Opinion
File No. 6145.
Opinion filed August 10, 1933.
Appeal from the District Court of Slope County, Pugh, J. Action for damages for libel. From a judgment for the plaintiff, defendant Phelan appeals.
Affirmed conditionally.
Byrne Reichert and W.C. Crawford, for appellant.
It is fundamental in the law of defamation that since the basis of an action for defamation is damages for the injury to character in the opinion of other men, in order to render defamation of any kind actionable, there must be a publication thereof. 36 C.J. 1223; 17 R.C.L. 315; Youngquist v. American R. Exp. Co. 49 S.D. 373, 206 N.W. 576.
The communication of the defamatory matter only to the person defamed is not a publication upon which an action can be based. 36 C.J. 1227; 17 R.C.L. 316; 24 A.L.R. 237 and note p. 239.
The plaintiff is bound to abide by his own construction of the words used. 17 R.C.L. 397; Callahan v. Ingram, 122 Mo. 355, 26 S.W. 1020, 43 Am. St. Rep. 583; 37 C.J. 26.
The rule of construction of words alleged to be defamatory is that the words must be taken in the sense in which they would be understood by those who read them. 17 R.C.L. 312, § 53, note 19 and cases cited.
A libel to be actionable must have been communicated to a third party. Harbison v. Chicago, R.I. P.R. Co. (Mo.) 37 S.W.2d 609; Wrought Iron Range Co. v. Boltz, 123 Miss. 550, 86 So. 354.
Where the recipient of a libelous letter shows the same to a third person, he cannot recover damages for such publication, as he alone is responsible therefor. Gough v. Goldsmith, 44 Wis. 262, 28 Am. Rep. 579; Wilcox v. Moon, 64 Vt. 450, 24 A. 244, 15 L.R.A. 760 and note.
The question of damages is a question for the jury, still the courts will interfere when it is plain that the verdict is the result of gross error, prejudice, perverseness or corruption. 17 R.C.L. 444; Woodhouse v. Powles, 43 Wn. 617, 86 P. 1063, 8 L.R.A.(N.S.) 783.
The language to be actionable per se must fairly impute to another such acts of conduct as would naturally result in exposing him to contempt, ridicule or obloquy. Langer v. Courier News, 46 N.D. 430, 179 N.W. 909; Wrege v. Jones, 13 N.D. 267, 100 N.W. 705.
The jury must give only such damages as are the direct and proximate result of the publication, but not speculative and remote damages. 37 C.J. 116.
C.H. Starke, for respondent.
In an action against a newspaper for publishing an article, libelous per se, the party injured, under constitutional and statutory provisions, may be awarded general, special and exemplary damages. Meyerle v. Pioneer Pub. Co. 45 N.D. 568, 178 N.W. 792.
Since in the absence of any evidence of damage the law presumes damage from the publication of words actionable per se, it is generally held that the plaintiff is not required to show actual damages in order to be entitled to substantial damages. 37 C.J. 115 (22).
This is an action to recover damages for libel. The defamatory writing and the publication thereof on account of which the plaintiff claims to recover, are the same ones established and for which the plaintiff had a recovery in Waite v. Stockgrowers' Credit Corp. just decided, [ante, 763, 249 N.W. 910]. The records in the two cases are practically the same, except that in the instant case the plaintiff Davis was not present at the trial and did not testify. Defendants offered no evidence. On motion at the close of the trial the court dismissed the case against the defendant Stockgrowers Credit Corporation but submitted it to the jury as against the defendant Phelan. The jury returned a verdict for the plaintiff for $120 actual damages and $5 exemplary damages. From the judgment entered thereon, the defendant Phelan appeals.
The contentions made on the appeal are identical with those raised in the Waite Case. For the same reasons as are stated in that case the judgment must be reversed and a new trial ordered, unless the plaintiff will remit his damages in excess of the sum of $25, and in case of such remission the judgment as entered will be amended accordingly, and as so amended affirmed.
BURKE, BIRDZELL, CHRISTIANSON and BURR, JJ., concur.