Opinion
Decided May 11, 1934.
Libel — Publication sufficient, when — Knowledge of third person that statement in writing — No necessity of having read, or opportunity to read, when.
The publication of a libel is accomplished by A. if he writes or has written a libelous statement concerning B., informs a person other than B. that he is about to read such writing, and reads same aloud to such person, who listens to the words and understands them, although said third person does not read and has no opportunity to read said writing.
ERROR: Court of Appeals for Lorain county.
Mr. F.M. Stevens and Mr. H.H. Hoppe, for plaintiff in error.
Messrs. Deutsch Dilgren, for defendant in error.
Leo J. Myers brought an action seeking damages for defamation of character against the Ohio Public Service Company, a corporation, in which he alleged, in his amended petition, that the corporation was engaged in the business of selling electrical energy for domestic and business consumption, and that, on or about the 13th day of October, 1932, the company, through its general manager, at a public meeting held in the town hall of Amherst, Ohio, which was attended by 300 people, uttered and published, by reading a writing of and concerning plaintiff, the following words:
"Mr. Myers (referring to the plaintiff) is a foe of the utilities and has gone all around the county holding meetings of this kind (meaning the plaintiff was or had been responsible for, or instrumental in, organizing meetings similar in purpose to the meeting being then and there held, in other parts of the county). He is in financial straights and can be bought by any utility for a few thousand dollars (meaning that the plaintiff was desperate for money and for a few thousand dollars, paid him as a bribe, would sell and exert his influence in behalf of a utility irrespective of his honest opinion of the merits of the utility's project or purpose)."
Myers also alleged that the statements were false and untrue and known to be false and untrue by the company, and were published by the company with actual malice towards Myers and with the intent and for the purpose of injuring him in his reputation, his feelings and his business.
Myers also alleged that his business was that of an electrician and electrical contractor, and that he was deservedly held in great credit and esteem by his neighbors and by those with whom he had dealings in his trade and business, and that he thereby daily acquired gains and emoluments in his trade and business, and that by reason of the publication of the statements by the company he sustained damage in the amount of $25,000, for which he prayed judgment.
The company answered the petition by admitting that it was a corporation and engaged in such business, and denied each and every other allegation in the amended petition.
Upon trial of the cause to a jury in Common Pleas Court, Myers recovered a judgment against the company in the sum of $5,000.
The record discloses that there is very little dispute in the evidence relating to most of the facts which are material in the consideration of the alleged errors claimed by the company in this error proceeding.
The company furnished electrical energy to consumers in various villages and cities in Lorain county and elsewhere, either directly to the consumers or to municipalities owning and operating distributing systems, and under the law the municipalities had to agree to the rates to be charged by the company, and the public was therefore interested in any such agreement made by a municipality with the company.
Myers, a lifelong resident of Elyria and an electrical contractor, was opposed to the rates charged by and practices of the company, and either upon request or voluntarily advised public officials against the acceptance of propositions made by the company in its dealings with the public.
In September, 1932, the company received an unsigned letter from Elyria containing statements reflecting upon the character of Myers, and it made photostatic copies of the letter and sent such copies to its general manager in Cleveland. The general manager then selected and marked certain parts of such anonymous letter referring to Myers, and caused his stenographer to make typewritten copies thereof and sent such copies to the local managers of the company in the cities of Lorain and Elyria. This was done sometime before October 13, 1932, the time mentioned in Myers' amended petition as the date of the publication of the defamation of his character. (A copy so made by the general manager of parts of such anonymous letter was introduced in evidence and will be later set forth in this opinion.)
The company proposed to the village of Amherst, Lorain county, Ohio, that it sell its distribution system to the company, and requested a meeting of Amherst business men to whom its general manager could explain the proposition, and a meeting to which the public was invited was arranged for October 13, 1932, and the general manager was apprised of such arrangement.
The general manager, expecting that Myers would be at such meeting, took with him to the meeting one of the copies of parts of the anonymous letter which he had had his stenographer make.
After the general manager had addressed the public meeting, at which some 300 persons were present, Mr. Myers was requested by a business man of Amherst to address the meeting and he did so, and opposed and criticised the company.
When he had finished, the general manager arose, and although he had made no investigation whatever as to the truth or falsity of the statements made in the copy of the parts of the anonymous letter, he read it to the audience, and told the audience that he was reading from extracts he had had made from the anonymous letter.
This statement of the acts and conduct of the general manager, and as to what he read, is based upon his own testimony.
Some of the witnesses for Myers testified that the language used by the general manager in so reading was slightly different in parts from the copy introduced in evidence, but the various versions of the reading are in effect substantially the same, and for the purpose of determining the questions urged in this case, we will assume that the copy in the record was read just as it appears. It is as follows:
"Much talk has been going on in Elyria, Amherst, Lorain and Oberlin for municipal light plants. In Elyria the council has authorized the required amount for the services of an electrical engineer. This was done after the committee of the council made many reports upon the rates as charged by the O.P.S. This data was not compiled by any council member but by a man who has lived in the county all his life. Anyhow the compiled reports by him made public has broke the ice in this county for municipal plants.
