In Manasco v. Walley, 216 Miss. 614, 63 So.2d 91 (1953), this Court had occasion to examine the ingredients of a defamation.Summary of this case from Gulf Pub. Co., Inc. v. Lee
February 23, 1953.
1. Libel and slander — newspaper article — elections.
A newspaper article although unjustly critical of the action of a member of the Legislature, who is a candidate for reelection, is not actionable under the cited statute when it is not such as to reflect upon the honesty, integrity or moral character of the plaintiff candidate, nor is the publisher required in such case to print the reply of the candidate. Sec. 3175, Code 1942.
2. Libel and slander — newspapers — article reflecting on candidate — duty to print candidate's reply — statutes.
In the statute which requires a newspaper to print the candidate's reply to any editorial or other article in the paper which reflects upon the honesty and integrity or moral character of any candidate, the word "reflect" means to cast aspersion or reproach; "honesty" means fairness and straightforwardness of conduct, integrity, freedom from fraud; "integrity" means moral soundness, freedom from corrupting influence or practice, and "moral" means righteous or upright. Sec. 3175, Code 1942.
3. Libel and slander — defamatory communications, requisites of.
In order to constitute defamation the alleged libelous matter must assail the integrity and moral character of the injured party in language which tends so to harm the reputation of the latter as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
4. Libel and slander — defamatory words.
Words, in order to be defamatory per se, must be susceptible of but one meaning and that an opprobrious one.
5. Libel and slander — publication as a whole and language as commonly understood.
In determining whether a publication is libelous, it must be considered as a whole, and its meaning ascertained from the language used as commonly understood.
6. Libel and slander — elections — statutes.
The penalty of the cited statute is not directed against the publication of an article which contains misstatements of facts concerning a candidate for public office, unless such misstatement of facts reflects upon the honesty, integrity or moral character of the candidate. Sec. 3175, Code 1942.
7. Libel and slander — penal statute.
The provisions of the cited statute are penal in their nature and the statute should be strictly construed. Sec. 3175, Code 1942.
8. Statutes — liabilities which did not exist at common law.
Statutes creating liabilities which did not exist at common law are not to be extended beyond the plain intent of the words of the statute and such words must be given their usual and ordinary meaning.
9. Libel and slander — clear and unambiguous language — duty of court respecting.
Where, in an action such as mentioned in the foregoing headnotes, the language complained of is clear and unambiguous, it is the duty of the court to determine whether it is actionable, either per se or per quod.
Headnotes as approved by Kyle, J.
APPEAL from the circuit court of Greene County; JESSE H. GRAHAM, Judge.
Frank Clark and Collins Collins, for appellant.
The statute sued under says the article must reflect upon the honesty or integrity or moral character of the candidate. It is our contention that the article does not reflect upon plaintiff's honesty or integrity or moral character. Read again the article; notice how the defendant puts it: "We may be `old-fashioned' in our way of thinking, but we believe the only way you can build highways . . . etc." Only an "old-fashioned" opinion expressed; no abuse, no question of defendant's opinion being in good faith; just two men differing in the way to build roads.
He then says: "If Walley wanted to serve the best interest of Greene County why was these highways removed from priority?" Only a question asked; no reflection upon his honesty and integrity, or moral character.
Walley in his reply and in his testimony admitted that the Legislature was divided in opinion on the question, and no dishonesty or lack of integrity on either side. He admitted that he was on the Vacation Committee that fixed the status of the two roads in question, and he believed it was fixed right by them; no lack of honesty or integrity or moral character, just an honest difference of opinion; that is all.
So plaintiff himself found nothing wrong with either viewpoint and charged no wrongdoing either way. How could this statement reflect upon his honesty and integrity or moral character so as to draw $1,500.00 from the till of this newspaper, which expressed only an "old-fashioned" opinion and asked an honest question; no abuse, no calling of names; just an honest opinion by a citizen put over against an honest opinion of another citizen about a public matter.
So we contend the article was not actionable. Hence, the defendant should have had a peremptory instruction.
David Gross and Melvin, Melvin Melvin, for appellee.
Before attempting to reply to the statements found in appellant's first contention the appellee would like to state that he does not understand exactly what position the appellant is taking in this contention.
