Meyerle v. Pioneer Publishing Co.

178 N.W. 792, 45 N.D. 568, 1920 N.D. LEXIS 161

• Court: North Dakota Supreme Court
• Decided: June 26, 1920
• Status: Published

Opinions

Pee Curiam.

This is an action for libel. The defendant has appealed from an order overruling a demurrer to the complaint. The defendant is engaged in the business of publishing the Mandan Daily Pioneer, a newspaper published at Mandan. The complaint alleges that on December 16, 1919, the defendant published on the front page of its newspaper the following: ,,

Would Help the Lord End the World.

Glen Ullin Man Invites Family to One Last Feast under Parental Boof, Buys Shrouds for All — Only Needed Machine Gun.

George Meyerle, sixty years old farmer of Glen Ullin, is so sure the world is coming to an end to-morrow that he decided to help the Lord out in so far as lie personally and his immediate family and their children and wives are concerned.

A wholesale sacrifice by the gnn route was all scheduled by Meyerle until some of the members of the family learned of his plans and have interfered.

Some days ago he wrote letters to all the members of his family, — he has six married children, — advising them all to come home and have a last feast before the end of the world, December llth. •

Then, it is said, he bought shrouds for himself and all the rest of his family and proposed to-day to anticipate the end of the world by a twenty-four-hour span. He bought a gun and proposed to use it on himself and offered to perform a like service on the rest of the family if they would give their consent. At least, he asked, would they be present at the time of his taking off, meet at the parental home, and under the roof which sheltered them in their youth await the crack of doom.

However, all of the family expressed themselves as being willing to await the trump of Gabriel’s horn, and were opposed to believing what some pessimistic professor of starology might predict after a mental aviantic among the planets. His kindly offer to help the Lord bring about the millenium has been courteously refused.

Meyerle believes everything he hears. Huh? Certainly he is an ardent follower of Townley.

It further alleges that such publication was false and defamatory, and that the plaintiff was injured in his good name, fame, and reputation as a citizen and resident of Morton county, in the sum of $Í0,000. The defendant demurred to this complaint upon the ground that the same did not state a cause of action.

The defendant contends that the failure of the plaintiff to plead a demand for retraction, as required by statute, shows no cause of action. That the statute which requires a demand for a retraction before a snit for libel can be brought against a newspaper allows only special damages whether retraction has been made. That, without a showing of a demand for retraction and a refusal to retract, the plaintiff is limited to special damages to his property, business, trade, profession, or occupation, under the statute. That, furthermore, the complaint is fatally defective because it fails to plead in any manner special damages.

Concerning the demand for retraction, § 9652, Comp. Laws 1913, reads as follows:

“Before any suit for libel can be brought against a newspaper, other than a libel of, or concerning a female, the party aggrieved must, at least three days before filing his complaint, serve notice on the publisher of such newspaper at the principal office of its publication, specifying the statement alleged to be false and defamatory, and then if on the trial it appears that the article was published in good faith, and its falsity was. due to a misapprehension in regard to the facts and a full and fair retraction of the erroneous statement was published in the next issue of the paper, or in the case of a daily paper within three days after the mistake was brought to the attention of the publisher, in as conspicuous a place and type as the original article, the plaintiff will be entitled to recover /only such damage as he can show he has sustained to his property, busiqt I ness, trade, profession or occupation. But if the libel is against a candidate for office, the retraction must also be made editorially, and in the case of a daily paper at least three days, and in the case of a weekly paper, at least ten days before the election.”

The demurrer to the complaint admits allegations of falsity, publication, and notice. 17 R. C. L. 398; 25 Cyc. 468; McCue v. Equity Co-op. Pub. Co. 39 N. D. 190, 167 N. W. 228. The demurrer tests the actionable character of the charge, and will be sustained only where the court must affirmatively say that the publication is incapable of any reasonable construction which will render the words defamatory. 25 Cyc. 468; McCue v. Equity Co-op. Pub. Co. supra. Libel is the false unprivileged publication, by writing, printing, picture, effigy, and other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obliquy, or which causes him to be shunned or avoided, and which causes him to be injured in his occupation. Comp. Laws 1913, § 4552. If the language as charged fairly imputes to the plaintiff such acts of conduct, which would naturally be followed by the consequence named in the statute, it is libelous per se. Lauder v. Jones, 13 N. D. 525, 541, 101 N. W. 907. If, as a matter of law, there is any doubt concerning the construction to be placed upon the language used, and if there is doubt upon which reasonable men might differ concerning the effect of the publication of such article, these are matters for the consideration of the jury. Ibid.; McCue v. Equity Co-op. Pub. Co. supra. In determining the true character and significance of the article, we believe that the jury might find either that it charges an attempt to commit a crime or crimes, or that it charges mental incapacity. In either event pursuant to statute it would be actionable. 25 Cyc. 252, 259, 277; Adams v. Scott, 33 S. D. 194, 145 N. W. 446; Hanson v. Krehbiel, 68 Kan. 670, 64 L.R.A. 790, 104 Am. St. Rep. 422, 75 Pac. 1041; Park v. Detroit Free Press Co. 72 Mich. 560, 1 L.R.A. 599, 16 Am. St. Rep. 544, 40 N. W. 731; 17 R. C. L. 286. See §§ 10,337 and 10,338, Comp. Laws 1913. The article being susceptible of the determination that it is libelous per se, the plaintiff, in the absence of the statute requiring a demand for retraction, would be entitled, upon the complaint, to recover in this state all damages to which he would be entitled, including actual or compensatory, and punitive or exemplary.

