Penry v. Dozier

MAYFIELD, J. This is an action of libel and slander brought by appellant against appellee. The original complaint consisted of nine counts — the first, in libel, being predicated upon a letter written by the defendant to one W. S. Randall, of Marion Junction; the second, in libel, predicated upon a letter written by the defendant to- the plaintiff; the third, in slander, charging that the plaintiff is a thief, thereby meaning that he had stolen a chicken; the fourth, in slander, charging plaintiff with false pretense, in that he had returned the wrong chicken to the defendant, that plaintiff had made affidavit to the chicken, and that plaintiff knew he was lying when he made the affidavit; the fifth, in slander, charging plaintiff with false representations by charging that defendant had sold plaintiff “a nice — 297 — yellow-legged Plymouth Rock Cockerel” and the defendant had “returned him a mongrel,” and wanted him to pay for it; the sixth, in libel-, based upon a letter written by defendant to plaintiff, the same letter relied upon in count two; the seventh, in libel, based upon a letter written by the defendant to W. S. Randall, the same letter as relied on in count one; the eighth, in slander, charging plaintiff with being a thief; the ninth, in slander, charging plaintiff with larceny, that he was a thief and had stolen a chicken. Demurrers were filed by the defendant, and sustained by the court, to counts 1, 2, 4, 5, 6, 7, and 8, and so filed and overruled as to counts 3 and 9. The counts to which demurrers were sustained were amended, to which as amended demurrers were refiled, and were sustained as to counts 1, 2, 4, 5, 6, 7, and 8. The plaintiff then amended counts 2 and 6, to which counts as amended demurrers were refiled, whereupon the defendant demurred to each and all of the nine counts as finally amended, and, this demurrer to each of the counts was overruled. The defendant, for answer to each count severally and separately, says that he is' not guilty of the matters alleged therein; that is to say, from the last judgment entry it appears that issue was joined upon the plea of not guitly as to each of the counts as finally amended. It thus appears from the judgment entry, which, on appeal, is the sole expositor of rulings upon pleadings, that there is an inconsistency, or rather a change, in a ruling by the court as to the sufficiency of some of the counts as finally amended; that is to say, there is one judgment entry showing that demurrers were sustained to counts 1, 2, 4, 5, 6, 7, and 8 as amended, and there was no attempt to amend any of these counts thereafter, except counts 2 and 6, which were subsequently amended. After the final amendment of these two counts, demurrers were filed to each count of — 298 — the complaint as finally amended, assigning the same grounds of demurrer theretofore assigned' to each of the counts, and by a subsequent judgment entry it appears that these demurrers last filed to each count of the complaint as finally amended were overruled, and that the defendant pleaded the general issue to each count of the complaint as finally amended. While it appears from the oral charge of the court and from other parts of the record that the trial was had only upon the general issue to counts 2, 3, 6, and 9 as finally amended, yet the judgment entry shows that issue was joined upon a plea of not guilty to each of the counts as finally amended. Consequently on this appeal we cannot review the rulings of the court upon the demurrer to any count of the complaint as finally amended, for the all-sufficient reason that the judgment entry shows that the last ruling of the court as to each of such counts as finally amended was in favor of the appellant, and, if the former ruling of the court upon any of the counts as amended was detrimental to the plaintiff’s rights, it was cured by the subsequent ruling, which overruled the demurrer as to each of the counts finally amended. — B’ham Ry. Co. v. James, 138 Ala. 594, 36 South. 464. While, as we have said, there is a conflict between the recitals in the bill of exceptions and the judgment entry, the recitals in the judgment entry must prevail as to the rulings upon demurrer. — 5 Mayfield’s Digest, p. 103, § 56. But we may and will review the rulings upon the demurrers adverse to plaintiff which were not cured by the final judgment entry which overruled the demurrers to each count as finally amended. Therefore the demurrers to these counts which were sustained prior to the time they were finally amended will be reviewed. Actions of libel and slander are sui juris. In the early ages, the jurisdiction as to actions of libel and slander — 299 — was confined exclusively to ecclesiastical tribunals, but later the common-law courts encroached on these actions and acquired jurisdiction. In this condition the actions were transplanted in America, and they exist in all of the United States to-day; the action and remedy being changed, in the various states by constitutional and statutory provisions. In this state we have various constitutional and statutory provisions relating to these actions, most of which it is unnecessary here to consider further