Lambert v. Cowles , 76 Wash. 200 ( 1913 )

Parker, J.

The plaintiff seeks damages which he alleges resulted to him from a libelous publication made by the defendant in the Spokesman-Review, of which newspaper he is the publisher. A trial in the superior court resulted in a verdict and judgment in favor of the defendant, from which the plaintiff has appealed.

The principal contention made by counsel for appellant is that respondent’s plea of justification, alleging the truth of the alleged libelous statement, was not sufficient to permit the introduction of evidence in support thereof, and that the trial court erred in overruling the demurrer thereto. The only allegations of the complaint we need notice are the following :

“That heretofore, on, to wit, the 23rd day of February, 1911, defendant in said paper published of and concerning the plaintiff a certain article in words and letters as follows:

“ ‘No Member of the City Council Should be Elected Commissioner.

“ ‘The records of such public officials as are candidates for commissioner prove or disprove their fitness for the position.

“ ‘Judged by this test Messrs. Lambert, Belshaw, Funk, Gray and Mohr ought not to be chosen.

“ ‘Mr. Lambert has been the main spring of the chaos and maladministration that have misruled at the city hall for two years.

“ ‘He and his active followers have been the friends of favored contractors, special and other interests. They have wasted public funds and opposed strict enforcement of the laws for the regulation of the liquor traffic. . . .’

“That the following portions of said article were and are wholly false and defamatory, to wit, ‘He and his active followers have been the friends of favored contractors.’ ”

The allegations of the answer here involved, by which respondent sought to justify the publication, are as follows:

“That the matters and things set forth in the article mentioned in plaintiff’s complaint, and the matters and things therein complained of as libelous, are, and each of them is, in fact true.

“That the article was and is true in this, that the plaintiff was at the time of the publication of the article complained of a close friend of James Broad and James Smythe, that at the time of the publication of said article, and prior thereto, said James Broad and James Smythe and the Smythe Plumbing Company were favored contractors of any by the City of Spokane and secured contracts without the usual requirements and not in accordance with the ordinances or charter of the city of Spokane, that the Smythe Plumbing Company was at said time, and prior thereto, controlled by the said James Smythe, that the said contractors secured contracts from the city at exorbitant prices, and were paid therefor sums largely in excess of the reasonable value and largely in excess of the estimate of the city engineer.”

This affirmative matter in the answer was demurred, to by appellant upon the ground that it “fails to state facts sufficient to constitute a defense- to this action.” No other ground of demurrer was stated. This general demurrer being overruled by the court, appellant replied admitting that he was a friend of Broad and Smythe, and that they had received numerous contracts from the city, but denied the allegations of the answer that they were favored contractors or were paid excessive and unreasonable sums for their work.

Counsel for appellant invoke the common law rule as stated in Newell, Slander and Libel (2d ed.), p. 651, § 69:

“At common law the plea of justification must be pleaded with the greatest precision. It ought to state the charge with the same degree of certainty and precision as is required in an indictment. The object of the plea is to give the plaintiff, who is, in truth, an accused person, the means of knowing what are the matters alleged against him.”

Even if this be the general rule at the present time in this state, which may well be doubted in view of our liberal rules of pleading, we think it is not of practicable application where, as in this case, the language of the alleged libel does not impute to appellant the commission of a crime. The particular language here relied upon as libelous is, “He and his active followers have been the friends of favored contractors, special and other interests.” The other language of the published article is given but little attention in the argument of counsel for the appellant; but viewing the language here complained of, even in the light of the other language used, we are unable to see that it either charges or imputes to appellant the commission of a crime, though it may be regarded as libelous in that it imputes to appellant actions and motives on his part tending to bring him into direpute. The published language complained of being general, in so far as it imputes to appellant wrong actions and motives, it was necessary for respondent in his plea of justification to state facts showing its truth. This, we are constrained to hold, he has done with sufficient particularity to satisfy our rules of pleading in civil actions. In the case of Barrows v. Carpenter, 1 Clifford 204, 209, Justice Clifford of the supreme court of the United States, while sitting in the circuit court of Rhode Island, observed:

“Courts of justice agree that a plea of justification, in actions of libel and slander, must contain a specific charge set forth with certainty and particularity; and it is sometimes said that the plea ought to state the charge with the same precision ás in an indictment. To maintain an action of libel, however, it is not necessary that the publication should impute an actionable offence to the plaintiff. Any writing, picture, or sign which derogates from the character of an individual, by imputing to him either bad actions or vicious principles, or which tends to diminish his respectability and abridge his comforts, by exposing him to disgrace and ridicule, is actionable without proof of special damage. Cooper v. Greely, 1 Den. 363; Clark v. Binney, 2 Pick. 115. When the charge is general, the defendant is required to state the substantial facts which constitute its elements; and when that condition is fairly fulfilled, he has done all that the law requires to maintain his plea.”

These remarks were made by the learned justice nearly fifty years ago when the rules of pleading were much less liberal than at present in this state. It is not possible to measure with exactness the extent to which a defendant in a libel case must go in pleading facts showing justification. We think, however, the stating by respondent, as in this case, that appellant was a close friend of Bi’oad & Smythe, that they were favored contractors and secured contracts without the usual requirements, and .not in accordance with the ordinances or charter of the city, and secured exorbitant prices and were paid sums in excess of the reasonable value of the work done and largely in excess of the estimates of the city engineer, was a pleading of sufficient particularity to enable respondent to meet the charges made against him by the general language of the alleged publication; at least, as against a general demurrer, that being the only manner in which the plea of justification was attacked. Just what the appellant might have been entitled to upon a motion for a more specific statement of the defense of justification, is a matter with which we are not here concerned. The following decisions, though not all directly in point, we think lend support to our conclusions: Stark v. Publishers, Knapp & Co., 160 Mo. 529, 61 S. W. 669; Dever v. Clark, 44 Kan. 745, 25 Pac. 205; Hauger v. Benua, 153 Ind. 642, 53 N. E. 942; Kuhn v. Young, 78 Tex. 344, 14 S. W. 796; Fenstermaker v. Tribune Pub. Co., 12 Utah 439, 43 Pac. 112, 35 L. R. A. 611.

Some contention is made by counsel for appellant that the evidence introduced was insufficient to sustain any finding in favor of the respondent upon his plea of justification. An examination of those portions of the record to which our attention has been called convinces us that we would not be warranted in interfering with the verdict of the jury on this ground. 'Other contentions, we think, are without merit and do not call for discussion.

The judgment is affirmed.

Crow, C. J., Mount, and Main, JJ., concur.

Fullerton and Morris, JJ., concur in the result.