1. Is the appellant now contending that as a matter of law the article in question did not reflect upon the honesty or integrity or moral character of the plaintiff, which is a point that appellant did not raise in the lower court by demurrer or, as now called, a motion to strike; made no mention of at the close of plaintiff's testimony in his motion for a peremptory instruction; requested no instructions on at the submission of the case to the jury; and did not specifically set out in his motion for a new trial or in his assignment of errors?
2. Or, is the appellant now contending that as a matter of fact the article in question did not reflect upon the honesty or integrity or moral character of the plaintiff, which is a matter within the province of the trial jury, which found adversely to him and is the appellant now seeking a second decision of a question of fact? Along this line of thought appellee desires to point out that in appellant's first contention, he does not say that the evidence was insufficient to prove that the article was a reflection but only makes the arbitrary statement in his brief that such was not a reflection. Appellant also made about the same contention in his reply to the declaration and these two instances are the only two ways that we hear from the appellant-defendant on the subject.
Now, in general replication to the literal purport of the first contention in appellant's brief, the appellee would like to direct the attention of this honorable Court to the language of the statute. The word "reflecting" stands out as of primary importance in any consideration of whether or not there has been a transgression of this statute. Patently, the newspaper does not have to carry out a full-fledged attack on the honesty, integrity or moral character of the candidate, nor does it have to vilify the plaintiff so as to hang him in semantic effigy.
It is only necessary that the article printed in the newspaper impute, or imply, or reproach, and/or censure or insinuate that the candidate should not be held in too high an estimation by the readers of the newspaper because of his competency, repute, judgment, freedom from fraud, faithfulness in the execution of a trust, loyalty to the things he should be loyal to, uprightness, incorruptibility, or truthfulness.
Is the appellant really serious in his contention that such an article was not a reflection upon the honesty, or integrity, or moral character of the plaintiff, Ben H. Walley?
Taking the article as an entirety it could only be such a reflection; but in order to understand the article as a whole it is necessary to comprehend the import of each sentence contained therein. Notice, in the first sentence of the first paragraph of the article there is stated the belief that the appellant has based his contention on. "We may be `old-fashioned' in our way of thinking, but believe that the only way you can build highways is to get them on the `priority list' while the state legislature is in session, and then they can be built when money is available for them."
Then, having set up such a prejudicial premise in the first paragraph of the article, the editor then proceeded to build upon this foundation. In the first sentence of the second paragraph, we find this statement: "If Representative Walley wanted to serve Greene County's best interests, why was these highways removed from `priority'?"
An "if" clause can be used to express many things in the English language such as time, contingency, event, possibility, etc., or as illustrated here, "doubt."
Keeping in mind the fundamentally false foundation of the first paragraph, this "if" clause and sentence can mean either one of two things: (1) "We doubt that Representative Ben Walley wanted to serve Greene County's best interest," or (2) "We doubt that Representative Ben Walley is capable of serving Greene County's best interest." Surely, and of a certainty either construction reflects that Representative Ben Walley was without sufficient honesty or integrity, or moral character to serve the best interests of Greene County.
By not allowing the candidate the privilege of replying to the reflection cast upon him in the newspaper, the candidate is denied an opportunity to get his reply before the people, the reflection in the newspaper is allowed to go unchallenged, except as the candidate injured may and must be able personally to combat the charge. Thereby, the newspaper would be allowed to exercise a great control and direction over the outcome of the election, as the whim of the editor-owner might move him, and such a control over the free democratic process of selecting our public officers by one man, or group of men is repugnant to, and transgresses all the concepts implied in a free people in a free election selecting the person of their choice for public office.
The jury, having heard all the testimony, felt that not only had the article reflected on Ben Walley's integrity, honesty, or moral character, but that the injury and damage that he had suffered had been much more than the statutory minimum. That jury knew that in Greene County when an individual is falsely said to have deliberately fixed two of the main roads in the county so that "they cannot be worked or paved now" such is a reflection on him and his honesty, integrity, or moral character. His judgment, competency, good repute, faithfulness to his trust, loyalty to his people, honesty in the discharge of his duties had been utterly denied by questioning whether or not he wanted to serve the best interests of Greene County and his people who had elected him to the office of representative.