than will be hereafter mentioned. Our Code contains provisions regulating these two actions, and that of defamation. See chapter 73, §§ 3745-3753, Code 1907. The Code also contains a form for each of the actions of libel and slander. See forms 16, 17, p. 1197, vol. 2, Code 1907. By statute these forms are made sufficient. They first appeared in the Code of 1852 (pages 554-555), and are now substantially as they appeared in that Code, and since the adoption of that Code have been held sufficient. Section 5323 of the present Code of 1907, which was 2229 of -the Code of 1852, dispenses with colloquium or innuendo in actions for defamation, and provides that the “complaint is sufficient if it states the defendant falsely and maliciously charged the plaintiff Avith perjury, larceny, or other crime, as the case may be, in substance as follows” (setting it out). It is therefore only necessary that the count of the complaint should conform to these statutory requirements in order to he sufficient in actions of libel or slander. The sufficiency of complaints has been several times tested by this court since the enactment of these statutory provisions, and it has been held that, Avhen the words complained of in libel or slander import or impute a crime, then the complaint may he very simple and brief, but, if the Avords used are susceptible of different meanings, some of which are li — 300 — belous or slanderous, and others innocent, or it they are ambiguous or uncertain, or if uttered ironically, then the complaint must set forth enough antecedent or attendant faéts to raise the implication that the offense charged was intended. Merely asserting in the complaint that the defendant intended to charge a certain crime is not enough unless the unaided words import that he did. If the words used do not import or impute a crime, they may be attended in the complaint with others, called inducements, occasions, colloquiums, and innuendoes, such as to make the complaint sufficient which would be otherwise insufficient. As Judge Stone says, these give point and direction to what otherwise would seem innocuous. — Long v. Musgrove, 75 Ala. 158. An inducement is a statement of facts out of which the charge arises, or which is necessary or useful to make the charge intelligible. In other words, it is intended to state facts by reference to which the libel or slander is rendered intelligible and is shown to contain an injurious imputation. A colloquium only serves to show that the words were spoken in reference to the matter of the averment. An innuendo is only explanatory of the subject matter sufficiently expressed before, and is and can be explanatory only of such matter. It cannot extend the sense of the words beyond their own meaning unless something is put upon the record for -it to explain. — Van Vechten v. Hopkins, 5 Johns. (N. Y.) 220, 4 Am. Dec. 339. An innuendo cannot make a thing certain which is, in fact, uncertain. An innuendo cannot enlarge or restrict the natural meaning of words, nor can it introduce new matter. An innuendo cannot be proved, and it is for the court to decide whether given words or given publications are capable of the meaning ascribed to them by the innuendo, and for the jury to decide whether such meaning is truly ascribed to them.— — 301 — Gaither v. Advertiser Co., 102 Ala. 458, 14 South. 788; Wofford v. Meeks, 129 Ala. 349, 30 South. 625, 55 L. R. A. 214, 87 Am. St. Rep. 66 ;Henderson v. Hale, 19 Ala. 154; 25 Cyc. p. 449. Where words claimed to be defamatory are capable of conveying an innocent meaning, then there must be an averment and an innuendo showing, not only that the words were intended by plaintiff in a defamatory sense, but that the hearers may have understood the language as conveying the alleged defamatory meaning. — Smith v. Gaffard, 33 Ala. 168. But if the words are unequivocally actionable per se — that is, charging a crime — then an innuendo will he treated as mere surplusage. 25 Cyc. p. 452. Allegation and proof of the publication of thq alleged defamatory words are essential to the maintenance of the action for libel or slander. There must be a communication to some person other than the plaintiff and defendant. It is not necessary that it be made known to the public generally. It is enough if made known to a single person other than the plaintiff or defendant, but the writing of a letter by a defendant to the plaintiff and sending the same through the mail, directed to the plaintiff only, standing alone, is not sufficient to show publication. — Roberts v. English Mfg. Co., 155 Ala. 414, 46 South. 