Opinion of the Court-McCarran, C. J. It was held that a nonsuit was properly entered because the advertisement was not capable of any defamatory meaning. 10. As a general proposition of law applicable to pleadings in cases of this character, if the words or expressions complained of are ambiguous or equivocal, the innuendo may assign the true meaning the plaintiff believes them to bear; but if the words alone, or the words limited by circumstances duly pleaded, are not defamatory, the innuendo cannot make them so. (Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509, 153 Am. St. Rep. 359, 25 L. R. A. n. s. 517; Feast v. Auer, 90 S. W. 564, 28 Ky. Law Rep. 794, 4 L. R. A. n. s. 560.) 11. Viewing the question from another angle, we think a rule applicable to the subject may well be stated thus: Words are actionable per se which directly tend to the prejudice of any one in his office, profession, trade, or business. But even under this general assertion of the rule it does not follow that all words to the disparagement of an officer, professional man, or one engaged in a trade or business, will for that reason, without proof of such damage, be actionable in themselves. Mr. Newell, in his work on Slander and Libel, says: "When language is used concerning a person or his affairs which from its nature necessarily must, or presumably will as its natural and proximate consequence, occasion him pecuniary loss, its publication prima facie constitutes a cause of action and prima facie constitutes a wrong without any allegation or evidence of damage other than that which is implied or presumed from the fact of publication; and this is all that is meant by the terms 'actionable per se,' etc. Therefore, the real, practical test by which to determine whether special damage must be alleged and proven in order to make out a cause of action for defamation, is whether the language is such as necessarily must or naturally and presumably will occasion pecuniary damage to the person of whom it is spoken." (Newell on Slander, 2d ed. p. 181.) 12. To this assertion of the law we deem another rule Opinion of the Court-McCarran, C. J. applicable; i. e., the actionable words or assertions must refer to the party bringing the action, at least with reasonable certainty. In the case at bar, even applying the broadest meaning and significance to the term used, and taking it in the most favorable light presented by the innuendo and under conditions delineated by the colloquium, it would require a distorted application and a strained construction of the language used in the letter complained of to bring such language into the category of expressions actionable per se with reference to the appellant. Much reliance is placed by appellant in the case of Peterson v. Western Union Telegraph Co., 65 Minn. 18, 67 N. W. 646, 33 L. R. A. 302. There the defendant, the Western Union Telegraph Company, received at its office in New Ulm and transmitted a message over its telegraph line, addressed to the plaintiff in that case, in which message appeared the words: "Slippery Sam, your name is pants. [Signed] Many Republicans." The court held that the message was on its face fairly susceptible of a libelous meaning, saying: "The sting is in the word 'slippery.' This word, when used as descriptive of a person, has a well-understood meaning. It means, when so used, that the person to whom it is applied cannot be depended on or trusted; that he is dishonest and apt to play one false. (Cent. Dict.) If such is the meaning of the word as used in this message-and of this the jury were the judgesit was clearly libelous, because, if a man is dishonest, and apt to play one false, he merits the scorn and contempt of all honorable men. To falsely publish of a man that he is slippery tends to render him odious and contemptible. Such a publication is a libel." There is a wide difference between that case and the one at bar. Had the letter in question as published by respondent declared that appellant had overloaded the insurance company with unauthorized salary and traveling expenses, then there might be some ground upon Opinion of the Court-McCarran, C. J. which to base this analogy. In the Peterson case, the term "slippery" was applied to the plaintiff with all the force and effect that the ordinary acceptation of that term conveyed-undependable, dishonest, false dealing, etc. In the case at bar, the term "overload" is directly applied to the company, and even a strained construction of the term, if such construction were permissible, would not convey the idea of wilful wrongdoing on the part of any one. The whole sense conveyed by the expression, taken in connection with the full context of the letter complained of, when put in homely language, was that the burden of expense was too great for the present capacity of the corporation; the expression "is overloaded" was impersonal. The language was not actionable per se. With a view to supporting his contention that