"Now this same man is now organizing a county set-up and in Lorain he has got the same action before the council as in Elyria. In Amherst he has made arrangements for a large mass meeting and plans are being laid for a county municipal league. This man due to many connections holds a big stick around here.
"The city of Elyria has set aside a sum of money for an electrical engineer, it's before the council in Lorain, and in Amherst he is to take a leading part as an advisor to the citizens committee. In Elyria he has the school board now making a fight for lower rates. It's not the few councilmen that should be bought off, it's this man who is the guiding element in the entire county who should be handed something.
"This man is a member of most of the organizations, including the American Legion, and does hold an important position throughout this county as a molder of public opinion.
"This man's name is Myers, he lives here in Elyria. As I understand it, due to his army service his doctor has ordered him out to Arizona for his health, he is a married man with a small family. His doctor insists he go west at once, but I do know it's a matter of money with him to get there. Some engine company is to give him a nice bonus in case any one of these towns build their own light plant. I have a friend who has been keeping me wise to all that takes place, he knows Mr. Myers very well and he tells me that since he has been ordered west, it would not take much to get him out of the picture.
"This man Myers can be bought off or induced to go west. Now let's have some action with this man from the N.Y. office. What in hell is a few thousand dollars to protect many hundred thousand."
We hold that there is no substantial difference in the language of the copy and the meaning conveyed and intended to be conveyed thereby, and the language alleged and the meaning claimed, as set forth in the amended petition of Myers, and therefore it was not error for the court to overrule the motion of the company for judgment, made at the close of the evidence, on the ground of failure of proof of the charge in the very words of the charge. Barnett v. Ward, 36 Ohio St. 107, 38 Am. Rep., 561.
The important contention of counsel for the company is that the company published a defamation which constituted at best only a slander which was not actionable without proof of special damage, and that therefore the court erred in not directing a verdict for the company.
In considering this contention, we are assuming that merely speaking the words complained of would not be actionable in Ohio without proof of special damage, and also that no special damage was proved; but in Ohio, as elsewhere, as to the right of recovery without proof of special damage, there is a well-recognized difference between words spoken and matter that is written and published concerning a person. Watson v. Trask, 6 Ohio, 531, 27 Am. Dec., 271; Tappan v. Wilson, 7 Ohio (Pt. 1), 190; State v. Smily, 37 Ohio St. 30, 41 Am. Rep., 487.
It is stated, in substance, in many cases that written words which naturally tend to expose the person, concerning whom the same are published, to public hatred, contempt or ridicule, or deprive him of the benefits of public confidence or social intercourse, constitute a libel, and that an action will lie therefor although no special damage is alleged.
"When the authorities are carefully considered in the light of a sound public policy we think that to come within the rule permitting recovery, without proof of special damages, the printed words of ridicule or contempt must relate to matters which are required either by the moral code or the law of the land, liberally and not technically construed." Holloway v. Publishing Co., 11 Ohio App. 226, at page 231.
The language used by the company at the meeting at least clearly relates to matters that are required by the moral code, and when considered in connection with the circumstances under which it was used, its meaning, to those who heard it, is apparent and unmistakable; furthermore, it is no defense that the general manager stated that the writing prepared by his direction and read by him was taken from an anonymous letter, nor the fact that he said he did not know Mr. Myers but that he had "heard something about him, about his activities, and * * * wanted the people at the meeting to have the same information about Mr. Myers that I had." His evidence does not indicate that he said or did anything to discourage the audience from believing the charges read; on the contrary, it is apparent from the record that the only object in reading the charges was to have them believed. Therefore, if what the company did constituted libel, as distinguished from slander, then there was a right of recovery without proof of special damage.
The amended petition charges that the company maliciously "uttered and published, by reading a writing," certain defamatory statements about Myers, which were untrue and known to the company to be untrue. Can one publish a writing, prepared by him, by telling an audience what the writing is and that he proposes to read it, and then, in full view of the audience, reading the writing, or, to constitute a publication of the writing, must he give or send it to someone or show it to someone who reads it?
It is urged that to constitute a publication of a libel some person other than the person libeled must have read or at least have had an opportunity to read the libelous writing, and in support of the proposition, language taken from some Ohio cases is quoted which indicates that the reason why words written and published constitute libel, as distinguished from slander, is because they are embodied in a more permanent and enduring form; and then it is urged that there can be no publication of a writing unless it is seen and read, because "It is the circulation and distribution of the writing which puts the alleged defamatory words in a more permanent and enduring form, for certain words read without a distribution of the writing are in no more permanent form than words not written but spoken."