Frank Clark and Collins Collins, in reply.
We all understand the words used in the statute, "reflecting upon the honesty, integrity and moral character." And we respectfully submit that we all know when language reflects upon a man's honor, making him dishonest; or upon his integrity, making him untruthful; or upon his moral character, making him immoral. After all, the article bears no import other than an honest difference of opinion. One citizen differing from another on a governmental question. We hear it every day over radio, and television, and read it in the newspapers.
On page 16 of appellee's brief he states that appellant made no attempt to prove the veracity of the statements in the article. We say in reply that the appellee himself said that he was a member of the legislative recess committee that fixed the status of the Leakesville-State Line road and Highway 63; that both of these highways were on what they called priority or on State's paving list; that the Leakesville-State Line road was taken off and put on State Aid list; that he thought that was better than being on State paving list; that the Leakesville-State Line road as now fixed would be paved ten years earlier than the State would pave Highway 63. In other words, the State Line road was in better shape by taking it off priority than was Highway 63, which was still on priority. (They called being on the list of roads to be paved by the Highway Department as being on the "priority list.") So according to these facts, Highway 63 was not removed from "priority list" but the Leakesville-State Line road was removed, and this was done by the recess committee advice and consent. The appellee said there was no question of any immorality or dishonesty about it at all; that it was just a case where honest men differed as to what was best. But appellee justifies his act in removing the State Line road from priority, arguing that it would be paved ten years earlier by this act.
Now the question is, was the statement by appellant that appellee had both roads removed from priority (whereas he only had one of them removed) a reflection upon the honesty, integrity or moral character of appellee? We think appellee answers the question himself in the negative. If it was the best thing to remove the Leakesville-State Line road from priority, certainly there could be no reflection upon Walley's honesty, integrity or moral character.
If it was best to remove the Leakesville-State Line road from priority, why would it not be best to remove Highway 63 from priority? According to the statements and admissions of appellee in the record, appellant accused him of doing the best thing for the two roads to get them paved the quickest, by accusing him of removing both of them from priority. So no reflection can be found under Walley's own statement.
It seems to us that the article, before it could be actionable under the statute, would have to be susceptible by interpretation of charging Walley with having done something that was morally wrong, or dishonest, or morally not upright. This article does neither. If it was better, and it was according to Walley's statement, to put the roads on the State Aid rather than on the State paving priority, how could appellant's charging him with doing it reflect upon the appellee? And that even though he changed only one of the roads?
Ben Walley, as plaintiff, recovered a judgment against W.E. Manasco, doing business as "The Greene County Herald," defendant, in the circuit court of Greene County, and from that judgment the defendant prosecutes this appeal.
The plaintiff's action was an action for damages for defamation based upon the provisions of Section 3175, Code of 1942. The plaintiff's cause of action arose out of the publication of an editorial in "The Greene County Herald" on March 23, 1951, criticizing the action of the plaintiff as a member of the State House of Representatives in voting for a bill, which was passed at the 1949 Special Session of the Legislature, providing for a redesignation of the highways on the state highway system, and providing for the removal from the list of state highways of approximately 5,000 miles of roads which had been theretofore designated as state highways, including the Leakesville-State Line highway in Greene County.
The plaintiff alleged in his declaration that at the time of the publication of the above mentioned editorial the plaintiff was a candidate for reelection to the office of State Representative in the Democratic primary election to be held during the month of August; that the editorial reflected upon the plaintiff's honesty and integrity and moral character, and that the defendant thereafter refused, when requested to do so, to publish a statement by the plaintiff giving the plaintiff's reply to the statements contained in the editorial complained of; and that as a result of the printing of the editorial and the refusal of the defendant to publish the plaintiff's reply the plaintiff had been damaged in the sum of $25,000.
The newspaper article complained of was set forth in full in the plaintiff's declaration and was as follows:
"LISTENING AROUND WITH YE EDITOR "Short Item of Interest to Citizens and Tax Payers of Greene
"We may be `old fashioned' in our way of thinking, but believe that the only way you can build highways is to get them on the `priority list' while the state legislature is in session, and then they can be built when money is available for them. Highway 63 and Leakesville-State Line Highways were on `priority' and during the 1950 session of the state legislature Greene County Representative Ben H. Walley had them taken off this list and they cannot be worked or paved now.