The questions for consideration, therefore, upon the contentions of the defendant are:

(1) Whether a demand for retraction in an action for libel against a newspaper must be served in all cases; and,

(2) The extent to which the statute applies for the recovery of damages where there has been no retraction or opportunity afforded to make retraction.

The statute prescribes, as above noted, that, where full retraction has been made, the plaintiff will be entitled to recover only such damages as he can show he has sustained to his property, business, trade, profession, or occupation. The contention of the defendant, that such damages refer only to special damages to his property, business, trade, profession, or occupation, is erroneous.

Section 9, N. D. Const. so far as applicable, provides': “Every man may freely write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege.”

Again, § 22, N. D. Const., so far as applicable, provides: “All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay.”

By the Constitution, the right of free speech and free publication is guaranteed. By this Constitution, the right of redress for injuries done through the abuse of this privilege is also guaranteed. McCue v. Equity Co-op. Pub. Co. supra; Park v. Detroit Free Press Co. 72 Mich. 560, 1 L.R.A. 599, 16 Am. St. Rep. 544, 40 N. W. 731; Hanson v. Krehbiel, 68 Kan. 670, 64 L.R.A. 790, 104 Am. St. Rep. 422, 75 Pac. 1041.

This right of redress for injuries done extends, under the Constitution, to a person’s reputation, as well as to his land, goods, and person. For a wrong perpetrated upon a person’s reputation he may recover his damages. Generally speaking, there are recognized two classes of damages in libel cases, general damages and special damages. The term “general damages” is considered synonymous with actual damages or compensatory damages. Osborn v. Leach, 135 N. C. 628, 66 L.R.A. 648, 650, 47 S. E. 811; 17 C. J. 710. They are such damages that ordinarily result or flow proximately from the publication of a libel. These damages to a person’s reputation, although they may not be capable of objective measurement in actual dollars and cents, nevertheless, they are not speculative; they neither require special allegation nor special proof. They are capable of being reduced to money values by reason of the law’s presumption that an injury done to a person’s feelings, the public shame and disgrace incurred, and the degradation of his reputation, are a substantial loss. These damages are in the nature of a property right; they have been said to constitute property. See 17 C. J. 710, 829, 841; See Newell, Libel & Slander, p. 841; Pratt v. Pioneer-Press Co. 35 Minn. 251, 28 N. W. 708; Cruikshank v. Bennett, 30 Misc. 232, 62 N. Y. Supp. 118; Adams v. Scott, supra; 17 R. C. L. 430, 431; Osborn v. Leach, supra.

Special damages, on the contrary, refer to a special pecuniary loss that may have been sustained on account of the peculiar circumstances and condition of the party injured, but are not such a necessary result that they will be inferred by law from the character of the words used. Hanson v. Krohbiel, supra; Newell, Libel & Slander, p. 849; 17 C. J. 715. Such damages may constitute elements of actual damages. The statute also permits, in libel actions, punitive or exemplary damages. Comp. Laws 1913, § 7145. It also allows the recovery of nominal damages. Comp. Laws 1913, § 7184. See also 17 C. J. 714.

Hnder the Constitution and statutory provisions, and the principles of law applicable thereto, the statute in question should be given a construction that will render it consistent with the fundamental and cognate law, and harmonious with the evident purpose and intent for which the statute was enacted.