752; Weir v. Hoss, 6 Ala. 881; 25 Cyc. p. 365 et seq. It is sufficient if the complaint shows that the defamatory matter was communicated to others tha{u the plaintiff or defendant by or through the agency of', the defendant, and it is not necessary that the particular circumstances of the publication should be alleged. The name of the person or persons to whom the communication or publication was made need not be given, and the word “published” imports that the words were spoken in the presence of some third person. The complaint should allege with exactness the time when and the place where — 302 — the publication was made, unless the statute otherwise provides. — 25 Cyc. p. 446; Ware v. Cartledge, 24 Ala. 622, 60 Am. Dec. 489. This rule is probably changed in this state because of the form prescribed by the Code. Hence a count which substantially conforms to the Code requirements in this state would be sufficient. We will apply these rules of law to the complaint. We do not think that counts Nos. 1 and 7, as originally filed or as amended, state any cause of action. They are based exclusively upon an alleged libelous letter written by the defendant to W. S-. Randall on February 15, 1907, which letter is set out in the complaint, but this is certainly not libelous per se, nor is it attended with any averments, colloquiums, or innuendoes which could make it sufficient without additional allegation of special damages, as to which there is no attempt in either count. It is seriously contended by counsel for appellant that the phrase used in such letter. “However, he has acted in such a way I do not care to soil my hands any further with him,” is libelous per se; that it tended to degrade the plaintiff, or to bring him into contempt or ridicule. While such language may be offensive and might be insulting, it charges no crime and could not reasonably be construed, standing alone, or accompanied by nothing further than appears in the letter or in the other counts, to charge a crime, or to tend to degrade or bring the plaintiff into contempt or ridicule. A mere allegation in the complaint that it was intended to charge a crime or to degrade or bring the plaintiff into contempt or ridicule cannot be sufficient. Such are merely gratuitous conclusions of the pleader, and cannot be taken to give the words a meaning which they did not otherwise have. One cannot make a thing libelous that is not in fact libelous by merely adding an innuendo. — Wofford v. Meeks, 129 Ala. 355, 30 South. — 303 — 625, 55 L. R. A. 214, 87 Am. St. Rep. 66, and authorities there cited. While we do not decide that a count for libel and slander could not be based on this letter for the reason that it is not necessary, it is difficult to see how it could be done; but it is certain there is nothing in any count of this complaint or in all together which shows that anything contained in that letter would amount to a libel or slander. As to counts 2 and 6, which attempt to charge libel and which are based upon a letter written by the defendant to plaintiff on February 15,1907, in reply to a letter of the plaintiff to the defendant of same date, this letter or the matters contained therein do embrace words that are libelous and slanderous when spoken or published of another to a third-party. Hence, these two counts, 2 and 6, if they had alleged a publication of this letter, would have been sufficient; but the counts as originally filed had no allegation of publication other than the writing of the letter by the defendants. Therefore these original counts were defective in failing to allege a publication. To these counts, 2' and 6, an amendment was first added, which in effect, cured the defect as to publication by alleging that the letter was published. The amendment struck out the words “written to plaintiff,” and inserted in lieu thereof the words, “which the dependant wrote and showed to divers persons at Marion, Ala.,” and also inserted the figures “15” in the blank preceding the word “day.” To these counts as amended demurrer was interposed and was sustained. As to this the trial court was in error. It is true that the two counts were subsequently amended by striking out the word “wrote” and inserting in lieu thereof the word “published,” and by striking out the phrase, “and showed to divers persons,” and inserting in lieu thereof, immediately after the words, “at Marion, Ala.” the words, — 304 — “by showing said letter to divers persons, to-wit, A. T. Haley, W. W. Corley, and Robert Redding,” and to those counts as last amended the demurrer which was interposed was overruled. The two rulings of the court we think are inconsistent, because there is no substantial difference between the complaint as first amended and as last amended. The complaint as last amended would have supported a judgment for the plaintiff under proof which established or tended to establish the complaint as first amended. The fact that the complaint as last amended alleged that the letter was shown to divers persons, to-wit, A. T. Haley, W. W. Corley, and Robert Redding, would not have confined him to proof as to these persons only, but it would and could have been supported by proof that the letter was read by or read to any other person. This is to say, the allegation that it was shown to or read to these three persons named was surplusage, and could not be required to be proven, but proof that the. letter was read by or to any other party than the defendant or plaintiff would have been sufficient. This court does not and cannot know whether the trial judge changed his opinion between the time he ruled upon counts 2 and 6 as first amended and the time at which he ruled upon the counts as last amend-er, or whether he thought the counts were good as last amended and bad as first amended, but