Baum v. Gillman

667 P.2d 41, 1983 Utah LEXIS 1104

• Court: Utah Supreme Court
• Decided: June 30, 1983
• Docket: 17755
• Status: Published

Opinions

HALL, Chief Justice:

Plaintiff (Baum) brought this action for both libel and slander alleged to have been committed by defendant (Gillman) during the course of an interview with a newspaper editor. However, inasmuch as the statements complained of were alleged to have been made orally, and not in writing, they only support an action for slander.

The complaint, as amended, set forth 13 causes of action for slander. The trial court dismissed 12 of the causes for failure to state a claim, and Baum appeals. The remaining cause was disposed of by summary judgment in favor of Gillman and no appeal is taken therefrom.

This lawsuit is one of several between Baum and Gillman. Gillman and other fruit growers heretofore obtained a judgment against Baum and others for sums due for sour cherries delivered in 1973. Baum brought an anti-trust action in federal court against Gillman, other fruit growers and the LDS Church.¹

In years past, Baum was engaged in a fruit processing business. In 1974, Baum suffered a mortgage foreclosure on his processing plant and the property was purchased at foreclosure sale by the LDS Church. Baum has not since engaged in the fruit processing business.

In 1979, the CBS television program “60 Minutes” highlighted certain of the events which gave rise to the various legal proceedings which involved the parties hereto and the LDS Church. This apparently prompted the newspaper interview which forms the basis of the instant lawsuit.

On this appeal, Baum contends that his amended complaint adequately states a cause of action. Gillman’s rejoinder is that the complaint is deficient in that: 1) it fails to allege that the statements made were known to be false or that they were made with reckless disregard for their truth or falsity; and 2) it fails to allege special damages which are necessary since the statements made were not defamatory per se.

The amended complaint recounts the following statements as having been made by Gillman: 1) Baum caused his trees to die; 2) the growers did not deal with Baum because he did not pay as agreed; 3) Baum was in poor financial condition; 4) some growers were not paid at all; 5) Baum threw four of the biggest growers out of his house; 6) Baum’s bond paid a “little bit” to the growers; 7) Baum had used “our money” to pay creditors;² 8) Baum was the victim of a suit “initiated” by several growers; 9) Gillman urged other growers not to deal with Baum because he was “broke,” and also urged them to join in a suit against him; 10) Baum was indebted to Gillman in the amount of $20,000; 11) Baum took $50,-000, paid lawyers $17,000, and filed suit “against the Church”; and 12) Gillman told one Glen Carlson that Baum would be out of business within a year.

The complaint made a demand for general damages in the amount of $300,000, but contained no allegation of special damages. As was observed in Allred v. Cook.3

The general rule is that if special damages are not alleged, the slander must amount to slander per se before recovery is allowed. Slander per se does not require a showing of special damages because damages and malice are implied. [Citations omitted.]⁴

Inasmuch as the complaint contains no allegation of special damages, in order to state a claim upon which relief can be granted the statements attributed to Gillman must constitute defamation per se.5 In order to constitute defamation per se, the defamatory words must charge criminal conduct, loathsome disease, conduct that is incompatible with the exercise of a lawful business, trade, profession, or office, or the unchastity of a woman.⁶ Whether the defamatory words are actionable per se is to be determined from their injurious character. The words must be of such common notoriety that damage can be presumed from the words alone.⁷ The test is as was applied in Nichols v. Daily Reporter Co.8

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 loss, its publication is libelous per se. [Citations omitted.]

The nature of the writing must be such that the court can legally presume that the plaintiff has been damaged. [Citation omitted.]

... Except where this presumption exists, special damages to the plaintiff’s reputation must be alleged and proved to have been the actual and natural result of the language used. [Citations omitted.]

Application of the foregoing test in the instant case prompts the conclusion that the complaint does not allege defamation per se. None of the allegations contained in the complaint, as set forth supra, are such that the Court can legally presume that Baum has been damaged because they clearly do not impute criminal conduct, loathsome disease, conduct incompatible with the exercise of a lawful business or unchastity. While it is true that the statements impute poor business practices in the past, such must be viewed and considered in light of the fact that Baum had been out of the fruit processing business since 1974 and the newspaper article did not appear until 1979, five years later. Furthermore, the complaint does not contain any allegation that Gillman’s statements damaged Baum in any current business endeavor or pursuit. Statements which may only be injurious to some future happening do not give rise to a cause of action for either per se or per quod defamation.⁹

The judgment of the trial court is affirmed. No costs awarded.

OAKS, HOWE and DURHAM, JJ., concur.

1 . Baum v. Gillman, 648 F.2d 1292 (10th Cir. 1981).

2 . Contrary to the conclusion reached in the dissent, this is not an allegation of dishonesty. Baum did not have the growers’ money. He had their cherries. The purported statement implies that Baum preferred other creditors.

3 . Utah, 590 P.2d 318 (1979).

4 . 50 Am.Jur.2d Libel and Slander § 9.

5 . Allred v. Cook, supra, footnote 2; Western States Title Insurance Co. v. Wamock, 18 Utah 2d 70, 415 P.2d 316 (1966); Nichols v. Daily Reporter Co., 30 Utah 74, 83 P. 573 (1905).

6 . Id.

7 . Allred v. Cook, supra, footnote 2.

8 . Supra, footnote 4.

⁹