Lemmer v. "Tribune"

MR. JUSTICE SANNER delivered the opinion of the court. Action for libel. The complaint is in two counts. The first count charges that on December 24, 1913, in the Great Falls “Tribune,” the defendants published of and concerning the plaintiff the following false and unprivileged matter, to-wit: “Some months ago there was quite a sensation sprung in this city when Frank Lemmer, a taxidermist, died from an overdose of morphine which he had secured at a drug-store on the prescription of a local doctor whom it was claimed had written the prescription for $1 when asked for it by a man who was an entire stranger to him. The man who got the prescription was also a stranger to Lemmer and went'to the doctor at Lemmer’s request”; that by such publication the defendants meant that the plaintiff “was and had been addicted to the use of ‘dope’ (morphine), ’ ’ had died from an overdose thereof and had purchased it clandestinely; that by such publication plaintiff “has [563] been exposed to hatred, contempt, ridicule and obloquy and has been injured in his occupation; * * * has suffered and will continue to suffer great mental anguish, great humiliation, shame and disgrace, and loss to his business, all to plaintiff’s damage in the sum of $25,000.” The second count alleges the same publication without any innuendo; pleads that he is a taxidermist by occupation, maintaining a store and factory at Great Falls; that his principal source of income as a taxidermist is derived from points outside of Great Falls and in territory where the "Tribune” enjoys a wide circulation; that his business is such that he is engaged because of his personal attention and ability therein, and depends largely upon his good reputation; that he has resided in Montana many years and has a large circle of friends and business acquaintances; that the publication was willful and malicious and has exposed him to the hatred, contempt and ridicule of his friends, acquaintances and business associates, and has caused him to be shunned and avoided, and has injured him in his business, to his damage in the sum of $25,000. The defendants demurred both generally and specially. The demurrer was sustained. The plaintiff, declining to plead further, suffered judgment of dismissal with costs. This appeal is from the judgment. We are at a loss to understand the plaintiff’s tactics in this case. Upon the bare chance that the trial court might be found in error in sustaining the demurrer, and without any necessity for so doing, he obstinately stands upon a complaint which, to say the least, was not in form most advantageous to him. We say without necessity, for, judging from his brief as filed in tin's court, he had a cause of action capable of being clearly and effectively stated. Our functions, however, are now limited to a determination whether there was error in sustaining the demurrer, and this we proceed to do. It is an elementary rule of pleading in actions for libel that the plaintiff must recover, if at all, for the publication of the [1] particular matter referred to in the complaint. (25 Cyc. [564] 447; 13 Ency. Pl. & Pr. 45.) Other actionable words not pleaded, though published at the same time, cannot be made the basis of recovery. (Rundell v. Butler, 7 Barb. (N. Y.) 260; Gray v. Nellis, 6 How. Pr. (N. Y.) 290; Howard v. Sexton, 4 N. Y. 157; Harris v. Zanone, 93 Cal. 59, 28 Pac. 845; Pollard v. Lyon, 1 McArth. (D. C.) 296.) In the first count of the [2] complaint, the damages claimed are general, not special. To state a cause of action for such damages, the language complained of must be libelous per se, and to be libelous per se the language must be such as, without the aid of innuendo, imputes to the aggrieved party the commission of a crime or necessarily exposes him to hatred, contempt, ridicule or obloquy. (Brown v. Independent Pub. Co., 48 Mont. 374, 138 Pac. 258; Cooper v. Romney, 49 Mont. 119, 141 Pac. 289.) The necessary [3] infer-enees from the words in question are, that Frank Lemmer died; that he died from an overdose of morphine; that the morphine was procured on a doctor’s prescription, which prescription was obtained at Lemmer’s instance by a stranger. None of these circumstances, nor all of them taken together, necessarily suggest anything criminal or disgraceful. It is no dishonor to die, and one may die without moral turpitude from an overdose of morphine procured on a doctor’s prescription, even though a stranger acted as the messenger in the transaction. The second count is an attempt to plead special damages on [4] account of loss to plaintiff in his business. Speaking generally, there is no ‘doubt that one may suffer such damages from almost any publication whatever, particularly a publication to the effect that he is dead; hut whenever such damages are sought, it is not enough to aver generally that in consequence of the publication the plaintiff has been damaged in his business; the facts showing such damages must be alleged or no cause of action is stated. (Ledlie v. Wallen, 17 Mont. 150, 42 Pac. 289; Brown v. Independent Pub. Co., supra; Walker v. Tribune Co., 29 Fed. 827.) No such facts are made to appear in the second count. [565] It follows that the demurrer to the complaint was properly sustained. The plaintiff’s refusal to plead further justified the judgment appealed from, and the same is therefore affirmed. Affirmed. Me. Chief Justice Beantly and Me. 'Justice Holloway concur.