Before entering into consideration of the several assignments of error presented by this appeal, attention should be given to the status, character, personality, environment and past record of the parties to this litigation, as shown by the record and the matters of which the court and jury may have had the right to take notice, as elements of common knowledge.
The profession of the plaintiff is that of a radio broadcaster, employed for a number of years by one of the Cincinnati radio stations. One of his programs consisted of an early morning broadcast, originating at his farm some distance outside of the city of Cincinnati. As pointed out by counsel for the defendant, he lived in a modest way and his neighbors were those customarily found in an agricultural district. Much of what he said over the radio consisted of homely, intimate chats, in which he discusses with his audience matters of interest to the community, connected with the political, economic, and social welfare of the city, state and nation. In the course of his morning program, he was accustomed to describe the various incidents of farm life, the activity of the animals about the place, and even what his young children were doing and saying. In such broadcasts, it is apparent that he made no pretension to superior status over his listeners. The incidents applicable to the issue of fluoridation involving the plaintiff will hereinafter be considered.
The defendant has, for over a century, published a newspaper. It has a circulation of more than 200,000. It has been recognized as one of the outstanding publications in its field. It is to be found on the newstands, not only of the city of Cincinnati and vicinity but also on those of the principal cities of the state of Ohio and the nation. All through the history of this publication, it has been noted for its accuracy in reporting events, the high character of its literary style, and the fair, unbiased and tolerant character of its editorial comment. Such comment, during its history, has invariably been predicated upon well-established facts, ascertained by thorough investigation by a competent staff. To a vast number of its readers, its position, if not entirely conclusive, on matters political, economic, and social has had the greatest weight. The reputation and *Page 309 effect of the contents of the issue of the paper are, and were, undoubtedly known to the publishers of this outstanding newspaper.
On the morning of February 26, 1953, appeared the editorial and statement constituting the subject of this litigation. The readers of the defendant's newspaper must have been startled by the violent, vicious language of the articles in question, so entirely out of keeping with the customary restrained, fair and dignified comment found in the pages of the defendant's paper. Those readers must have wondered what could have caused such departure from the usual calm, fair comment appearing in the past. The reading matter was not a discussion of the issues, but a direct and vitriolic attack upon a man, whom also they had come to respect. The curiosity as to this change of type of editorial statement from such fair and impartial comment to personal attack is shared herein. An examination of the record discloses its cause.
It appears that the articles here involved were not submitted to the publisher of the Enquirer, Roger Ferger, because he was out of the city at the time, but were submitted to the assistant publisher, who had granted the request of one Hessler, an editorial writer for the defendant, to write the editorial. Hessler denies possessing any venom against the plaintiff. A reading of the matter involved belies this denial. It is stated in the record that certain changes were made in the editorial, after which it went to press without any further action by Hessler.
The controversy about the subject of fluoridation grew out of the declared intention of the council of the city of Cincinnati to fluoridate the drinking water of the city. The plaintiff became aroused over this proposal. It may be admitted that he became unduly so, and became also overvehement in presenting his views to his listeners, although, apparently, his apprehension was shared by the public of the city, who later voted down the project when the issue was submitted to the electors of the city. It is claimed by the defendant that the plaintiff was guilty of attacking the defendant in his broadcasts. Even if such comment had amounted to libel, this would not have been a defense to a libel by the defendant, although furnishing the basis for a *Page 310 cross-petition against the plaintiff. The record fails, however, to show any attack upon the defendant justifying the charge of its counsel to that effect.
A preliminary question presented to the trial court, and which this court is required to determine at the outset, is whether the articles involved are libelous per se.
This could have been done by the trial court at the very outset of the trial, for the text and publication of the articles claimed to be libelous per se were admitted in the pleadings by counsel in the opening statement. It can be done by this court, since the same situation applies here. The entire consideration here presented on this appeal depends upon the conclusion reached. The trial court ultimately reached the conclusion that the articles constituted libel per se. In this conclusion, I agree. My associates hold the opposite opinion. This results in a widely divergent approach to the issues to be considered.
Libel is the written attack or assault upon a man's reputation. Reputation is what people think or say about a man. Reputation is not character, for character is what a man is, and a libel can not affect character. Reputation applied to a man is much like good will as applied to a business. A good reputation may be destroyed by written statements about a man by a publisher of such statements having a reputation for integrity and possessing influence among those who read such publication. Probably no better statement of what is involved was ever made than that by Shakespeare:
"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls;
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name,
Robs me of that which not enriches him,
And makes me poor indeed." Othello, Scene 3, Act III.