"If Representative Walley wanted to serve Greene County's best interests, why was these highways removed from `priority'? When state highway commission had issued a resolution to board of supervisors to take Leakesville-State Line highway over for maintenance and they had to rescind this resolution because these highways had been removed from priority. Leakesville-State Line highway was slated to be finished this year."
The defendant in his answer admitted that he had published the editorial, but denied that the editorial reflected in any way upon the honesty, integrity or moral character of the plaintiff; and the defendant denied that he was under any obligation to publish the plaintiff's reply; and the defendant denied that the plaintiff had been damaged as a result of the publication of the newspaper article.
On the trial in the circuit court the defendant was called as an adverse witness to testify for the plaintiff. The defendant testified that he was the owner and editor of "The Greene County Herald," and that he had written and published the editorial complained of. The defendant admitted that soon after the publication of the editorial the plaintiff had prepared and requested him to publish a reply, and that he had refused to publish the reply, giving as his reason therefor that he did not have sufficient space for the publication of same in his newspaper.
The plaintiff, testifying in his own behalf, stated that he was thirty-seven years of age and had been engaged in the practice of law at Leakesville since 1946; that he had served four years as a member of the State House of Representatives from Greene County; and that at the time of the publication of the above mentioned newspaper article he was a candidate for reelection and had one opponent. The plaintiff was questioned in particular by his own attorney about the statement that "Highway 63 and Leakesville-State Line highways were on `priority,' and during the 1950 session of the state legislature Representative Ben H. Walley had them taken off this list." And in answer to the question, Walley stated that there was no such thing as a `priority list,' and that he had not taken the above mentioned roads off the `priority' list. He was then asked about the next succeeding statement, "If Representative Walley wanted to serve Greene County's best interest, why were these highways removed from `priority'?" And in answer to that question, he stated that he considered that statement a reflection upon his honesty, integrity and moral character and his fitness to serve the people of his county as a representative in the state legislature.
The plaintiff then stated that State Highway No. 63 had been placed on the state highway system, as a road in the second group of state highways, by Chapter 190 of the Laws of 1936, and had remained on the secondary system of state highways until the enactment of Chapter 6 of the Laws of Mississippi, Extraordinary Session of 1949; that under the provisions of that act all differences in the classification of state highways were eliminated; and that State Highway No. 63 still retained its status as a state highway under the new act. He stated that the Leakesville-State Line road had been placed on the state highway system, in the secondary group of state highways, by Chapter 368 of the Laws of 1946, but that the status of that road had been changed under the provisions of the new act; that the Leakesville-State Line road had been taken off the state highway system under the provisions of the new act, along with approximately 5,000 miles of other roads, as a part of the plan which the Legislature adopted to reduce the total mileage on the state highway system from 13,500 miles to 8,600 miles and to create a system of state aid roads under the jurisdiction of the boards of supervisors to supplement the system of state highways; and that the Leakesville-State Line road had thereby been made eligible for improvement as a part of the new state aid road program. The plaintiff stated that he had served as a member of the Legislative Recess Study Committee which had devised the plan for the construction of the system of state aid roads provided for under the provisions of the new act. He stated that Greene County would be entitled to have 208 miles of state aid roads constructed as its share of the roads on the state aid road system, and that in his opinion the Leakesville-State Line road would be given top priority on the state aid road system. The plaintiff's testimony concerning the status of the two roads mentioned above under the new act followed closely the contents of the statement which he had prepared for publication as a reply to the newspaper article complained of and which the defendant had refused to publish.
The plaintiff testified further that, after the defendant had refused to publish his reply, he was forced to incur heavy expenses in attempting to counteract the harmful effects which had been produced by the publication of the false and misleading statements contained in the editorial; that he had handbills printed and distributed over the county, setting forth the facts concerning the changes made in the status of the two highways under the provisions of the new act; and that he spent several weeks traveling over the county for the purpose of contacting the people and explaining to them the facts concerning the status of the two highways. He stated that his law business had suffered as a result of the aspersions cast upon his honesty and integrity by the publication of the editorial.
