Petition for rehearing denied June 9, 1931 ON PETITION FOR REHEARING (300 P. 350) In a petition for rehearing our attention is called to the fact that defendant requested an instruction similar to the one given by the court that in the assessment of damages consideration might be given by the jury to the effect of the publication upon the plaintiff's reputation and standing as a lawyer. In our original opinion, we held that the giving of this instruction constituted error. It is now argued that, if any error was committed by the court in that respect, it was invited error and not available as grounds of reversal.
The learned judge of the trial court did not refer to defendant's request when defendant excepted to the giving of this instruction; and the writer was governed by the thought that attention would have been called to the request for such instruction at that time if any such request had been made.
Whether this court should suffer a judgment for $35,000 to stand when based upon instructions as to law, which this court deems to be erroneous merely because such error was invited by counsel for the unsuccessful party, is a question not necessary in passing upon this motion for a rehearing.
Basically, the theory of pleading is that it is the means whereby the parties litigant make known to each other the facts upon which they rely and the nature of the relief sought. In the case at bar there is no allegation in the second amended complaint that the published article affected plaintiff in his capacity as a lawyer. There is no allegation that, as a lawyer, he lost any business because of it. On principle, this amended complaint is insufficient to support a recovery either upon the ground of injury to his standing as a lawyer or upon the ground of loss of business. *Page 517
Plaintiff insists that the court should follow the doctrine ofSanderson v. Caldwell, 45 N.Y. 398 (6 Am. Dec. 105). In this connection, it is well to bear in mind that in this New York case, repeatedly insisted upon by plaintiff as the controlling precedent by which this court at all hazards must be governed, after averring that the plaintiff at the time of the publication complained of was a practicing lawyer and after setting out the libelous article, the complaint alleges:
"That said defendants in said libel referred to meant plaintiff in this action and did by such article charge and intend to charge the plaintiff with being in the habit of the use of spirituous liquors to excess or to intoxication and to such adegree of intoxication as to disqualify him for the propertransaction of his professional business and of impropriety, dishonesty, and fraudulently obtaining money of and from the soldiers and sailors of his district, the boys in blue; and did also in and by said libel charge and intend to charge the plaintiff with taking advantage of the soldiers and sailors inhis professional capacity as lawyer and in making unfair, unreasonable, and extortinate charges against them for professional services and with compelling them to pay such charges."
The writer is of the opinion that in a case, where the defect appearing in the case at bar is not manifest in the pleadings, we can find no basis by which we may be guided even though statements unnecessary to the decision in such case appear therein.
The report of Pattangall v. Mooers, 113 Me. 412 (94 A. 561, L.R.A. 1918E, 14, Ann. Cas. 1917D, 689), does not specifically set forth the allegations of the complaint nor is the sufficiency of the complaint discussed, but the opening sentence of the opinion is as follows:
"This is an action for slander for certain oral statements by the defendant, alleged to be false and defamatory, *Page 518 and to have been made maliciously concerning the plaintiff, with intent to injure him in his good name and reputation as anattorney at law, and likely to so injure him."
In Williams v. Hicks, 159 Wis. 90 (150 N.W. 183), it is said in the statement of the case by the court:
"Plaintiff was a lawyer in good standing, and it was claimed that the article in question was willfully and maliciously composed and published with intent to injure him in his goodname and fame as a lawyer and to bring him into public contempt and ridicule."
The complaint contained allegations to the effect stated and also all the essential allegations to support a recovery.
In Cyrowski v. Polish-American Publishing Co., 196 Mich. 648 (163 N.W. 58), we find this statement:
"The plaintiff claimed that he had become a leader among the Polish people and that he had established himself in a position of trust and confidence among them and as a result of the libelous attack his good reputation was destroyed, whichresulted in great pecuniary damages to him in the loss ofbusiness as a practicing attorney. This element of damage isparticularly set forth in the declaration."
In Krug v. Pitass, 162 N.Y. 154 (56 N.E. 526, 76 Am. St. Rep. 317), the sufficiency of the complaint is not discussed.
In Moore v. Francis, 121 N.Y. 199 (23 N.E. 1127, 8 L.R.A. 214, 18 Am. St. Rep. 810), the sufficiency of the complaint is not discussed.
