[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 213 The circular in question, on its face, is not a libel upon the plaintiff. It cannot be presumed from the nature of the words used, and it has not been proved as a consequence directly resulting from their use, that the reputation of the plaintiff has been injured either as a man or as a merchant. When construed according to their natural meaning they are innocent and harmless; and, as thus construed, they were not shown to be false. The use of characters in the body of the page to direct the attention of the reader to the margin or bottom thereof is common in many publications, and of itself can excite neither suspicion nor surprise. The plaintiff proved that such was the sole intention of the defendant in making use of the double stars in the publication complained of. The only innuendo alleged by the plaintiff states simply what the defendant meant, not what its subscribers or the public understood. There is no apparent ambiguity as to the meaning or application of the words. Without proof of extrinsic facts, the language of the publication, including the characters used, is capable of an innocent construction only. Standing by themselves they are incapable of a defamatory meaning. If there was a latent injurious meaning arising from facts known both to the defendant and its subscribers, which would reasonably lead the latter to understand the words in a secondary and defamatory sense, it was neither alleged nor proved. Words not libelous per se may become so from the connection in which they are used, or the circumstances under which they are published. The situation and surroundings of the most innocent expression may make it libelous, but they must be distinctly alleged and proved. The mere position in a newspaper of an advertisement apparently inoffensive, but surrounded by suggestive items, may make it a question for the jury whether it is libelous or not. (Zier v. Hofflin,33 Minn. 66.) *Page 216
Words are to be construed in the light of their surroundings, and, although harmless upon their face, if found in bad company, may, from that circumstance, be determined to have an injurious meaning. It becomes a question for the jury if there is any evidence of such extrinsic facts to be submitted to them. (Williams v. Smith, L.R. [22 Q.B. Div.] 134; Olgers' Libel and Slander, 113.)
The notification sheet in question contained many names, each with figures or characters printed opposite. If it had appeared that those figures and characters were parts of a cypher, understood or capable of being understood by the subscribers through a key furnished by the defendant, and that in each case, or even in many cases, they indicated that the person against whose name they stood had failed in business, or was preparing to fail, or was financially embarrassed, a case would have been presented for our determination quite different in its legal aspects from the one now under consideration. (Erber v. Dun, 12 Fed. Rep. 526, 532; Woodling v. Knickerbocker, 31 Minn. 268; Shepheard v. Whitaker, L.R., 10 C.P. 502; Capital andCounties Bank v. Henty L.R. [5 C.P.D.] 514; Ruel v.Tatnell, 29 W.R. 172.)
This appeal must be decided upon what was alleged and proved by the plaintiff, and not upon what might have been alleged and proved. On the record as presented, we think that it was the duty of the learned justice who presided at the Circuit to direct a verdict for the defendant. We have examined the exceptions relating to evidence, but in the light of the suggestions already made, it is obvious that none of them were well taken.
The judgment should be affirmed, with costs.
All concur, except BRADLEY and HAIGHT, JJ., not sitting.
Judgment affirmed. *Page 217