it is wholly immaterial as to whether the trial court changed his opinion or not — the result was the same in either case, and, the demurrer being overruled to the counts as last amended, no injury could have resulted to the plaintiff from sustaining the demurrer to the counts as first amended, for the reason that the same proof which would support a conviction under the one would support it under the other. No different, no more, nor no less, is required under the one than under the other. — 305 — The last amendment being surplusage, it was not necessary to prove it. It is unnecessary to consider counts Nos. 3 and 9 for the rulings thereon are in favor of the plaintiff. Count No. 4 is wholly defective. It is an attempt at a count of slander, and alleges that the defendant falsely charged the plaintiff with false pretenses, and then sets out the alleged language by which the false pretenses are said to have been charged, but no one of the alleged false statements nor all together constitute the crime or offense of false pretenses or any element thereof, nor does any or all of the alleged slanderous words justify or support a colloquium or innuendo, and, it alleging no special damages, we do not see how it could he sufficient as a count of slander. Count No. 5 is more clearly and palpably bad than count No. 4, for the same reasons assigned to count No. 4, and consequently there could be no error in sustaining the demurrer to either one of these counts. Count No. 8 we think is sufficient to charge slander. While the authorities are not uniform as to whether or not falsely charging the plaintiff with being a thief or of being a liar or of lying without specifically charging larceny or perjury and without sufficient inducements, colloquiums, or innuendoes to show that it was intended thereby to charge an indictable crime, yet we think the better rule is that such charges if false and malicious are objectionable without more. See Brooker v. Coffin, 5 Johns. (N. Y.) 188, 4 Am. Dec. 337, which holds and cites all the cases deciding that such words are actionable, and Little v. Barlow, 26 Ga. 423, 71 Am. Dec. 219, Commons v. Walters, 1 Port. 377, 27 Am. Dec. 635; 25 Cyc. 300, and notes therein, which hold the contrary —which latter we follow. See, also, Trimble v. Anderson, 79 Ala. 514. But, if there was error in sustaining — 306 — demurrer to count No. 8, it was without injury, for the reason that the demurrer was overruled as to counts 3 and 9, which are in substance the same as count No. 8, and with counts Nos. 3 and 9 in the complaint there could be no injury in sustaining demurrer to count No. 8, for the reason that all are in effect the same. The plaintiff was accorded .all th.e benefits which he could have acquired under the eighth count. — Gaines v. Va. Co., 124 Ala. 394, 27 South. 477; L. & N. R. R. Co. v. York, 128 Ala. 305, 30 South. 676; Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440; First Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 113 Am. St. Rep. 39; Martin v. Butler, 111 Ala. 422, 20 South. 352. Count No. 8 alleged that the defendant falsely and maliciously charged the plaintiff with being a thief by saying of him that “he is a thief,” and count No. 9 alleged that the defendant falsely and maliciously charged plaintiff with larceny by speaking or saying of him that “he is a thief and had stolen a chicken,” and the third count alleged that the defendant charged the plaintiff with larceny by saying of him that “he is a thief,” that “he (meaning plaintiff) had stolen a chicken.” The same proof required under count 8 would have supported a verdict under count No. 9. While it is alleged in count No. 9, in addition to what is alleged in count No. 8, “that he had stolen a chicken,” the plaintiff would not be required to prove both of these conjunctive averments. Saying either that he was a thief or that he had stolen a chicken would import larceny, and proof of either would support a judgment for plaintiff under the ninth count. In actions of libel and slander, the plaintiff is not required to prove the whole of the alleged libel or slander, but proof of any part which is sufficient alone to support the action would be sufficient under the complaint or count alleging two ot more. — Scott v. Mc307 Kinnish, 15 Ala. 662; Chandler v. Holloway, 4 Port. 17; 25 Cyc. p. 484. Consequently there could he no injury resulting to the plaintiff in sustaining demurrer to this count. Proof necessary to support a verdict under count No. 8 would have supported a verdict under counts 3 or 9. While the language is not the same in any one of these three counts, 3, 8, and 9, the material averments are the same, and proof which would support a verdict under any one would support a verdict under the others. We have examined carefully each objection made by the plaintiff to the evidence and each assignment of error based thereon, and we find no error which could have been injurious to the plaintiff. The court sustained an objection to the question propounded to the plaintiff: “Have you or not suffered much?” This was not error, but, if it was, it was clearly without injury, because the witness subsequently answered, “Why, yes; I