In Kutcher v. Post Printing Co., 23 Wyo. 178 (147 P. 517, 149 P. 552), the question was whether the petition stated facts upon which damages could be awarded *Page 519 because of the effect upon plaintiff in relation to his encumbency in the office of mayor. We quote the sixth paragraph of the petition:
"Sixth: That in and by said words and matter hereinabove quoted and set forth and so published by the defendants as aforesaid the said defendants, among other things intended to, and did accuse the said plaintiff of, and then and there and thereby intended to convey, and did convey, to the readers of said newspaper, of and concerning the plaintiff and which was by said readers so understood, each and all of the following: (a) That the said plaintiff as such said mayor of the said city of Sheridan did unlawfully permit a dive, namely, a disorderly place, to be carried on and conducted in the said city of Sheridan in violation of the laws and ordinances governing the said city of Sheridan, by the said Maple Leaf Club: (b) That the said Maple Leaf Club owned and had in its possession, within the said city of Sheridan, gambling paraphernalia at the place where it conducted said club used by its members for the purpose of gambling, and that the said plaintiff as such said mayor wrongfully and unlawfully failed to perform a duty to confiscate said gambling paraphernalia: (c) That the said plaintiff as such said mayor of the said city of Sheridan did knowingly and unlawfully permit one Tooner, within the said city of Sheridan, to violate the laws and ordinances governing the said city of Sheridan, and that the said plaintiff as such said mayor did unlawfully and corruptly protect the said Tooner in the violation of the said laws and ordinance: (d) That the said plaintiff as such said mayor of the said city of Sheridan did unlawfully and knowingly and in violation of the laws and ordinances governing the said city of Sheridan, permit the said Tooner to sell liquor within the corporate limits of the said city of Sheridan on Sunday: (e) That the said plaintiff as such said mayor of said city of Sheridan did knowingly, unlawfully, and in violation of the laws, ordinances, and orders governing the said city of Sheridan, permit open violations of the *Page 520 said liquor laws and ordinances prohibiting the sale of liquor within the said city: (f) That the said plaintiff has wholly failed to perform the duties of his office as such said mayor of the said city of Sheridan, was and is a corrupt official, was and is guilty of malfeasance in office as such said mayor, and has connived with and protected persons within the said city of Sheridan in the violations of the laws and ordinances of the said city of Sheridan."
These are the cases relied upon to support plaintiff's claim that we erred in holding that the complaint in the case at bar should obtain an allegation that the libel affected him in his professional capacity. We will now review the cases cited by plaintiff in support of his contention that the instructions pertaining to alleged loss of business should have been given.
Ben-Oliel v. Press Publishing Co., 251 N.Y. 250 (167 N.E. 432), merely holds that the complaint in that case was not subject to demurrer because special damages were not pleaded. The question of the necessity of pleading loss of business as an element of damage in order to warrant its submission to the jury is not mentioned, referred to or suggested.
Secor v. Harris, 18 Barb. (N.Y.) 425, holds that the alleged oral statement of defendant concerning plaintiff was actionable per se. No discussion is had with reference to the necessity of alleging loss of business in order to warrant the submission of the question of loss of business.
In Brown v. Durham, 42 S.W. 331, the question decided, which most nearly approaches the one we are discussing, was whether inasmuch as the plaintiff had alleged in his complaint: "That plaintiff was a tie contractor and that the publication was made for the sole *Page 521 purpose of injuring him in his character, reputation and business and credit in his dealings with the public, in his capacity of railroad contractor," it was error to refuse to give a requested instruction to the effect that in the absence of proof of actual injury only nominal damages should be awarded.
There is not one word about the necessity of pleading loss of business in order to warrant the submission to the jury of a claim therefor.
Jenkins v. Taylor, 4 S.W.2d 656, in so far as it pertains to the question under consideration here, holds that because the article therein shown to have been published was libelous per se the trial court erred in limiting the recoverable damages to injury supported by evidence of damage to plaintiff's reputation as a practicing attorney. The Court of Civil Appeals held that the plaintiff was entitled to damages to his reputation generally and also to his political career. Nothing is said about the necessity of alleging loss of business in order to recover for it.
The case of Redfearn v. Thompson, 10 Ga. App. 550 (73 S.E. 949) (cited in brief as Redfern v. Thompson, 73 S.W. 993), is an action for slander. No discussion appears in it of the necessity of alleging loss of business in order to recover therefor.