In Hanson v. Krehbiel, supra, a Kansas statute very similar to the statute quoted herein was considered. Under that statute where a retraction had been demanded of a newspaper libel and a full retraction had been made, the party was limited in recovery to only actual damages suffered in respect to his property, business, trade, profession, or occupation, and no other damages whatever. This statute was held to be unconstitutional. "We do not so determine this statute to be unconstitutional. Its evident purpose and intent, in our opinion, is to afford an opportunity to the newspaper against whom the libelous charge is directed to mitigate the actual or compensatory damages recoverable by showing the absence of malicious intent, and also the right, by means of a full retraction made, to eliminate exemplary damages as an element of recovery. It is quite proper for such statute, consonant with the constitutional principles, to permit an opportunity for full retraction for such purposes in the same medium in which the libelous charge has been made. It is plainly evident, therefore, that, regardless of whether a retraction has been fully made or not, the person subjected to a libel per se ’is not limited in his recovery to special damages. Although it might be competent for the legislature to prescribe, as a condition precedent, a demand for a retraction in any newspaper libel before any action could be instituted (which question we do not decide), nevertheless, we are satisfied, pursuant to the evident purpose and intent of the statute, that the legislature did not so intend in the enactment of the statute in question. The question accordingly, of the necessity of serving a demand for retraction, must be considered in connection with the purpose of the statute. This matter has been considered in several states upon similar statutes.

In Clementson v. Minnesota Tribune Co. 45 Minn. 303, 47 N. W. 781, an action was brought against a newspaper for libel. A demurrer was interposed that no cause of action was alleged for the reason that the plaintiff failed to allege a demand for retraction as required by the statute. Justice Mitchell wrote the opinion. In part he states:

“Now it is evident that the sole purpose of this statute in requiring notice to be served before suit is to give the publishers of the paper an opportunity to publish a retraction; and the only, effect of the retraction, if made, in case it appears on the trial that the article was published in good faith, and that its falsity was due to mistake or misapprehension of the facts, is to prevent the recovery of general damages and limit it to actual damages. The retraction, if made, does not affect in the least the recovery of actual damages. So far as the right to recover such damages is concerned, the service of the notice referred to would be a mere idle and useless ceremony, which the legislature cannot be presumed to have contemplated or intended. Hence, notwithstanding the general language of the first clause of the statute, yet, as it is only the right to recover general damages which the legislature was seeking to limit, and as the service of notice or a consequent retraction can have no possible effect upon the recovery of actual damages, it should be held that the provision as to the service of notice has reference only to a claim for damages of the former class. Hence, as this complaint states a cause of action for actual damages, it was good as against a general demurrer.”

See also 17 R. C. L. 392; Foye v. Guardian Printing & Pub. Co. (Cir. Ct. N. Y.) 109 Fed. 369; Hanson v. Krehbiel, 68 Kan. 670, 64 L.R.A. 790, 104 Am. St. Rep. 422, 75 Pac. 1041; Osborn v. Leach, 135 N. C. 628, 66 L.R.A. 648, 650, 47 S. E. 811. The defendant has cited the cases of Williams v. Smith, 134 N. C. 249, 46 S. E. 502, and also Osborn v. Leach, supra, to the effect that a demurrer should be sustained where the demand for retraction, pursuant to the statute, has not been alleged. It is to be noted, however, that, in Osborn v. Leach, decided after the Williams v. Smith case, supra, although the opinion as written so holds, the majority of the court dissented upon this special question, and this majority opinion holds that such notice is required for the purpose of furnishing the defendant an opportunity to publish a retraction, the effect of which extends no further than to relieve from punitive damages. In this regard the court says:

“When such demurrer is sustained, the action should not be dismissed, but the court can still permit, in its discretion, the plaintiff to amend the complaint by averring such notice, if it was in fact given; and, if it was not, the action is still valid for the recovery of actual damages; that is, of all except punitive damages, and it would be error to dismiss it.”

To summarize, we are of the opinion:

(1) That the sole purpose of the statute is to give the publisher of a newspaper who, through mistake or misapprehension in regard to the facts, in good faith publishes a libelous article, an opportunity to retract and thereby as far as possible undo the wrong which he unintentionally did to the party libeled.

(2) That it is not the purpose of the statute to take away from the party libeled right to full reparation for the injury he has sustained. The party who unintentionally committed the wrong is merely permitted as far as possible to undo it, and thereby mitigate the damages. Bni_if_any-damages_ remain after the retraction has been made, the party libeled is entitled to recover them.

(3) That the only effect of the retraction, if made, is, in case it .appears on the trial that the article was published in good faith, and that its falsity was due to mistake or misapprehension in regard to the facts, that the plaintiff will be entitled to recover only whatever damages then remain. That is, in such case the plaintiff will not be entitled to recover exemplary damages; nor will he be entitled to recover any more general or special damages than sufficient to compensate him for the injury remaining unsatisfied after the publication of the retraction.

(4) Whether a complaint like the one before us, which alleges merely general injury to plaintiff’s good name and reputation, and does not ■allege the service of a demand for retraction, sets forth a cause of action for more than nominal damages, is one upon which the majority members are not wholly agreed, and that question is not determined. The majority members, however, are agreed that such complaint, in any event, states a cause of action for nominal damages.

It follows, therefore, that the trial court did not err in overruling the demurrer. The order is affirmed, with costs to respondent.

Christianson, Ch. J., and Birdzell, and Bronson, JJ., concur.