the language complained of in this letter was libelous per se, appellant refers us to many other cases decided in the several jurisdictions. We proceed to analyze some of these, inasmuch as in our judgment they rather support our conclusion reached in this matter. In the case of McKinney v. Roberts, 68 Cal. 192, 8 Pac. 857, the actionable words charged a woman with being a "paramour" of a man not her husband. Here was a term commonly understood to impute lack of chastity. The published article referred specifically to a given person. In the case of Indianapolis Journal v. Pugh, 6 Ind. App. 511, 33 N. E. 991, the libelous matter charged a woman with having traveled with a married man for five months as his wife and that she was turned out of a hotel, and that their relations had caused sensation where it transpired. Here was a direct charge of conduct impugning chastity. In Newman v. Stein, 75 Mich. 402, 42 N. W. 956, 13 Am. St. Rep. 447, the action was for slander. The actionable language was spoken directly to the plaintiff in the presence of others. Vile, opprobrious epithets were used, imputing want of chastity. VOL. 41-18 Opinion of the Court-McCarran, C. J. In Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68, the libelous matter was by way of graphic demonstration by which a party's faithfulness and honesty as builder and architect was impugned; but the party was specifically named and referred to. In Hetherington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169, the publication specifically named a party, designating his former official capacity as city attorney, and detailed advice given and directly charged abandonment of his client. In Steele v. Southwick, 9 Johns. (N. Y.) 214, the case arose out of a published statement specifically designating a party by a term of common knowledge and repute, i. e., "the man at the Sign of the Bible," and directly charging "is no slouch at swearing falsely." In Riley v. Lee, 88 Ky. 603, 11 S. W. 713, 21 Am. St. Rep. 358, the question was as to a published article setting forth in unmistakable language the direct charge of a false utterance alleged to have been made by the plaintiff. In Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105, there was specific reference to the plaintiff, calling him by name, mentioning acts done in "his sober moments," then charging the collection of "blood money" a "big thing," thus imputing extortionate conduct in his profession. Many other cases of like significance might be referred to as signifying what courts have held to be language libelous per se. None of them are analogous to the case at bar. In each of the cases to which we have last referred, language is used designating a given person with reasonable certainty and terms or assertions are resorted to in the libelous utterance imputing attributes which, with reference to the person, either by reason of the common use made of the term within the locality or the acceptation of the term or assertion generally, would naturally tend to degrade him in the estimation of his fellow men, or hold him out to ridicule or scorn, or would tend to injure him in his business, occupation, or profession. Opinion of the Court-McCarran, C. J. 13. It is contended by appellant that, even though the language used in the letter complained of was not libelous per se, no allegation of special damages was necessary. It is sufficient to say in this respect that all of the authorities to which we have referred, and indeed many cthers, support the proposition that where the language complained of is not libelous per se, special damages must be alleged. In Ruling Case Law, it is asserted thus: "The general rules applicable in pleading damages generally apply to actions for libel or slander. In such cases it is necessary for the plaintiff to allege in his petition, as well as to prove, special damages before he is entitled to recover, unless the defamatory words in action are actionable per se." (17 R. C. L. 391.) We find this text amply supported by eminent authority. (Tracy v. Hacket, 19 Ind. App. 133, 49 N. E. 185, 65 Am. St. Rep. 398; Gustin v. Evening Press Co., 172 Mich. 311, 137 N. W. 674, Ann. Cas. 1914D, 95.) 14. It is the contention of appellant that, even though it be held that an allegation of special damages was necessary to make the pleading good as against demurrer, his allegation in this respect is sufficient to comply with such a rule. The allegation of damages, as we view it, is contained in paragraph 9 of the complaint. There it is averred: "That by means of said false, libelous and defamatory publication or publications the plaintiff herein was injured in his reputation and good name and standing to his damage in the sum of $50,000." No allegation of special damages, as such is understood in the law of pleading, is here set forth. The order of the trial court in sustaining the demurrer is affirmed. It is so ordered. ON PETITION FOR REHEARING Per Curiam: Rehearing denied. |