Several other witnesses testified for the plaintiff for the purpose of showing that the publication of the editorial during the political campaign had provoked unfavorable comments among the people concerning the plaintiff's responsibility for the two roads losing their priority status and the failure of the state highway department to take over the roads for improvement as state highways.
At the conclusion of the plaintiff's testimony the defendant's attorneys made a motion to exclude the evidence offered on behalf of the plaintiff and for a directed verdict. The court overruled the motion. The defendant offered no testimony on his own behalf. Each of the respective parties asked for a peremptory instruction, which the court refused to grant; and the case was submitted to the jury upon the evidence presented by the plaintiff and the instructions granted by the court. The jury returned a verdict for the plaintiff, and judgment was entered thereon. The defendant filed a motion for a new trial, which was overruled; and the case is now before us on appeal from the judgment in favor of the plaintiff.
The first point argued by the appellant's attorneys as ground for reversal of the judgment of the lower court is that the newspaper article complained of did not reflect upon the plaintiff's honesty, integrity or moral character, and that the court erred in refusing to grant the appellant's request for a peremptory instruction. And, in view of the conclusion that we have reached on that point, it will not be necessary for us to consider the other points argued in the appellant's brief.
We think that the peremptory instruction requested by the appellant should have been granted. (Hn 1) In our opinion, it cannot be said that the newspaper article complained of reflected upon the honesty, integrity or moral character of the plaintiff.
The editorial complained of in the plaintiff's declaration shows very clearly that the writer of the editorial had only an imperfect understanding of the program of highway legislation, which had been enacted during the 1949 Special Session and the 1950 Regular Session of the Legislature, or the changes made in the status of the two highways mentioned in the editorial. State Highway No. 63, as the plaintiff stated in his testimony during the trial, retained its status as a road on the state highway system under the 1949 act, and was still a part of the state highway system at the time of the trial. The Leakesville-State Line road, which had been placed on the state highway system in 1946, as a road in the secondary group of state highways, like many other roads in the 82 counties of the State which had been added to the state highway system during the last fifteen years, was taken off the list of state highways under the 1949 act. By this change in its status the road was made eligible for improvement and paving as a state aid road under the state aid road program provided for in the new act. These facts were set forth in the reply which Representative Walley prepared and requested the editor to publish a few days after the editorial was published; and they were facts which should have been published in the interest of fair play, to correct the misleading impression that had been created by the garbled statements contained in the editorial.
But the plaintiff's action in this case, as shown by the pleadings, is based upon the statute, Section 3175, Code of 1942, and the statute does not require that the publisher of a newspaper make amends for an unjust criticism of a candidate for public office by printing the candidate's reply, except in cases where the editorial or news story reflects upon the honesty or integrity or moral character of the candidate. (Hn 2) It was clearly the purpose of the legislature to limit the provisions of the statute to cases in which the editorial comment or the news story is defamatory, and defamatory in a particular manner, that is to say, where the editorial or news story reflects upon the honesty or integrity or moral character of the candidate. The word "reflect," as that word is used here, means to cast aspersion or reproach. "Integrity," as defined in Webster's Unabridged Dictionary, means moral soundness, freedom from corrupting influence or practice. "Honesty" means fairness and straightforwardness of conduct, integrity, freedom from fraud. "Moral" means righteous or upright.
(Hn 3) "A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." A.L.I. Restatement of the Law, Torts, Vol. 3, par. 559. In order to constitute defamation, the alleged libelous matter must assail "the integrity and moral character of the injured party." Shaw Cleaners Dyers v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W. 231, 86 A.L.R. 839.
(Hn 4) "Words, in order to be defamatory per se, must be susceptible of but one meaning, and that an opprobrious one." 53 C.J.S., p. 43, Libel and Slander, par. 8 (a). (Hn 5) And, in determining whether a publication is libelous, it must be considered as a whole, and its meaning must be ascertained from the language used, as commonly understood. Sweeney v. Caller-Times Pub. Co., 41 F. Supp. 163.
