BEALS, TOLMAN, and HOLCOMB, JJ., dissent. On the front page of two editions of The Seattle Times for March 16, 1934, under a double column head, was printed the following:
"CONSUL'S GAY PARTY WINDS UP AS GIRLS STEAL CLOTHES, CASH
"Fellow consuls and friends of Fernando Berckemeyer-Pazas, Peruvian consul here, gave a farewell party for him last night at the Washington Athletic Club. The party ended at 5:30 o'clock this morning when Felix Luna, Peruvian consul at Vancouver, B.C., telephoned police and said two women, `uninvited *Page 620 guests,' had left with clothing, $200 and jewelry belonging to Mr. Berckemeyer-Pazas.
"`It was a great party,' Mr. Luna recalled today, as he `convalesced' at the Mayflower Hotel.
"`Mr. Carlos Grant, the Chilean consul in Seattle, arranged it,' Mr. Luna said. `Mr. Berckemeyer-Pazas, you see, is going to San Francisco Monday to be Peruvian consul-general for the Pacific Coast. That is a very fine job.'
"Mr. Luna had a towel on his forehead as he talked. Luis Navarro, Portland, Or., importer and former Peruvian consul there, sat nearby. He also attended the party, and his diet today consisted of aspirin tablets and ice water.
"Edmundo Chocano, former Peruvian vice consul here, also was in Mr. Luna's room. He had been unable to attend the party. He was consoling Mr. Luna and Mr. Navarro, while he tried to decide whether he was glad or sorry he missed the party.
"`There were thirteen of us,' Mr. Luna said. `That is an unlucky number in this country, eh? There was Mr. Grant. Then there were Mr. Otto Strizek, the consul for Czecho-Slovakia, and Mr. Carlos Garcia-Prada, the University of Washington professor.'
"The party started with a seven-course dinner at $3.50 a plate, with extra service of Manhattan cocktails, burgundy, champagne and cognac. Then the party moved up to the twenty-first floor.
"`We had several kinds of very nice liquor there,' Mr. Navarro said. `Then some gentlemen arrived. I did not know them. They brought two women with them.'
"`Very early this morning,' Mr. Luna remarked, `Mr. Berckemeyer-Pazas discovered his money was gone. Also some of his clothes and some jewels. The women were gone, too.'
"Sorry for Honor Guest "Mr. Luna said all the guests felt very sorry, because Mr. Berckemeyer-Pazas was the guest of honor, and it is not proper for the guest of honor to lose his money and things.
"`We hope Mr. Berckemeyer-Pazas does not have to walk to San Francisco,' Mr. Luna said. *Page 621
"Then he put a fresh towel on his forehead. Mr. Navarro took another aspirin. Mr. Chocano said he was very sorry for everyone.
"Last night's party followed a day spent at the Carnation Farm, where the consular group drank milk from `contented cows' and learned dairying from the pasture up."
Shortly thereafter, alleging the article to be libelous, plaintiff instituted this action for damages.
On April 17, 1934, in an equally prominent position, there was printed, by way of retraction, the following:
"PRACTICAL JOKE DUMPS TROUBLES IN CONSUL'S LAP
"PLAYFUL IDEAS OF COMPANIONS CAUSE EMBARRASSMENT TO FELIX LUNA; THE TIMES CORRECTS ERRORS FROM POLICE REPORT "It was just a practical joke. Nothing was really stolen from the room of Fernando Berckemeyer-Pazas, former Peruvian consul here, after a farewell dinner in his honor the evening of March 15 in the Washington Athletic Club, according to a report on file with the police today.
"The missing articles were found next day in the pocket of a guest at the dinner, according to the report. The practical joke was as much on the guest as it was on Mr. Berckemeyer-Pazas, because neither knew who dropped the articles in his pocket.
"But the joke caused no end of trouble to Mr. Berckemeyer-Pazas, Mr. Felix Luna, Peruvian consul at Vancouver, who was also a guest at the dinner; the Seattle Police Department, and The Seattle Times, which printed an article about the purported theft.
"Mr. Luna became involved when Mr. Berckemeyer-Pazas, upon discovering his loss several hours after the dinner, telephoned him. Mr. Luna promptly notified police in good faith. Police started an investigation. A Times reporter read Mr. Luna's report and went to the Mayflower Hotel, where Mr. Luna was staying, to interview him.
"But the reporter didn't get any of the details of *Page 622 the dinner or the purported theft from Mr. Luna. Instead, the reporter interviewed another guest at the party, who was staying in a room adjoining Mr. Luna's at the Mayflower Hotel.
