Opinion
No. 29533.
November 23, 1931.
1. LIBEL AND SLANDER.
Where alleged libelous interview was published and circulated in Kansas, governing principles of law were those of state of Kansas.
2. LIBEL AND SLANDER.
Under Kansas law, unless alleged libelous language was defamatory per se, there was no cause of action unless special damages were pleaded and proven.
3. LIBEL AND SLANDER.
In determining whether interview was libelous per se under Kansas law, headlines, as well as body of article, must be considered.
4. LIBEL AND SLANDER.
In determining whether newspaper interview was defamatory per se under Kansas law, each statement must be considered in connection with others and whole fairly and reasonably interpreted.
5. LIBEL AND SLANDER.
Under Kansas law, innuendo cannot make libelous words which obviously are not libelous.
6. LIBEL AND SLANDER. Language of actor given in newspaper interview to effect that manager was mistaken in claiming that he had contract with actor to perform with ranch show held not libelous per se under Kansas law.
The alleged libel consisted in publication in newspaper of interview had by reporter with actor, and the headline read, "Mix declares `talkies' are step backward and short-lived novelties," and after telling of actor's view on talking pictures, the article stated that actor was asked whether he believed he would have opportunity to please more people by joining circus he was with than certain ranch show, and stated that he dismissed matter by saying: "That was simply a nightmare of Zack's. I never considered any contract with the 101 Ranch."
7. LIBEL AND SLANDER.
Under Kansas law, manager and owner of undivided interest in show could not recover in his own right for any special damages suffered by show or its lessees as result of alleged libelous newspaper interview with actor.
APPEAL from chancery court of Adams county; HON. R.W. CUTRER, Chancellor.
Engle Laub, of Natchez, for appellant.
Any rights which the appellant might have arose under the law of Kansas.
A right is created to restitution in Kansas and a remedy is given for an infringement of that right.
Revised Statutes of Kansas under the entitlement "Crimes and Punishments" (21-2401).
In an action for damages founded on the publication of a libelous newspaper article an allegation in the petition that the printed language was used of and concerning the plaintiff imports that those who read it so understood. And written words are actionable per se if they tend to render him of whom they are written contemptible or ridiculous. So if they are calculated to produce social ostracism.
Eckert v. Van Pill, 76 P. 909.
False publication concerning person named or described tending to enrage, expose to public hatred, contempt, or ridicule, or deprive of public confidence and social intercourse is actionable per se; publication charging plaintiff of improper conduct as political boss held libelous per se on demurrer.
Knapp v. Green, 256 P. 153.
The delivery, selling, reading or otherwise communicating a libel, or causing the same to be delivered, sold, read or otherwise communicated to one or more persons or to the party libeled, is publication thereof.
Revised Statutes of Kansas, 21-2405.
Where a defendant dictates a slander or furnishes a malicious statement to a reporter of a newspaper for publication and with the intention and understanding that it will be published and such reporter afterwards commits it to writing and causes it to be published as given to him, the defendant is responsible for libel, although he may not see what is written until after the same is published; and especially is this true where the defendant subsequently endorses the publication and adopts the same as his own.
State v. Osborne, 38 P. 572.
A cause of action for libel may be stated although the alleged libelous article did not charge the aggrieved party with the commission of a crime defined by statute.
Jerald v. Houston, 242 P. 472.
Where the language of a publication is libelous it is no defense to the action of party aggrieved that the publisher did not so intend it.
Rodgers v. Kline, 56 Miss. 808.
All of the evidence tends to show that the interview given out by Mix was maliciously and recklessly given out, and if so, regardless of the actual damage done, punitive damages should lie.
Interstate Company v. Garnett, 122 So. 373, 154 Miss. 325; Pullman Palace Car Company v. Lawrence, 74 Miss. 782, 22 So. 53.
Written charges imputing falsehood in direct form, or words implying want of veracity are libelous per se.
36 C.J., 1170, par. 41; Fribble v. Y. M.V.R.R. Co., 60 So. 2, 103 Miss. 1.
The law implies damage from the fact of slander; nor will the slanderer be permitted to say, either that his own reputation is so low or that of his victim's so high, that the evil words have wrought no harm. The jury must in such cases give damages even though they will be nominal. The amount is to be determined by them and their award will not ordinarily be disturbed, where no error occurred.
Jones v. Edwards, 57 Miss. 28; Hubbard v. Rutledge, 52 Miss. 581.
To determine whether publication is libelous it is the duty of the court to take into consideration all the circumstances of the case and to weigh each fact having a legal bearing on the publication and to regard the occasion on which it was made.
Tate v. Nicholson, 122 La. 472, 47 So. 774.
The words in question were not privileged nor were they uttered under circumstances repelling the presumption of malice. They were slanderous words as used, and, therefore, it will be a presumption that they were used maliciously.
Jarnigan v. Fleming, 43 Miss. 710.
Where a malicious design is clearly proved the plaintiff is entitled to recover such damages as the jury may award without proof of any actual damage and they may find a verdict for an amount sufficient to punish the defendant for libel and wrong done the plaintiff.