The publication of a false, defamatory, written statement may be couched in such language that no evidence other than the words themselves is required to demonstrate their lethal effect upon the reputation of the object to which they are addressed. A mere reading of the text of the defamatory statement is sufficient to produce contempt in the minds of the reader *Page 311 of average intelligence. In other words, the language of the text is libelous per se. When such is the character of the defamatory statement, it is presumed that the person defamed has suffered an injury, and it is not necessary to establish special damages to his reputation. He is automatically entitled to a verdict finding the publisher of such false, defamatory statement liable in damages, unless such publisher has set up the truth of such statements as a defense and proved that his statements are true.
So, in an action based upon the publication of false, defamatory statements, the issues to be presented are:
(1) Did the defendant publish such written defamatory statements?
(2) Are the words employed of such a nature that a person of ordinary intelligence would hold the object of the publication in contempt and consider his reputation for integrity, decency, truth, or veracity impaired or destroyed?
(3) Are the statements true?
(4) Is the object of the publication entitled to more than mere nominal damages?
Malice has no part in such an action, at least as far as any burden on the plaintiff to prove it. Paradoxically, malice, if made known to the reader, may have a tendency to weaken the effect of the words employed. A statement made by one who is recognized as conservative, cautious in his statements and moderate in his comment will have much greater weight than one made by a person who is obviously motivated by anger, resentment and a vicious desire to injure.
In this case, the text of the libel and the publication are admitted, so that the first question in order is to determine whether the words employed are libelous in themselves — per se. It is a universal rule applicable to the publications involved, as well as to the construction of statutes, contracts, wills and other instruments, that, in determining the effect of such writings, the entire text should be considered as a whole. It may not be the effect of isolated statements that is entirely controlling. It is what is the effect of the entire composition that is presented for consideration. This principle is stated to be the law in the majority opinion. In this connection, I have no quarrel with the *Page 312 law cited and quoted by the majority of the court. I adopt all those as support for the legal conclusion herein expressed. Too much emphasis has been laid on certain portions of these authorities, and parts supporting the conclusions herein reached have been ignored. All agree that it is the duty of the court to determine the nature of the written words. Are they libelous per se, is for the court to unequivocally instruct the jury. In that duty, the trial court failed, for, although such instruction, defining the words as libelous per se, was included in the charge, other statements were made during the trial, in the general charge and in the language of the special instructions requested by the defendant, which, most surely, left nothing but confusion in the minds of the jury upon this question.
A reading of the authorities upon which the majority rely demonstrates that in determining the question of whether the words are libelous per se, any query as to whether actual damage was suffered by the plaintiff is beside the point. It is not whether the plaintiff suffered actual damage, but rather, were the words used of such a character that they would be reasonably supposed to cause damage to the reputation of the plaintiff? Some damage, therefore, is presumed from the publication of words constituting libel per se. How much damage is a question for the jury, but it must at least find nominal damages when the words are found to be libelous per se and untrue. The question of privilege is also a question for the court.
Turning then to the publications, their contents will be examined for effect, both as to the component parts and as a whole. The title of the editorial is, "Fluoridation: The Facts." The following statements, therefore, constitute a pronouncement of facts by the newspaper itself. It is not a news item. It is just as much the voice of the defendant as the later statement, so entitled. It is the pronouncement of a newspaper bearing the reputation hereinbefore noted. The reader might, therefore, have the right to presume that the statements, all the statements made therein were statements of facts, ascertained and examined after the customary employment of care, attributed to the publisher. In the very first lines of the editorial the writer develops the theme of the entire statement: "In the last few days we have had a very depressing demonstration of *Page 313 how much harm one newsbroadcaster can do in a community." (Emphasis added.) The publisher states that the plaintiff has caused harm to such an extent in the community, that "we" are confronted with a demonstration resulting in depression — dejection. The majority states that the "we" means the defendant or the writer of the editorial. I take it that "we" means the citizens of the community, of which the writer, obviously, thinks himself included. It is not an editorial "we," but rather an all-inclusive "we," as one will speak of a city, a state or a nation. That charge then is stated as a fact, for the editor is stating facts, according to the title of the editorial. Certainly, if one is charged with doing harm to a community, it can not be said that his reputation for integrity, truth and veracity is not impugned. It is apparent that what is to follow is not to be applicable to the abstract subject of fluoridation, but to the news broadcaster — the plaintiff — mentioned by name in the next line, the harm-causing Tom McCarthy of WKRC.
He is then charged with efforts to create distrust of the authorities, with misrepresenting the facts. The word, "misrepresent," denotes falsity, an intention to mislead, a knowledge of the truth and a purpose to conceal or distort it. Can it be said that those words in themselves are not an assault upon the plaintiff's reputation for honesty and integrity, truth and veracity as a news broadcaster? By misleading statements, he has caused widespread fear of death, of cancer, of tooth decay. He is not charged with mere error, with being mistaken, but, again, the charge is that he has misled the community. A willful wrong, an active desire to cause erroneous conclusions, which the plaintiff knew had no foundation in fact; this is the significance of the word, "misleading." He has set himself against the welfare of the community, not only in this instance, but as a part of a course of action. This is the worst of his misdeeds, states the editor. Then follows a statement of what the writer considers the facts about fluoridation, which he stated at the trial were obtained from the news items furnished by the reporters employed by the defendant.