"However, due to a confusion of identity, the name of Mr. Luna was inserted in the article, printed in The Times March 16, as giving the interview. Mr. Luna gave no interview.
"The Times article reported:
"`"It was a great party," Mr. Luna recalled today, as he convalesced at the Mayflower Hotel.'
"The insertion of Mr. Luna's name in this sentence instead of the name of the guest who gave the interview was in error.
"The article further reported that `Mr. Luna had a towel on his head as he talked' and that during the interview `he put a fresh towel on his head.' Mr. Luna did not have a towel on his head.
"The original police report on the purported theft, reprinted in the article, stated that clothing had been stolen from Mr. Berckemeyer's room. No clothing was involved in the prank.
"And thus endeth the report of a series of errors which followed a playful desire of well-wishing friends. No hits, no runs, all errors."
Thereafter, defendant answered the complaint and set up two affirmative defenses, as follows: First, defendant alleged that the facts appearing in the article of March 16th were true and correct statements of facts ascertained from an interview with Navarro, who should have been described as the speaker instead of plaintiff; second, defendant, in mitigation of damages, set up the article published in the paper of April 17th.
The cause was tried to a jury, which returned a verdict for $7,500. From judgment entered on the verdict, defendant appeals. The errors assigned will be discussed under the following heads:First, the sufficiency of the evidence to make a case for the *Page 623 jury; second, the admissibility of certain evidence; third, certain instructions given and certain instructions requested and not given; fourth, excessiveness of the verdict.
[1] First: Since respondent did not allege special damage, the first question is presented in two phases: (a) Was the article of March 16th libelous per se? (b) Were the facts stated therein true? If the article of March 16th was libelousper se, respondent is entitled to substantial damages without alleging or proving special damage. Dick v. Northern Pac. R.Co., 86 Wash. 211, 150 P. 8, Ann. Cas. 1917A, 638; CyclohomoAmusement Co. v. Hayward-Larkin Co., 93 Wash. 367,160 P. 1051. In order to constitute a civil libel per se, it is not necessary that the words published involve an imputation of crime. Lathrop v. Sundberg, 55 Wash. 144, 104 P. 176, 25 L.R.A. (N.S.) 381. A publication will be held to be libelous if it tends to render a person odious, ridiculous, or contemptible in the estimation of the public, or brings him into public disgrace. Wells v. Times Printing Co., 77 Wash. 171,137 P. 457.
In determining whether or not the published matter is libelousper se, the article is to be read as a whole. Graham v. StarPub. Co., 133 Wash. 387, 233 P. 625. Now, taking this article of March 16th by its four corners, we fail to see how it could have any other effect than to hold respondent up to public scorn, ridicule and disgrace. The fact that it was published without malice does not diminish its effect nor relieve appellant of liability. McKillip v. Grays Harbor Pub. Co., 100 Wash. 657,171 P. 1026.
[2] An examination of the cases heretofore cited will show that articles having much less tendency to hold one up to public scorn and disgrace have been held libelous per se. While none of our own cases involves *Page 624 publications attributing to one untrue statements, actually not made by him, such cases are plentiful from other jurisdictions. Publications of such character, far less offensive than the article of March 16th, have been held libelous per se.Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W. 364, 135 Am. St. 417, 34 L.R.A. (N.S.) 1137; Wiley v. Oklahoma Press Pub.Co., 106 Okla. 52, 233 P. 224; 40 A.L.R. 573; Lick v. Owen,47 Cal. 252; Morse v. Star Co., 118 A.D. 256,103 N.Y.S. 496; Snyder v. New York Press Co., 137 A.D. 291,121 N YS. 944; Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076.
[3] With respect to the truth of the article of March 16th, appellant admitted that respondent did not give the purported interview. It also admitted that respondent did not have a towel on his head nor call for another at the time of the purported interview. Furthermore, although appellant alleged in its answer that the interview as reported was, in fact, given by Navarro and Chocano, no proof was offered in support of the allegation. Neither the reporter who was supposed to have had the interview nor the re-write man in the office who wrote the story was called. So far as the evidence in the case shows, the whole story was a fabrication of their imaginations, based upon a report to the police made by appellant at 5:30 A.M., March 16th, of the theft of
". . . money, clothing jewelry fm room of the Peruvian counsel at Seattle at 2001 Washington Athletic Club Bldg by a couple of women. . . ."
