MORRIS, J. This is an action for libel. Upon a former appeal ( 66 N.D. 578, 268 N.W. 400) involving a demurrer to the complaint, we held that the matter alleged to be defamatory did not constitute libel per se, but that the complaint did allege a libel per quod, and suffiicently set forth facts constituting a defamatory publication. We further held that general damages do not result as a matter of course from the publication of defamatory matter that is not libelous per se and that the complaint was demurrable for failure to allege special damages.
In determining whether an article is libelous per se, the article, alone, must be considered, stripped of all insinuations, innuendoes, colloqium and explanatory circumstances. It must be considered in its entirety and be defamatory on its face. Wimmer v. Oklahoma Publishing Co., 151 Okl. 123, 1 P.2d 671; Towles v. Travelers Insurance Co., 282 Ky. 147, 137 S.W.2d 1110; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55; Shaw Cleaners Dyers, Inc. v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W. 231, 86 A.L.R. 839; Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400; Ryan v. Hearst Publications, Inc., 3 Wn.2d 128, 100 P.2d 24. When a complaint fails to state a cause of action, it is not error to sustain a demurrer, without leave to amend, and dismiss the action where plaintiff made no application to amend.
The general rule is that in an action for libel the exact language of the defamatory publication must be set out in the complaint, and it is not sufficient to allege the publication in substance and effect. Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400; 17 RCL 390. A publication is actionable per se when the language used therein is susceptible of but one meaning and that an opprobrious one. Tulsa Tribune Co. v. Kight, 174 Okla. 359, 50 P.2d 350; Rowan v. Gazette Printing Co. 74 Mont. 326, 239 P. 1035.
The case has been here before. See Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400. On the former appeal an order overruling a demurrer to the complaint was reversed and the case was remanded with directions that the plaintiff be permitted to amend upon terms. He did amend, and the present appeal is from an order overruling a demurrer to the amended complaint.
In order to determine whether it is libelous per se no resort may be had to any declaration as to the meaning of the words or as to the intention of their author; it must be construed apart from allegations of innuendo and inducement. ( Holway v. World Publishing Co., 171 Okla. 306 [ 44 P.2d 881]; Kassowitz v. Sentinel Co., 226 Wis. 468 [277 N.W. 177]; Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578 [ 268 N.W. 400, 408]; Tulsa Tribune Co. v. Kight, 174 Okla. 359 [ 50 P.2d 350]; Grand v. Dreyfus, 122 Cal. 58 [54 P. 389]; Noral v. Hearst Publications, Inc., 40 Cal.App. (2d) 348 [ 104 P.2d 860].) Also in determining whether a publication is libelous per se, its language must be given the natural and popular construction of the average reader.
North Dakota has followed that rule. Ellsworth v. Martindale-Hubbell Law Directory, Inc., 66 N.D. 578, 268 N.W. 400, 407 (1936) ("The libel so pleaded is per quod, and as we have held in the original opinion, must be accompanied by allegations of defamatory understanding and special damages in order to present a cause of action."). The requirement of proving special damages in a libel action is a minority rule.
To recover on a cause of action for defamation in this state, one must prove: the defamatory character of the communication, the fact that the communication refers to the plaintiff, the third party's understanding of the communication as defamatory, and, unless the communication is actionable per se, special damages suffered. Emo v. Milbank Mutual Insurance Company, 183 N.W.2d 508 (N.D. 1971); Rickbeil v. Grafton Deaconess Hospital, 74 N.D. 525, 23 N.W.2d 247 (1946); Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400 (1936). Slander is a statutory cause of action in North Dakota.
Other jurisdictions have followed the seventeenth-century English doctrine of mitior sensu, applicable to slander, which required that words be given an innocent construction whenever humanly possible. See, e.g., John v. Tribune Co., 24 Ill.2d 437, 181 N.E.2d 105 (1962), cert. denied, 371 U.S. 877, 83 S.Ct. 148, 9 L.Ed.2d 114 (1962); Johnson v. Campbell, 91 Ohio App. 483, 108 N.E.2d 749 (1952); Tulas Tribune Co. v. Kight, 174 Okl. 359, 50 P.2d 350 (1935); Ruble v. Kirkwood, 125 Or. 316, 266 P. 252 (1928); Manley v. Harer, 73 Mont. 253, 235 P. 757 (1925); Dalton v. Woodward, 134 Neb. 915, 280 N.W. 215 (1938); Ellsworth v. Martindale Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400 (1936). The art of construing in mitior sensu probably reached its zenith (or perhaps its nadir) in the famous case of Holt v. Astrigg, 79 Eng.Rep. 161 (1608).
Thus, in the case at bar, there was a publication to Mrs. Emo, the addressee of the letter, who was a third party, and a party other than the defamed. In paragraph 3 of the syllabus in Murphy v. Farmers Educational Cooperative Union, 72 N.W.2d 636 (N.D. 1955), and in paragraph 3 of the syllabus in Ellsworth v. Martindale-Hubbell Law Directory, 66 N.D. 578, 268 N.W. 400 (1936), this court defined libel per se as follows: "A defamatory publication is libelous per se when without the aid of innuendo it must be presumed to expose the plaintiff to hatred, contempt, ridicule, or obloquy, or cause him to be shunned or avoided, or have a tendency to injure him in his occupation."
In the above article it is pointed out that in those states where the issue has been squarely presented, other than in the one New York case, the ruling has been that the allegation of special damages is essential to the statement of a claim for libel per quod. See Ilitzky v. Goodman, 57 Ariz. 216, 112 P.2d 860; McBride v. Crowell-Collier Pub. Co., 5 Cir., 196 F.2d 187 (applying Florida law); Karrigan v. Valentine, 184 Kan. 783, 339 P.2d 52; Axton Fisher Tobacco Co. v. Evening Post Co., 169 Ky. 64, 183 S.W. 269, L.R.A. 1916E, 667; Campbell v. Post Pub. Co., 94 Mont. 12, 20 P.2d 1063; Chase v. New Mexico Pub. Co., 53 N.M. 145, 203 P.2d 594; Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55; Ellsworth v. Martindale-Hubble Law Directory, 66 N.D. 578, 268 N.W. 400; Moore v. P.W. Publishing Co., 3 Ohio St.2d 183, 209 N.E.2d 412; Hargrove v. Oklahoma Press Pub. Co., 130 Okl. 76, 265 P. 635; Fite v. Oklahoma Pub. Co., 146 Okl. 150, 293 P. 1073; Fry v. McCord, 95 Tenn. 678, 33 S.W. 568; Electric Furnace Corp. v. Deering Milliken Research Corp., 6 Cir., 325 F.2d 761 (applying Tennessee law); Yelle v. Cowles Publishing Co., 46 Wash. 2d 105, 278 P.2d 671, 53 A.L.R.2d 1. See also the cases cited in the footnotes to 53 C.J.S. Libel and Slander ยง 170(c). There may be some question concerning the historical development of the rule (see Henn, Libel-By-Extrinsic-Fact, 47 Cornell L. Quart. p. 14), but after careful consideration of the articles and cases relied on by plaintiff and those cited above, we conclude that the requirement that special damages must be alleged when the published words are not libelous per se is sound.