In the case of Hess v. Gansz, 90 Mo. App. 439, the complaint contained three causes of action: one for damages to plaintiff in his quality as a private individual, another to him as an attorney at law, and still another as public officer. The court held that there is a distinction between stating a single cause of action in different ways in separate counts, and in so dividing it as to make it the basis of three distinct causes of action and three recoveries. The court reversed it on *Page 522 other grounds and suggested that before another trial plaintiff should amend his petition so that the material therein contained should be stated in separate counts but as one cause of action. There is no discussion of the necessity of pleading loss of business in order to recover damages for it.
In Turner v. Hearst, 115 Cal. 395 (47 P. 129), the Supreme Court held that proof of the extent of plaintiff's practice was admissible. No reference is made to the question of the necessity of pleading loss of business in order to recover damages for such loss.
In Switzer v. Anthony, 71 Colo. 291 (206 P. 391), plaintiff made no claim that the libel affected her business. The question under consideration here is not in the case.
In Lewis v. Hayes, 165 Cal. 527 (132 P. 1022, Ann. Cas. 1914D, 148), (cited in brief as Lewis v. Lewis,) the complaint charged in two counts: in the first, seeking compensation in the sum of $10,000 for general damages; in the second, seeking compensation in the sum of $20,000 for special damages alleged to have been occasioned to her by the injury to her lodging house business and to her business as an instructress in the art of dancing. The record discloses also that plaintiff testified that following the publication the income from her dancing pupils fell to $20 or $30 a month from $180 to $200 a month as it had been previously, and that following the publication of the article all her roomers save one left her house.
In Scott v. Times-Mirror Co., 181 Cal. 345 (184 P. 672, 12 A.L.R. 1007), "intent and design to injure, disgrace and defame this plaintiff and to bring him into public discredit as a lawyer and as a man" is alleged and it is further alleged "that by means thereof the *Page 523 plaintiff has been and is injured in his reputation as aforesaid, and has also lost and been deprived of gains and profits, which would otherwise have arisen and accrued to him in his said business and profession." And it is further alleged that the publication was made "by the defendant * * * with the intent, design and purpose on the part of said defendant to injure this plaintiff in his professional standing and reputation and to discredit and defame this plaintiff and to bring this plaintiff into discredit as an attorney at law."
Doyley v. Roberts, 3 Bing. (N.C.) 825 (cited in brief asDorley v. Roberts), is an action for slander. The plaintiff declared that he is an attorney and that the defendant had falsely spoken and published of the plaintiff, and of and concerning him in the way of his business or profession that he had defrauded his creditors and had been horsewhipped off the course at Doncaster. Special damage that one H. Gyde had, in consequence, declined to employ the plaintiff. The jury found that these words were not spoken of the plaintiff in his character of attorney. Judgment was arrested. Park, J., says: "Here the jury have negatived the allegation that the words were spoken of the plaintiff in his professional capacity. That being the case, they are words of great abuse, but not so severe as many of the expressions which are pointed out in Ayre v.Craven, as having been held not actionable." Lord Denman, C.J., says: "After full examination of the authorities, we think that in actions of this nature, the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession but also to set forth in what manner it was connected by the speaker with that profession."
This case certainly does not hold that it is unnecessary to allege loss of business as an attorney in the *Page 524 case of libel in order to recover damages therefor. As far as the writer is able to discern, this case is not in point on any question involved in the case at bar. It is not an action for libel wherein an entirely different rule applies as to that which is actionable per se from the rule applicable in actions for slander.
The writer has not at any time been oblivious to the fact that there are authorities at variance with his views upon the necessity of pleading that the libel injures plaintiff in his professional capacity in order to justify the submission of the effect of such libel upon the reputation and standing of plaintiff in that capacity.
The cases, however, cited in plaintiff's brief are cases where a holding contrary to the writer's views was unnecessary and hence dictum.