Hubbard v. Rutledge, 52 Miss. 581, 57 Miss. 7.
A libel may consist of irony in the form of praise or abuse under color of jest; as to such, the court will look through the disguise; no other evil motive than the disregard of another's rights, which will destroy character for amusement being necessary for the offense.
Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290.
It is immaterial in this case whether Miller was the sole owner, lessee or manager of the 101 Ranch Show. He was connected with the show and the damage done in this instance was done him as a showman, regardless in what capacity.
E.H. Ratcliff and L.T. Kennedy, both of Natchez, and J.M. Kelley, of New York City, for appellee.
It is the jurisdiction in which the article is published and circulated that determines whether the words used are actionable. An action lies in one state for words published in another state, provided they are actionable by the laws of such state.
37 C.J., 19; 17 R.C.L., 371; 9 Am. Cas. 383.
The plaintiff must be the one against whom the defamation is directed or be in a position where he suffered damage, directly attributable thereto.
18 Cyc., 1051.
A brother cannot sue for slander of his sister. An amusement proprietor cannot sue for libel of his performer by reason of which she has been deterred from performing. The injury is too remote.
18 Cyc., 1052.
The charge complained of must relate to the business of the injured party. It is not enough that the language used tends to injure a person in his office, profession or trade, but it must be published of him in his official or business capacity.
17 R.C.L., 1277; Dudley v. Briggs, 141 Mass. 582, 73 Atl. (Md.) 19; Nat'l Shutterbar Co. v. Jimmerman, 73 Atl. (Md.) 19.
Charging one with failure to keep his contracts, not actionable.
Bennett v. Williamson, 4 Sandf. (N.Y.) 60.
Unless the language used was actionable per se a cause of action is not stated because special damages are not pleaded.
Knapp v. Green, 123 Kan. 550, 256 P. 153; Jerald v. Houston, 124 Kan. 657, 261 P. 851 (1927).
In determining whether a newspaper article is libelous per se, headlines and the body of the article must both be regarded. Each statement must be considered in connection with the other and the whole must be fairly and reasonably considered.
Jerald v. Houston, 124 Kan. 657, 261 P. 851 (1927); Stone v. Hutchinson, 125 Kan. 720, 59 A.L.R. 1061, 40 A.L.R. 583.
Innuendo cannot alter, explain or enlarge the meaning of the words used.
Jerald v. Houston, 124 Kan. 657, 261 P. 851; McKenney v. Carpenter, 141 P. 777; Sherman v. Dunn, 114 P. 617; Kee v. Armstrong, 182 P. 494; Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95, 172 N.E. 139; Moore v. Miers, 72 A. 32; Gordon v. Journal Co., 69 A. 745; Baugh v. Moore, 89 A. 929; Yakavicze v. Valentukivicious, 84 Conn. 350.
Innuendoes cannot make libelous, words obviously not libelous.
Houston v. Bristow, 87 Kan. 72, 123 P. 725; State v. Huff, 96 Kan. 632, 152 P. 642.
It is impossible for the appellant to read into this article an element of malice or libel per se.
Kee v. Armstrong, 182 So. 494; Moore Stave Co. v. Wells, 72 So. (Miss.) 228.
If the publication complained of is not libelous per se and no special damages are pleaded or proved no recovery can be had.
Farley, Inc., v. Bufkin, 159 Miss. 350; Halliday v. Md. Casualty Co., 115 Miss. 56; Moore Stave Co. v. Wells, 111 Miss. 796; Heralds of Liberty v. Rankin, 94 So. 849; Rodgers v. Kline, 56 Miss. 808; Hennessey v. Traders Ins. Co., 87 Miss. 259; 119 Miss. 85, 80 So. 491; Nat'l Shutterbar Co. v. Jimmerman, 73 A. 19; Walker v. Hawley, 16 A. 674; Hopkins Chemical Co. v. Reed Drug Co., 92 A. 478; Pollard v. Lyon, 91 U.S. 225; Dooling v. Budger Publ. Co., 140 Mass. 258; Boynton v. Shaw Stocking Co., 146 Mass. 219, 15 N.E. 507; 3 R.C.L.S. p. 646 and 371; 17 R.C.L. 265; Yackovicze v. Valentukevicious, 84 Conn. 350; McKenney v. Carpenter, 141 Pac. (Okla.) 779; Sherman v. Dunn, 114 Pac. (Okla.) 617; Hanson v. Bristow, 87 Kan. 72.
Argued orally by S.B. Laub, for appellant, and by J.M. Kelley, and E.H. Ratcliff, for appellee.
Appellant filed the bill in this case in the chancery court of Adams county against appellee, a nonresident of this state, to recover the sum of fifty thousand dollars, damages alleged to have been suffered by appellant on account of a libelous publication having been made of and concerning appellant by appellee. The chancery court acquired jurisdiction upon the ground that the proceeding was a foreign attachment in chancery, in which there were resident garnishees alleged to have been indebted to appellee, or having in their custody effects belonging to appellee. There was a trial on bill, answer, and proofs, resulting in a final decree dismissing appellant's bill. From that decree appellant prosecutes this appeal.
