Empire Cream Separator Co. v. De Laval Dairy Supply Co.

— 209 — The opinion of the court was delivered by Eeed, J. It is perceived that the innuendo declares that the meaning of the defendant in publishing the alleged defamatory words was that the plaintiff, believing its machines to be defective, fraudulently induced its agents and dealers to buy them upon the false representation that they were of proper construction, and that the plaintiff fraudulently concealed from its agents and dealers that it was about to abandon the manufacture of these machines and substitute another type of machine. The purport of this innuendo is that the plaintiff lied to its agents and purchasers for the purpose of unloading upon them inferior machines. It cannot be denied that the written publication of a charge .of this kind is libelous per se. If, 'therefore, the count is within section 106 of the act of 1903 (Pamph,. L., p. 568) it contains a charge of libel. This section permits the plaintiff to aver that the words were used in a defamatory sense, specifying such defamatory sense, without a prefatory averment to show how such words were used in that sense. The counsel for the demurrant, however, insists that the < words actually published are not in themselves libelous; and that the pleader has not availed himself of the privilege conferred by section 106 by averring that the words were used in a defamatory sense, specifying such sense. This view is not tenable. The purpose of the statute is pointed out in the case of Hand v. Winton, 9 Vroom, 122. It was to enable the pleader to impute any meaning he desired to the published words. Such meaning can be challenged only by denial of the libel. Upon demurrer to the declaration the imputed meaning of the words complained of is admitted by the demurrant. The pleader in the present case charged that the defendant . published a certain defamatory libel, setting it out. He then charges that defendant meant by such words to charge that the plaintiff had been guilty of such, conduct as, if falsely charged and published in writing, would be libelous. It would be hypercritical to say that a charge that certain — 210 — words were used in a defamatory sense was within the statute, and a charge that certain words were published by the defendant, by which he meant to charge certain words which were libelous, was aside from the statute. In both instances the words, as interpreted by the pleader, are charged to be defamatory- — that is, used in a defamatory specified sense, and the sense is specified. Indeed, upon examining the case of Feder v. Herrick, 14 Vroom 24, the declaration charged that the defendant did publish a certain defamatory and libelous matter, setting out the matter and the meaning thereof, without otherwise charging that the matter was used in a defamatory sense. On demurrer the declaration was held sufficient. It is also observed in this ease that the meaning attributed to the alleged defamatory article is to charge personal misconduct, and not merely a slander of the character of the plaintiff’s goods. We think, therefore, the count charging the libelous publication is libelous per se, and-requires no statement of special damages to support the action. In regard to the ground taken by the demurrer that the publication was privileged because made to its own employes, and that there was no charge of express malice on the part of the defendant in uttering this alleged libel, we think this point is met by the express charge of malice in the publication of the alleged libelous article. Andrew v. Deshler, 14 Vroom 16, 21. Upon the demurrer to the first count there should be judgment for the plaintiff. . The second count of the declaration sets out facts similar to the first, with the single feature of difference that in the first the defamatory words are alleged to have been published, while in the second they are alleged to have been uttered in a certain discourse. The same points made in regard to the insufficiency of the first count are repeated as the grounds for demurrer to the second count. An additional ground for demurrer is that — 211 — there is no cause for an action for slander, because a corporation cannot be guilty of slander. It is settled in this state that a corporation may he guilty of libel, and conceding the liability of corporations for defamatory words written by its officers or agents, it is impossible to conceive on what ground immunity ban be claimed for it for defamatory words spoken by its officers or agents. Another ground upon which the demurrer to the second count is placed is that the alleged defamatory matter set forth in the count is not actionable per s&, therefore no cause for action is shown, because no special damage is alleged. I have already remarked that the cause for action set forth in the first count being for libel, the allegation of special damages was not essential. If the words spoken are also slanderous per se, then no special damages need be alleged to support the second count. The charge seems to be clearly that the defendant imputed to plaintiff fraudulent conduct in the conduct of its business. Language which imputes to one fraud or want of integrity in his business is actionable per se. Any charge of dishonesty against a party in connection with his business, whereby his character in such business may be injuriously affected, is actionable. The cases upon this point are collected in 25 Cyc. L. & Pro. 342. There was no need of alleging special damages to support the count against a demurrer. Whether there was a sufficient allegation of special damages, therefore, need not be discussed. It was pressed upon the argument that both counts were defective because it was charged that the defendant published the alleged defamatory words and it was not charged that the defendant by its agents published or spoke the alleged defamatory words. This point we have not considered, as it was not one of the grounds for demurrer. There should he judgment for the plaintiff on the. demurrer.