The writer construes the case of Smedley v. Soule, 125 Mich. 192 (84 N.W. 63), in a different manner from that in which plaintiff construes it. In that case the plaintiff was a practicing attorney who had rendered professional services for the city of Grand Haven at the instance of the mayor of that city. Upon the question of remuneration of plaintiff for his professional services, the council of that city were evenly divided and the mayor cast the deciding vote. The clerk of the city refused to issue a warrant for such fee. The plaintiff instituted mandamus proceedings in the circuit court to compel the issuance of such warrant. Plaintiff was unsuccessful in the circuit court, but prevailed in the supreme court (Smedley v.Kirby, 79 N.W. 187). Subsequently the question of bonding the city to pay certain of its indebtedness including plaintiff's bill was submitted to a vote of the electors. That submission took place before the decision on appeal *Page 525 in Smedley v. Kirby, supra. The defendants issued a circular containing the following language: "Does any citizen believe that he (the mayor) did not have a `divy' in the notorious fraudulent Smedley bill? * * * The notorious Smedley bill that the mayor has included in one of the items the people are asked by him to bond the city to pay. Don't have to be paid. Judge Padgham has taken care of that."
Plaintiff contends that the foregoing libel "did not touch plaintiff in his professional capacity and only libeled him as an individual." To charge a lawyer with trying to collect a fee for his professional services in behalf of the city under an arrangement to divide the same with the mayor of that city and to designate the same as notorious and fraudulent is in the opinion of the writer touching the attorney in his professional capacity. In effect the libel is that an extortionate charge was made by the attorney against his client, the city, under a corrupt and collusive agreement with the mayor.
The general rule is that the instructions given must conform to the issues raised by the pleadings and be based thereon: 13 Ency. of Plead. and Pract., p. 108, par. 3. Because it is said that the error, in giving the instructions as to the effect of the libel upon plaintiff as a lawyer, was invited, it should be understood that our conclusions herein with respect to the motion under consideration are not based upon the court's error in that regard.
The defendant did not request the court to instruct the jury that in assessing damages consideration should be given to loss of business. The court did, however, so instruct the jury and an exception was taken to such instruction. There is no allegation in the second *Page 526 amended complaint and there is absolutely no testimony in the record that defendant lost any business because of the libel. On principle, then, in that respect, the case was not submitted to the jury on the record.
It is true that general damages were awarded in one sum and punitive damages in another; but this court is utterly unable to determine how much general damages were awarded because of loss of business.
As to the error in denying defendant the right to cross-examine plaintiff, the writer thinks that plaintiff gives an unjustifiably narrow and restricted construction to the direct examination.
The writer is of the opinion that the examination of plaintiff had a direct bearing upon the issue of actual malice; further, that the question that was being answered was: "Q. Under what circumstances did you learn that?" (That alleged statements forming the basis of the libel had been made to the reporter of the Telegram.)
It is true that plaintiff was interrupted by his attorney before the answer to his question was completed. Plaintiff said: "On Tuesday morning, October 2, I think is the date of the publication —" His attorney then said: "Q. That is the date, yes, October 2d." Then plaintiff continued: "A. About 7:30 in the morning or a quarter to 8 I was called on the telephone by Mr. Phillips — no, a man named Bailey who was a reporter for the Telegram, Seth Bailey, I think his name was."
Again the attorney speaks: "Q. He told you who he was over the 'phone did he? A. Yes, he told me who he was." Then: "Where were you at that time?" The plaintiff then testified: "A. I was shaving myself in the bathroom when this 'phone came, and he *Page 527 said he was Seth Bailey from the Telegram and that he had a sensational story about me. I said, `Is that so?' He said, `Yes.' I said, `What about it — what kind of a story have you got about me now?' He said, `Well you — McDonald, or Knight, says that you betrayed him and gave away — informed on him, and said that you were his attorney; that you betrayed him professionally,' and he said, `We are going to publish the story.' Well, the Telegram had been making a buffer of me for about a year before, and I was pretty mad about it, and I said, `Now, I want to tell you one thing; you just stop publishing that story about me because it is entirely false,' and I said, `If you publish it, I am going to sue you for libel,' and I told him, I said to him, `I am coming down to see you right off,' so Mr. Neppach came along then in his car and we drove down to the Telegram office."
How anyone with experience in the trial of law suits could torture the foregoing record into meaning that plaintiff was merely answering the question: "Where were you at that time?" is beyond the comprehension of the writer. Such a construction impugns the conduct of plaintiff and is a reflection upon the intelligence of all of the participants in the trial. In the opinion of the writer plaintiff was stating the circumstances under which he learned that statements of the kind published had been made to a reporter of the Telegram. That is what his attorney had asked him to do. Until the answer last hereinabove set forth had been completed, that is what plaintiff had not done. The answer was responsive to the question which apparently all parties understood that the witness was answering. In carefully reading and rereading this record, the writer is wholly unable to understand it otherwise. *Page 528
An interruption as to time, name of person, or any similar matter having for its purpose clarity of understanding of a question submitted certainly ought not to deprive a party of the right to fully and completely answer the question submitted.