The alleged libel consists in the publication in the Arkansas City Daily Traveler, a newspaper of Arkansas City, Kan., under date of August 31, 1929, of the following interview had by a reporter of that paper with appellee.
"Mix Declares `Talkies' are Step Backward and Short-Lived Novelties. Talking pictures are a step backward in movie productions and are short-lived novelties in the opinion of Tom Mix, western movie hero, who is in Arkansas City today as the featured member of the Sells-Floto Circus.
"`The stage and spoken drama had been in existence for centuries,' Mix pointed out. `Then came the movies. They filled a need of the people for portrayed action without the tiresomeness of listening to and interpreting spoken lines. Recreation is a necessity and the more restful it is, the better. Silent movies are restful. Talking pictures are not. They've simply been crammed down the public's throat as a stunt and they won't last long because the public won't stand for them.
"`Silence is the thing most sought today. Already it is declared that great minds converse mentally without the medium of sound. One hundred years from now all conversation will be by mental telepathy. The radio, the telephone and telegraph are inventions that are helping it.
"`We Americans are leading the world in bringing about the elimination of speech. We speak abruptly and often harshly, but nevertheless to the point.
"`The whole idea of business is "get to the point." Silent dramas have helped a lot in showing that conversation is unnecessary, but talking pictures are bringing a lot of rigmarole back into play.' Tom Mix received the Traveler representatives in his private pullman car near the station. He was dressed in a picturesque cowboy costume, tight duck pants and white silk shirt, having on it his monogram of a diamond in which T.M. is inscribed. A bright sash was looped in his belt. Incidentally he wore his $35,000 diamond ring.
"He wore red slippers but close at hand were the spurred boots and the white ten-gallon hat.
"He wasn't eager to talk about talking pictures. He has a certain patter on his philosophy of life that he feeds news reporters. `I don't like publicity,' he said. `I'm a public servant in a way and like to please the majority of folks. But when I slip off to some kids' hospital to shake hands with the youngsters, I don't give out any advance notice nor try to get my pictures in the papers and that sort of thing.
"`If I did people would resent it. I try to please the majority of people. That's why I'm in the circus now. I get an opportunity to please more kids by the personal touch than I would in the movies. I've been in pictures for twenty years. I may go back. It's up to the public.'
"`And did you believe that you would have opportunity to please more people by joining this circus than the 101 Ranch show?' the reporter ventured.
"Mix apparently would rather have not mentioned the 101 Ranch deal. He dismissed it by saying in the abrupt harsh way that he so advocates, `That was simply a nightmare of Zack's. I never considered any contract with the 101 Ranch.'"
The particular language of the interview alleged to have been libelous consists of the last two sentences, which are as follows: "That was simply a nightmare of Zack's. I never considered any contract with the 101 Ranch."
The 101 Ranch Wild West Show was, at the time of the alleged libel, a Delaware common-law trust. Appellant was the manager of the show, and owned an undivided one-third interest in it. But its assets were under a lease to the Western Shows Company, a Delaware corporation.
Appellee was a moving picture actor and circus performer, well known in the circus and moving picture world. Some time before the alleged libel, appellant, as general manager of the 101 Ranch Wild West Show, claimed to have employed appellee as a performer in the show, at a salary of $10,000 a week; appellant claimed that appellee breached the contract. The last two sentences in appellee's interview, published in the Arkansas City Daily Traveler, apparently have reference to that matter.
The evidence showed that the interview was published and circulated in the state of Kansas — there was no evidence to show that it was published or circulated in this state. The governing principles of law, therefore, are those of the state of Kansas, and not of this state. 37 C.J., p. 19, section 320; 17 R.C.L. 371.
Unless the language used in the newspaper interview was defamatory per se, there is no cause of action unless special damages are pleaded and proven; and in determining whether the interview is libelous per se, the headlines, as well as the body of the article, must be taken into consideration. Each statement must be considered in connection with the others, and the whole fairly and reasonably interpreted. Jerald v. Houston, 124 Kan. 657, 261 P. 851; Stone v. Hutchinson, 125 Kan. 720, 266 P. 78, 58 A.L.R. 718. And innuendo cannot make libelous words which obviously are not libelous. Jerald v. Houston, supra.
Now, applying these principles to the case in hand, we think it manifest that the language, "That was simply a nightmare of Zack's. I never considered any contract with the 101 Ranch," was not libelous per se. It doesn't even appear to be an unfriendly statement. On its face it bears no evidence whatever of malice, and we are unable to see how the language could be made libelous by innuendo, without placing an interpretation upon it which it will not bear. The language could have meant nothing more than that appellant was mistaken in claiming that he had a contract with appellee to perform with the 101 Ranch Show.
And furthermore, as we view the evidence, appellant failed to prove that he suffered any special damages. Any damages suffered by the 101 Ranch Wild West Show, or its lessee, the Western Show Company, would not be damages for which the appellant would be entitled to recover in his own right, although he might have been financially interested in the welfare and success of both of those companies.
Affirmed.