suffered mentally after receiving that letter. Yes; my suffering mentally has been great about this matter. This suffering has not affected me in my business, and has not affected my health to any great extent.” It therefore affirmatively appears that the question was subsequently answered fully, which cured the error in sustaining the objection to the question. The court also sustained an objection to the following question: “Has or not the charge made by the defendant affected your business?” This might be error but for the fact that it appears that the witness had just previously answered the identical question by stating that he was in the business of raising high-class chickens for market, and had established a trade for his chickens, and that the charge had not affected his health or business. It is certainly within the legitimate discretion of the court to permit a witness to be asked the same question twice or more, but his refusal to permit it cannot be reversible error. — 308 — It is also assigned as error that the court overruled an objection of the plaintiff to the question propounded to him by the defendant on cross-examination as follows: “What was stated in that letter is true, is it not?” We can see no possible objection to this question on cross-examination of the witness. The witness had examined the letter which he himself had written, and the contents of which he testified that he knew. It was competent to test his memory, and it only called for a fact which it appeared was in the knowledge of the witness. It is also assigned as error that the court allowed to be introduced in evidence copies of certain letters which are set out in the transcript and mentioned in the assignment. It is insisted that this was error because the originals were the best evidence. It is true that the originals were the best evidence, but it appeared that they were in the possession of the plaintiff because they were letters written to him and which were shown to have been received by him, and he testified that they were true copies of the originals received by him. The defendant offering the copies and the plaintiff admitting that they were true copies, it certainly could not be error or injury to allow the copies to be introduced if the copies were correct copies of the original, and as to this we have the plaintiff’s own testimony. There could be no injury in introducing the copy instead of the original. Assignments of error 21-24 go to the refusal of the court to give certain written charges requested by the plaintiff. ' Charge No. 1, which was requested by the plaintiff, was properly refused, because it is not certain as to the statements and propositions involved therein. It is therefore uncertain and calculated to mislead the jury, and for the further reason that the charge is argumentative. — 309 — There was no error in the refusal to give charge No. 2, because it is abstract; It is predicted upon a plea of justification not being proven, while the record affirmaticely shows that there was no plea of justification, but only a plea of the general issue was filed. Charge No. 3 was, in effect, the general affirmative charge for the plaintiff, and the bill of exceptions not purporting to set out all of the evidence we cannot know whether such charge was proper or improper. Charge No. 4, abstractly considered, intended probably to state a correct proposition of law, but it was correctly and properly refused, by the court in this case for two very sufficient reasons. Some of the charges alleged to have been made by the defendant against the plaintiff would not be presumed to be false until they were proved, while others might. The charge is therefore too general, and it includes all the charges — those that would be presumed to be false as well as those that would not be so presumed. The charge was also argumentative. Some of the alleged charges made by the defendant against the plaintiff were alleged by the plaintiff to be false. After alleging that they were false, he thereby assumed the burden of proving them • to be false. While there are errors in -this record which we have pointed out, it affirmatively appears that in them there was and could be no injury to the plaintiff. And, where it affirmatively appears that no injury did or could result from an erroneous ruling of the court, such erroneous ruling cannot and should not be. available to reverse and remand. This is a doctrine well established, and rightly established, in this state. It is so well and thoroughly established that it has been extended to criminal cases by statute. See section 6254, Cr. Code 1907; also 3 Mayfield’s Digest, p. 396; volume — 310 — 5, 355, subject, “Error Without Injury,” which collect many of the authorities. — See, also, First Nat. Bank v. Chandler, 144 Ala. 286, 39 South. 822, 113 Am. St. Rep. 39 ;Taylor v. Corley, 113 Ala. 580, 21 South. 404; Smith v. Heineman, 118 Ala. 195, 24 South. 364 72 Am. St. Rep. 150; Booth v. Dexter Co., 118 Ala. 369, 24 South. 405; Farley Bank v. Henderson, 118 Ala. 441, 24 South. 428; Woodward Iron Co. v. Andrews, 114 Ala. 243, 21 South. 440. The case is affirmed. Dowdell, C. J., and Simpson and Denson, JJ., concur.