In stating those circumstances plaintiff said that the Telegram had been making a buffer out of him for about a year or more and he was pretty mad about it. As the writer understands the English language, that was one of the circumstances related in response to the question, "Under what circumstances did you learn that?" The answer was responsive to the question and relevant to the issue of actual malice.
The case of Upton v. Hume, 24 Or. 420 (33 P. 810, 21 L.R.A. 493, 41 Am. St. Rep. 863), is cited as authority for the doctrine that actual malice may not be proven by statements or articles of a different import from the libel charged. This case holds that a subsequent article different from the one in suit can not be introduced in evidence. In the case at bar the testimony of plaintiff was concerning instances occurring prior to the publication, not subsequent thereto.
In the petition for rehearing plaintiff now contends that his testimony was incompetent. We have the anomalous situation of a plaintiff who for years had been a practicing lawyer testifying to circumstances tending to impute actual or express malice on defendant's part in support of a charge to that effect in his complaint, and who now contends that his testimony is incompetent. He did not move to have it stricken. The court did not strike it. The case was submitted to the jury and a large verdict was returned upon this testimony which defendant now characterizes as incompetent. *Page 529
The writer prefers to think that the plaintiff was clearly within his legal rights when he so testified. The writer also thinks that the weight of authority as well as the better reasoning supports the rule that evidence that the libel in issue has been preceded by others from the same source, though disimilar in character, is admissible to prove malice: Newell, Slander and Libel, (4th Ed.) § 286, p. 232, and cases there cited; 37 C.J. 488, and cases there cited.
While it is true that upon cross-examination the plaintiff expressly testified that in using the term "buffer" he meant that "the Telegram had accused him of having corrupted one of the members of the supreme court falsely and maliciously and without any truth in it," and to this extent his testimony tends to prove the prior publication of articles of the kind indicated by plaintiff, yet it is also true that plaintiff further testified: "A. I had a case in the supreme court called the Wemme case and the lawyer who drew the will in the case didn't know how to draw it; the will was void, utterly void. That same lawyer had (a) charge of $32,000 for probating the estate, and he sold the property at the Burnside bridge for $47,000, and falsely represented to the court that he had obtained $100,000 for it, and in order to cover his own tracks, he tried to make me out a crook and the Telegram was his vehicle in doing it." He also testified that the late George W. Joseph was the lawyer to whom he referred. This in part is the meaning of the term "buffer" as the plaintiff defined it and as the plaintiff used it in his direct examination. In other words, the plaintiff testified that there was collusion between the defendant and Mr. Joseph because of Mr. Joseph's relation to the Wemme case and his alleged misconduct with *Page 530 reference thereto to discredit plaintiff in order to divert attention from such alleged misconduct on Mr. Joseph's part.
Without reference to whether this alleged collusion manifested itself by other articles than the one in suit or not, the evidence of plaintiff concerning it had a direct bearing upon the charge of express malice. Being within the issues, the testimony was subject to a reasonable cross-examination. Mr. Joseph's conduct with respect to the Wemme case was clearly a matter about which defendant should have had the privilege of cross-examining plaintiff. On the contrary, defendant was not permitted to ask plaintiff if he had ever investigated the record of that administration, or if he knew what lawyer handled it, or if as a matter of fact a lawyer other than Mr. Joseph handled it entirely.
The writer is unwilling to ascribe to the plaintiff the course his brief now reflects with respect to the testimony we are considering. On the contrary he finds no irregularity or misconduct on plaintiff's part in testifying to those circumstances upon which he based the claim that defendant was actuated by actual malice. In that respect the testimony of plaintiff was competent, then cross-examination thereupon ought not to have been abridged.
For the reasons herein stated, the petition for rehearing is denied.
BELT and BROWN, JJ., concur.
BEAN, C.J., and CAMPBELL, J., dissent.
RAND and ROSSMAN, JJ., did not participate. *Page 531