In the case of Shields v. Booles, 238 Ky. 673, 38 S.W.2d 677, the court said that defamatory words, to be libelous per se, must be of such a nature that the court can presume as a matter of law that they do tend to disgrace and degrade the person, or to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned and avoided. And the Court in that case held that a newspaper article misrepresenting that a candidate for the office of State Senator, as a member of the Legislature, voted against repeal of the pari-mutuel law, was not libelous per se, and that where the words were not actionable per se, no damage could be implied.
The meaning of the editorial that we now have before us must be ascertained from the language used, as commonly understood; and it does not appear from the language used in the editorial that the writer intended to assail Representative Walley's integrity or moral character.
It is true that the appellant, through ignorance or negligence, as the appellee's attorneys charge in their brief, stated that Representative Walley had taken State Highway No. 63 off of "priority"; and that statement was untrue. But we do not think that it can be said that that statement reflected upon Walley's honesty, integrity or moral character. Whether true or false, it was in no sense defamatory, and it could not be made the basis of a suit under Section 3175, Code of 1942. (Hn 6) The penalty of the statute is not directed against the publishing of an article which contains misstatements of facts concerning a candidate for public office, unless such misstatement of facts reflects upon the honesty, integrity or moral character of the candidate.
Neither do we think that the question asked in the editorial, "If Representative Walley wanted to serve Greene County's best interests, why were these highways removed from `priority'?" can be said to have been defamatory. A majority of the members of the House of Representatives and a majority of the members of the State Senate voted for the bill which removed approximately 5,000 miles of roads from the state highway system. All of those roads served the needs of the counties in which they were located. Whether it was best for the people living along the routes affected to have those roads taken off the state highway system, so as to make them eligible for immediate improvement and paving under the state aid road program, was a matter about which there might be reasonable differences of opinion. Whether the Legislature acted wisely or unwisely in the matter was a proper subject for newspaper comment and criticism, and one might reasonably expect that during a political campaign, when members of the Legislature were up for reelection the question would be asked, Why were those roads taken off of the state highway system? The obvious answer to that question, from the standpoint of the legislators who voted for the bill, was that the members of the Legislature who voted for the bill thought that they were acting for the best interest of the people of the State as a whole, when they voted to reduce the total mileage of roads on the state highway system from 13,500 miles to 8,600 miles, in order that the state highway commission, out of its share of the state gasoline tax, might be able to maintain properly and improve and reconstruct according to modern highway standards, the main trunk line highways of the State, without being required to issue additional state highway bonds for that purpose.
(Hn 7) The provisions of Section 3175, Code of 1942, are penal in their nature, and the statute should be strictly construed. (Hn 8) Statutes creating liabilities which did not exist at common law, "although supposed to be founded on considerations of public policy and general convenience, are not to be extended beyond the plain intent of the words of the statute." Houston v. Holmes, 202 Miss. 300, 32 So.2d 138. The Court in interpreting a statute of this kind must look to the statute itself for the legislative intent, and the words of the statute must be given their usual and ordinary meaning. Section 3175, according to the language used, applies only in cases where the newspaper article complained of reflects upon the honesty, integrity or moral character of the candidate; and the Court cannot by judicial interpretation extend the liability imposed by the statute to cases involving other types of objectionable newspaper comment or criticism, which do not fall clearly within the language used in the statute.
(Hn 9) In an action of this kind, where the language complained of is clear and unambiguous, it is the duty of the court to determine whether it is actionable, either per se or per quod. 33 Am. Jur., p. 277, Libel and Slander, par. 294, and cases cited; A.L.I. Restatement of the Law, Torts, Vol. 3, par. 615; Note: Ann. Cas. 1917 B 432; Morhead v. U.S. Fidelity Guar. Co., 187 Miss. 55, 192 So. 300.
We think that the editorial complained of in the case that we have here did not come within the provisions of the statute, and that the peremptory instruction requested by the appellant should have been granted.
For the reasons stated above the judgment of the lower court is reversed and judgment rendered here in favor of the appellant.
Reversed and judgment rendered.
Roberds, P.J., and Holmes, Ethridge and Lotterhos, JJ., concur.