To substantiate the truth of the article, appellant offered evidence of the events of the evening of the party. It undertook to prove that there was much to drink and that respondent got drunk; that, after the banquet, the guests repaired to the room of Berckemeyer-Pazas, where two women shortly joined *Page 625 them. Respondent admitted the presence of the women, and that cocktails and wine were served at the banquet, and whiskey afterward. He denied, however, that he was drunk, or that he had a hangover next morning.
Upon this evidence, we think the question of the truth of the article and its effect was for the jury. Taking the article as a whole, it purported to be an interview with respondent. As such, it was wholly false. The fact that true statements were interspersed through the story makes it none the less libelousper se or damaging in its effect. Nor do such true statements relieve appellant from liability. Hubbard v. Allyn,200 Mass. 166, 86 N.E. 356. What was said in Snyder v. New York PressCo., 137 A.D. 291, 121 N.Y.S. 944, is peculiarly pertinent here:
"An article may be libelous, though it does not impute immoral conduct. The whole tenor of this article is to ridicule the plaintiff. It has a direct tendency to lower her in the estimation of the community, though it may not charge immoral conduct, or impute immoral character. . . .
"The defendant contends that the article is innocent and belongs to a class generally recognized as having a `news value.' It is difficult to perceive what news value it can have, and impossible to discover its literary value. If newspapers see fit to give their readers fiction as news, they do so at their peril. Such an article should not be held harmless unless in the language of Judge MARTIN, in the Triggs case, it is `perfectly manifest' that it is."
[4] Second: Respondent was permitted to testify that, when he got back to Vancouver, his wife was so incensed over the report of his purported conduct in Seattle that she would not have anything to do with him; that she became somewhat mollified before the retraction was published on April 17th, but that then her anger broke out again, with the result that, *Page 626 on May 7, 1934, she left him to return to her home in Peru; that he has never seen her since.
It is, of course, well settled that one cannot recover damages on account of the humiliation, chagrin and mental suffering of members of his family. Dennison v. Daily News Pub. Co.,82 Neb. 675, 118 N.W. 568, 23 L.R.A. (N.S.) 362. On the other hand, it is equally well settled that evidence of aversion, contempt or hatred, manifested, as a consequence of a libelous publication, by one's friends or acquaintances, is competent to show the hurtful tendency of the defamatory words. Cyrowski v.Polish-American Pub. Co., 196 Mich. 648, 163 N.W. 58;Merchants' Ins. Co. v. Buckner, 98 Fed. 222; Hubbard v.Allyn, 200 Mass. 166, 86 N.E. 356; Zambory v. Csipo, 3 N.J. Misc. 153, 127 A. 573; Warren v. Pulitzer Pub. Co.,336 Mo. 184, 78 S.W.2d 404; Lowe v. Brown, 114 Ore. 426,233 P. 272, 235 P. 395; Bishop v. New York Times Co., 233 N.Y. 446,135 N.E. 845. In the last cited case, the court said:
"We are inclined to the view that a plaintiff is not compelled to rely upon a favorable presumption with which the law endows his cause of action but that he may prove if he can that he has been avoided and shunned by former friends and acquaintances as the direct and well-connected result of the libel."
It was under this rule that the court admitted the evidence relative to the conduct of respondent's wife. It was not for the purpose of permitting recovery for her humiliation and grief, but to show the effect upon respondent himself. Evidence of her contempt, hatred and aversion was just as competent as evidence of such manifestations on the part of any other of his friends or acquaintances. Earl v. Times-Mirror Co., 185 Cal. 165,196 P. 57.
[5] Third: The court instructed the jury that, in *Page 627 an action for libel, the law presumes the reputation and character of plaintiff to be good, and that it is not necessary for him to adduce evidence in support thereof. Respondent offered no evidence on the subject. Appellant produced three witnesses who testified that respondent's reputation and character were bad. Excepting to the instruction on the presumption, appellant makes the usual argument that a presumption is merely a rule of law relating to the order of proof; that it suffices as evidence only until evidence to rebut is received; that it then falls and loses its force completely.
The difficulty, however, lies not so much with the statement of law as with its application. When and by whom is it to be said that the evidence is sufficient to rebut a presumption? In some cases, doubtless, it may be said by the court, as a matter of law. In other cases, it may very properly be left to the jury to say. Simply because some witness takes the stand and swears to facts which, if true, would rebut the presumption, does not require the court to hold, as a matter of law, that the presumption has been rebutted. The quantum and quality of proof sufficient to rebut a presumption differs widely in different classes of cases.