Following this statement of facts, the writer, in so many words, charged the plaintiff again with concealing from the public facts which to him were well known — "for reasons quite *Page 314 his own." Again, he is charged with doing harm, causing needless fears, inciting (a word implying willful effort to arouse action) distrust of officials.
Defendant, not being content with this sustained villification of the plaintiff, charged him with a news reporting that victimizes the gullible listener — well chosen words to utterly destroy any shred of confidence the public may have had in the plaintiff. But now comes the final stab. The writer seeks to destroy plaintiff's position with his employer. Not only is it sought to discredit him in the community, but there is a direct attempt to cause the employer of the plaintiff to discharge him. Not once in the consideration of the words used has it been necessary to go beyond the words themselves to find the intent to destroy the plaintiff's reputation in the community for integrity and honesty, truth and veracity. There is no equivocation in words employed by the writer. A person would have to have the lowest of IQs not to despise Tom McCarthy after reading this editorial, avowedly containing nothing but "The Facts."
Defendant, not being content with having held the plaintiff up as an enemy of the community, a misrepresenter of facts known to him, with causing needless fears in the minds of the public and with merely following a course of such reprehensible conduct, charges plaintiff in the article, "The Voice of the Enquirer," with the lowest possible intentions, of doing all this for his own personal profit. It is claimed that this statement is merely facetious. Evidently, the writer wished to have two barbs on his shafts, and if what he had written did not arouse contempt of the plaintiff, then it was hoped that ridicule might serve his purpose in destroying his reputation in the community. The words used in these two writings are libelous per se and the trial court so properly held. The claim that these statements are "fair comment" or are protected by the "freedom of the press" questions the intelligence of the court.
Let us be realistic. Citizen number one meets citizen number two. The plaintiff passes by. Number two asks, "who is that man?" Number one replies, "oh, that is Tom McCarthy, a news broadcaster for one of the radio stations here, and he should be discharged, for he has done great harm in the community, has stirred up needless and unjustified fear; he has *Page 315 many times in the past misrepresented facts to the people, and his worst example setting himself against the welfare of the people is his misleading statements on fluoridation; he has tried to create distrust of our public authorities, and more than that, if this fluoridation should be installed, he will try to sell his spring water to the people for a dollar a bottle." "But," says number two, "how do you know all this to be true?" "Oh, I know all this is a fact for I read it in an editorial in the Enquirer, and you know the reputation of that paper for honest comment," replies number one. "Well," says number two, "that man should be fired as a news commentator, he is nothing more than a cheat and a liar." It is impossible to tell how many of the readers of defendant's paper reacted in just this way toward these articles, which the majority of this court consider so innocuous.
There is now taken up for consideration the initial element of the error, which was unquestionably the foundation of the verdict for the defendant. An amended answer was presented by the defendant. This pleading was attacked by the plaintiff. The court overruled the motions of the plaintiff because they were not timely interposed. There never can be an excuse for submitting to a jury a pleading which is nothing more than an argumentative statement of the position of a party. With the possible exception of a general denial, the so-called amended answer was nothing more than a brief for the defendant. It is claimed that truth was set up as a defense. The part of the pleading addressed to this defense was nothing more than an equivocal and most general mention of such defense. The plaintiff's motions should have been granted. This pleading initiated a course of presentation by the defendant, the manifest object and purpose of which was to obscure and confuse the simple issues in the case, hereinbefore set out.
One of the chief assignments of error was addressed to the giving of special charges numbers 1, 2, 5, 6, 7, 8, 10, 11, 14, 14a, 15 and 18, and to certain parts of the general charge. It would unduly extend this opinion to consider in detail the defects in these instructions. I consider the claims of the plaintiff applicable thereto fully sustained. The effect of giving these instructions was to hopelessly confuse the jury, so that the real issues *Page 316 were never closely presented to it. No citation of authority is needed to sustain the proposition that the giving of a correct statement of law to the jury in no way destroys the prejudicial error of an incorrect statement of the law given the jury.
In the matter of the proof of damage, the record fails to show any damage, beyond what the plaintiff is entitled to, upon proof of libel per se, with no defense of truth; in other words "nominal damages." Ordinarily, an appellate court will not reverse a judgment for error which prevented the plaintiff from recovering a judgment for nominal damages. However, where, in addition to such nominal damages, the judgment in his favor would also have resulted in his vindication from the libel proved against him, and the costs of the trial were more than a mere nominal sum, such plaintiff is entitled to a reversal, where error prejudicial to his rights is shown.
For the reasons stated herein, the judgment should be reversed and the cause remanded for a new trial.