#### Westropp, Appellant, *v.*The E. W. Scripps Co. et al., Appellees.

*366(No. 30744

Decided August 6, 1947.)

*372
      *Messrs. Harrison, Thomas, Spangenberg & Hull,*for appellant.

*Messrs. Baker, Hostetler & Patterson, Mr. Thomas J. Edwards, Mr. William F. Marsteller*and *Mr. Charles D. Johnson,*for appellees.

Matthias, J.

The appellant, who will be hereinafter referred to as the plaintiff, has assigned numerous claims of prejudicial error of the trial court, the mo.st important being the refusal to instruct the jury that the publication complained of was libelous *per se.*That issue was squarely presented to the court by a request of counsel for the plaintiff to give the following instruction before argument:

> “I charge you as a matter of law that the publication of- the editorial and pictures which is the subject matter of the plaintiff’s complaint and which is set forth in her petition, was defamatory and libelous *per se*

It is urged by counsel for the defendants that by pleading innuendoes the plaintiff admitted the publication was not libelous *per se*or at least that it was ambiguous, and, therefore, a question of fact was presented which should be submitted to the jury.

The rule applicable in such a situation is clearly and concisely stated in 37 Corpus Juris, 25, Section 332, as follows: ‘ ‘ The innuendo may be treated as surplusage where it is «used in connection with words which are unequivocal and actionable *per*se.”

In 1 Cooley on Torts (4 Ed.), 511, Section 147, the rule applicable is stated thus: “When the words in themselves are actionable *per se*no innuendo is needed, and if the innuendo alleged is not borne out by the words, it may be treated as surplusage and a recovery had on the words themselves.” Numerous cases are cited supporting the text,”among which are *Brown*v. *373
      *Providence Telegram Publishing Co.,*25 R. I., 117, 54 A., 1061; *Sanford*v. *Rowley,*93 Mich., 119, 52 N. W., 1119; *Morrison*v. *Smith,*177 N. Y., 366, 69 N. E., 725; and *Jones*v. *Roberts,*73 Vt., 201, 50 A., 1071.

In the case of *Sanford*v. *Rowley, supra,*it was held by the court that the province of the innuendo is to explain language of doubtful meaning, and that if the-meaning is clear the innuendo is surplusage and will be-so treated.

In the case of *Morrison*v. *Smith, supra,*the contention was made that, as the purpose of an innuendo in a pleading is to show the true meaning of published words, any other meaning is to be rejected, and that however libelous the words standing alone may be, no cause of action is stated if the meaning assigned is not supported. The court rejected that contention and stated in the opinion, by Gray, *3.,*that “the plaintiff should be permitted to recover for a libel clearly appearing on the face of the article, for which no innuendo was necessary.”

It is our conclusion, therefore, that notwithstanding the innuendoes in plaintiff’s petition, the plaintiff was not precluded from urging that the publication was libelous *per se.*

It is well settled that in an action for libel the question whether the publication complained of is libelous *per se*is primarily for the court, and that it is error to submit to the jury the question whether the publication is libelous *per se,*unless its méaning is so uncertain and ambiguous as to require that the construction and meaning be submitted to the jury. *Mauh*v. *Brundage,*68 Ohio St., 89, 67 N. E., 152, 62 L. R. A., 477; *Cleveland Leader Ptg. Co.*v. *Nethersole,*84 Ohio St., 118, 95 N. E., 735, Ann. Cas. 1912B, 978.

In the syllabus in the case last cited is a very clear and concise statement of what may constitute a publi*374cation libelous *per se.*It is there stated: “To constitute a publication respecting a person libelous *per se,*it must appear that the publication reflects upon the character of such person by bringing him into ridicule, hatred or contempt, or affects him injuriously in his trade or profession.”

In the case of *Culmer*v. *Canby,*101 F., 195, it was stated by Day, J., in the opinion (after holding that “the innuendo may be treated as surplusage, and yet the publication be defamatory”), that it is a settled rule that published words “are actionable ‘when they impute to another any act, the tendency of which is to disgrace him or to deprive him of the confidence and good will of society, or lessen its esteem for him.’ ”

Libel *per se*in a situation such as presented in this case, is generally defined as defamatory words falsely published of a person, which impute unfitness to perform the duties of an office or employment of profit, or the want of integrity in the discharge of the duties of such an office or employment.

It is stated in 1 Cooley on Torts (4 Ed.), 491, Section 145, that any false and malicious writing published of another is libelous *per se*when its tendency is to render him contemptible or ridiculous in the public estimation, or expose him to public hatred or con tempt.

