to securing jurisdiction of the subject-matter, the challenge on that ground is never waived : B. & C. Comp. § 72. 4. It is unnecessary, in an action for libel, to state in the complaint any extrinsic facts to show the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it is adequate to aver generally that the calumnious article was published concerning the plaintiff: B. & C. Comp. § 91. In commenting upon a similar statute of New York, a text-writer says : “ Where the language published is not defamatory on its face, and becomes so only by reference to extrinsic facts, the existence of those facts must "be alleged in the complaint”: Townsend, Slander & Libel (4 ed.), § 310. “ The innuendo may always be rejected,” says this author, “ when it merely introduces matter not necessary to support the action”: Townsend, Slander & Libel (4 ed.), § 344. If the words printed clearly impute to a plaintiff in an action for libel the commission of a crime at common law or by statute, they are actionable, and no extrinsic facts need be alleged : Worth v. Butler, 7 Blackf. 251; Filber v. Dautermann, 26 Wis. 518; Langton v. Hagerty, 35 Wis. 150. In the case — 627 — at bar that part of the printed language last quoted having imputed to plaintiff the commission of a statutory ■crime, is libelous per se, and this being so, the other parts of the article could have been omitted, and it was unnecessary to adopt innuendos to explain the meaning therein of the words of doubtful import. The objection interposed to the complaint is tantamount to a demurrer thereto, based on the ground insisted upon, and, as a part of the language used is adequate to sustain the action, and the import thereof is not qualified or modified by the entire printed article, the pleading is sufficient. 5. The publication of the defamatory matter, not having been denied, is admitted, and, being actionable, the court should have so charged : Pittock v. O’Neill, 63 Pa. 253 (3 Am. Rep. 544); Pugh v. McCarty, 44 Ga. 383 ; Gabe v. McGinnis, 68 Ind. 538; Gregory v. Atkins, 42 Vt. 237. Instead of doing so, however, the court, in addressing the jury and referring to the defendants, said : “ If you should find under the instructions I shall give you that the article was libelous, then, under the evidence in this case, they would be responsible for it.” An exception having been taken to this part of the charge, the error committed necessitates a reversal of the judgment, which is hereby- ordered. 6. In view of the conclusion we have reached, it is ■deemed proper to consider another assignment of alleged error. The court, over objection and exception, permitted the defendant to introduce in evidence certain bills for goods, amounting to $392.39, furnished to School District No. 4, Douglas County, by the firm of which plaintiff was a member. The plaintiff, as a school director, was prohibited by the common law from purchasing from himself, as a hardware dealer, any.goods that the.school district might need, and though our statute (B. & C. Comp. § 3389, subd. 19) might, by implication, seem to justify — 628 — such sales,-when the articles furnished were not intended to be used “in the erection of schoolhousesor for the warming, ventilating, furnishing, or repairing the same,” the rule, when invoked, should be inflexible that, to avoid the-appearance of favoritism in the discharge of a public duty,, every attempted sale made by a person to himself as an officer should be avoided if possible. The bills in question were admissible in evidence in mitigation of damages,, and as tending to corroborate the printed accusation. No-other alleged error is deemed material. For the giving of the instruction complained of the-cause is remanded for a new trial. Reversed.