For instance, in a murder case, where the killing is admitted and the presumption follows that defendant is guilty of murder in the second degree, it is error not to instruct the jury on the presumption of innocence. State v. Tyree, 143 Wash. 313,255 P. 382. And it is proper to instruct the jury that the presumption of innocence attends the defendant until overcome by the evidence (State v. Pavelich, 153 Wash. 379, 279 P. 1102) and guilt is proven beyond a reasonable doubt. State v. Dunn,159 Wash. 608, 294 P. 217. *Page 628
In fraud cases, the presumption of honesty and fair dealing must be rebutted by evidence that is clear, cogent and convincing, and it is proper to so instruct the jury. Biel v.Tolsma, 94 Wash. 104, 161 P. 1047.
The sum and substance of all that has been written on the force and effect of presumptions is that, in the first instance, it is for the court to say whether or not the evidence is sufficient, as a matter of law, to overcome a presumption. If not, the question may be left to the jury, under proper instruction. See: Knutson v. McMahan, ante p. 518,58 P.2d 1033.
And so, in the case at bar, it was a correct statement of law for the court to advise the jury as to the presumption of good reputation and good character. At best, the testimony of the witnesses called by appellant to rebut the presumption was hearsay. Without analyzing their testimony, we may say that, on cross-examination, facts were developed from which it might be inferred that each of them was animated by a motive of personal hostility toward respondent. On this record, we think the court very properly left it to the jury to say whether the evidence was sufficient to overcome the presumption of good reputation and good character.
[6] In instruction number six, the court defined libel, and told the jury it was libelous per se to publish a statement charging one with being under the influence of intoxicating liquor. In the instruction, the court further charged that it was unnecessary to prove malice. The court then said:
"As to the other matters complained of as being libelous, it is for the jury to say whether the publication tends to expose the plaintiff to hatred, contempt, ridicule, or obloquy, or to deprive him of the benefit of public confidence or social intercourse. And if you find from a preponderance of the evidence that the balance of said article is libelous, then plaintiff is entitled *Page 629 to recover such damages, if any, as you find he has sustained."
It is this portion of the instruction of which appellant principally complains. But we think that this instruction was more favorable to appellant than otherwise. For the court left to the jury something which it should itself have determined, namely, that the article, when read as a whole, was libelous perse. Graham v. Star Pub. Co., supra; Hubbard v. Allyn, supra. [7] The court refused to give an instruction requested by appellant as follows:
"If under the evidence you find that plaintiff had in fact over-indulged in intoxicating liquor on the night of March 15, 1934, and on the morning after was suffering from the effects of such over-indulgence, if any, I instruct you that plaintiff may not be awarded damages in any amount in this action and your verdict will be in favor of the defendant."
The defense of truth was adequately covered by instructions fourteen and fifteen. It was, therefore, not error to refuse to give the above-quoted request.
[8] Appellant submitted two requested instructions which the court refused, one directing the jury, in awarding damages, to disregard the fact that respondent's wife and children "are now living in Peru," the other to disregard any evidence tending to show that respondent's wife had left him or that his home had been broken up as a result of the defamatory article. We have already stated that evidence with respect to these matters was admissible. The requested instructions were properly refused. The evidence being admissible, the jury should not be told to disregard it.
[9] Fourth: The verdict is large, but we find nothing in the record to indicate that the jury was *Page 630 motivated by passion and prejudice. Appellant calls attention to what it terms inflammatory remarks made by counsel for respondent in his closing argument to the jury. The so-called inflammatory remarks refer to the evidence of the estrangement of respondent's wife and the breaking up of his home. We do not think the remarks went beyond the bounds of legitimate comment on the evidence. Furthermore, there had been a previous trial in which a jury returned a verdict of five thousand dollars. Of a like situation, this court, in Regenvetter v. Ball, 131 Wash. 155,229 P. 321, said:
"The question of the amount of the recovery is solely for the jury. The court may not substitute its judgment for the judgment of the jury, however much it may be dissatisfied with the verdict as returned. Its power in this respect is limited to granting another trial, or what is to the same effect, giving the plaintiff an option to accept a lesser sum than the verdict awards or submit to a new trial. But there must be a limitation to the exercise of this power, else it may result, because of the exhaustion of the plaintiff or of his resources, in the denial of any recovery at all. The tribunal the law appoints to measure the plaintiff's recovery has in this instance twice returned awards substantially in the same amount, and nothing in the record indicates that there would be a different result were the plaintiff to be compelled to resort to a third. It is our opinion that an injustice would be done the plaintiff if he is compelled to resort to another trial, and that the judgment should be affirmed."
Judgment affirmed.
MILLARD, C.J., MAIN, MITCHELL, STEINERT, and GERAGHTY, JJ., concur.