The authorities dealing specifically with this question do not support the proposition that where one prepares or has prepared a libelous writing it is not published unless read by someone other than the person referred to therein; on the contrary, one who so prepares a libelous writing may publish the same by reading it to some third person who listens to the words and understands them and is told by the reader that he is reading a writing so prepared by him.
Scandalous Libels Case, 5 Coke Rep., 125a, 77 Eng. Rep. R., 250; John Lamb's Case (1610), 9 Coke Rep., 59b, 77 Eng. Rep. R., 822; Johnson v. Hudson Morgan, 7 Adolphus Ellis, 233; Odgers on Libel and Slander (6th Ed.), pp. 131-138 and 144; Adams v. Lawson, 17 Gratton (Va.), 250, 94 Am. Dec., 455; Forrester v. Tyrell, 9 Times L.R., 257 (C.A.); Sorensen v. Wood, 24 Neb. 348, 243 N.W. 82, 82 A.L.R., 1098; Snyder v. Andrews, 6 Barb. (N.Y.), 43; Gambrill v. Schooley, 83 Md. 48, 52 L.R.A., 87, at p. 91; Miller v. Butler, 6 Cush. (60 Mass.), 71; Miller v. Donovan, 39 N.Y. Supp., 820; McCoombs v. Tuttle, 5 Blackford's Rep. (Ind.), 431; Hedgpeth v. Coleman, 183 N.C. 309, 111 S.E. 517, 24 A.L.R., 232; Peterson v. Western Union Tel. Co., 72 Minn. 41, 74 N.W. 1022.
The anonymous letter is a part of the bill of exceptions, but the trial court sustained the objection to its introduction in evidence.
The record discloses that the general manager selected and marked the parts of the anonymous letter which he caused to be written; he left out of the writing prepared under his direction parts of the original which showed the anonymous writer's interest and which might tend to cast doubt upon the truthfulness of the charges against Myers. By copying only a part of the original, the general manager made the writing he had prepared his writing: a writing differing from the original even if the parts copied had been correctly copied, let alone where they were not, as in this case; he therefore prepared the writing which he read at the meeting and which he sent to his two district managers in Lorain county, and it was distinctly his writing and not the writing of the author of the anonymous letter.
On the whole record we are of the opinion that the jury was fully warranted in finding that, acting for and on behalf of the company, the general manager wrote and published the defamatory matter concerning Myers contained in the writing, which, as we have already said, was in substance and effect what was charged in the petition, and that the publication was libelous and that recovery could be had without proof of special damages.
It is also urged that there was misconduct of counsel for Myers. Such claimed misconduct relates to the anonymous letter: the attempt to cross-examine the general manager in reference to it, the attempt to get it in evidence, and the reference to it in argument; all of such claimed misconduct occurring after the general manager had testified that what he read he copied from the original.
Counsel for Myers were seeking to show that the writing that was read was not correctly copied from the original, in that parts of paragraphs and of sentences within the part copied were omitted — which, if shown, would have had a direct and legitimate bearing upon the issue of the good faith or actual malice of the company, as well as demonstrated that the writing which was read was not the same as the parts of the original letter claimed to have been copied, and was therefore the writing of the general manager and not of an anonymous writer.
We have made the comparison and we think that counsel for Myers were right and should have been permitted to develop such claim by cross-examination, and, if necessary, to introduce for comparison a true copy of the parts of the original letter claimed to have been copied.
On the record as it is, we do not find that there was misconduct on the part of counsel for Myers which would warrant the court in granting a new trial on that ground.
As to the claim of excessive damages, it must be borne in mind that, in actions for libel, where the facts are such as to permit the jury to include exemplary damages in the verdict, the reviewing court will not interfere on the ground of excessive damages unless they are so gross as to indicate that the jury "acted from corruption, mistake, undue bias, or some improper influence." Fisher v. Patterson, 14 Ohio, 418.
"In an action for slander a new trial will not be granted, on the ground of excessive damages, unless the amount be so large as to evince prejudice, partiality, or corruption in the jury." Simpson v. Pitman, 13 Ohio, 365; and, to the same effect, Gatley on Libel and Slander, page 719, and Newell on Slander and Libel (3rd Ed.), Section 1065.
In the case at bar there is nothing in the evidence indicating that Myers is unworthy or lacking in character and standing, and there was evidence indicating actual malice on the part of the general manager acting for and on behalf of the company — at least there was a total disregard of Myers' rights, apparently without any justification.
The jury was justified in finding that the charge was deliberately made and was of such a serious character as to injure a sensitive, honest citizen, and we are unable to reach the conclusion that the damages assessed are "so flagrantly outrageous and extravagant as to show that the jury acted corruptly, or under the influence of passion, partiality or prejudice," and on the whole record we find no evidence that the jurors were actuated by any unworthy motive.
Judgment affirmed.
FUNK and STEVENS, JJ., concur.