It is further stated in the same volume, on page 501, that “in determining whether the words charged are libelous *per se,*they are to be taken in their plain and natural import according to the ideas they are calculated to convey to those to whom they are addressed, reference being had not only to the words themselves, but also to the circumstances under which they were used. ’ ’

Still more pertinent to the instant case is- the rule applicable to public officers, as stated in 33 American *375Jurisprudence, 92, Section 79, as follows: “It is libelous *per se*to impute to a person in bis character as a public officer incapacity or any kind of fraud, dishonesty, misconduct, or a want of integrity, or to charge that he has been induced to act in his official capacity by a pecuniary or other improper consideration. ’ ’

Did the trial court err in rejecting the requested charge hereinbefore quoted and thereby refusing to direct the jury that the written publication complained of was libelous *per sel*In the opinion of the majority of the court, the language of the publication clearly charged that the plaintiff, as judge of the Municipal Court of Cleveland, not only granted to the defendant in the criminal case a continuance of his case, upon his application, but also that in so doing the plaintiff was motivated by the intercession of such defendant’s .politically powerful friends and by lawyers-for underworld fig’ures, who had influence and knew how to manipulate matters to obtain delays, and further that by granting the continuance to such defendant, plaintiff thereby afforded him an opportunity to commit murder and by reason thereof the blood of the victim was on the plaintiff. .

The action of the plaintiff thus charged by the publication was misconduct, in the performance of official duty, induced “by a pecuniary or other improper consideration” and such as to constitute misfeasance, if not malfeasance in office. It is well settled that a publication of such character is libelous *per se.*

Our conclusion with reference to the branches of the case thus far considered makes unnecessary the discussion in detail of several of the requested instructions or of the general charge. The general effect of the principal requested instructions of the plaintiff is that if the publication was false the claim of privi*376lege would not constitute a defense.

The record shows an admission that at the time of the publication complained of defendants knew that the plaintiff had not granted to the defendant in the criminal case a continuance of his case, and that the plaintiff’s only connection with the case was to grant the application of the prosecution for a continuance. The record further discloses that such application was made in open court and was granted upon the insistence of the prosecution on behalf of the state that by reason of the absence of material witnesses, the arresting officers, proof essential to support the charge was not then available. , As disclosed by the cases- annotated in 110 A. L. R., 412, the majority rule is: “In the majority of jurisdictions the rule that fair comment on' and criticism of the acts and conduct of a public officer or candidate for public office are, in the absence of- malice, privileged, does not apply, to a false statement of fact. In these jurisdictions, a defamatory statement of fact concerning one in public life, or who is a candidate for office, if false, is as actionable as would be such a statement concerning one in private life.” Cases from many jurisdictions, including Ohio, are cited in support of that rule.

The minority rule as indicated is that “the privilege extends to misstatements of fact in a publication or communication relating to a public officer, or a candidate for office, if the other conditions of qualified privilege exist.” It is there disclosed, however, that even under the minority rule it must appear that the publication was made in good faith and without malice.

In stating the general rule with reference to privilege it is said in 36 Corpus Juris, 1283, Section 289 :

> “What is privileged, if that is the proper term, is the criticism or comment, not the statement of facts on which it is based. Generally speaking, comment or *377criticism must be founded on truth. While ordinarily it does not consist of the assertion of -facts, an allegation of fact pray be justified by its being an inference from other facts truly stated. The right to comment or criticize does not éxtend to, or justify, allegations of fact of a defamatory character. If the publication is not a comment or criticism, but a statement of fact, the rules to be applied to the nature of recovery are those applicable to any other case of defamation; if defamatory and false, it is actionable, although made in good faith, without malice, and under the honest belief that it is true.”

No untruth can be the basis of fair criticism, and the expression of an opinion which carries with it the imputation of wrongdoing is as much libelous as a di.rect charge of wrongdoing. The statements of fact commented on must-be true if the defense of fair comment and criticism is to 'be available. See J ones on the Law of Journalism, 99, Section 35.

This rule is well stated in Prosser on Torts, 839, as follows:

> ‘.‘It is undisputed that there is a qualified privilege to publish matters affecting the interest of the general public, but there is some disagreement as to its extent. It is very well settled that the constitutional guaranty of freedom of speech and of the press does not confer upon a newspaper or anyone else the privilege of publishing defamation merely because it has ‘news value’ and the public would like to read it. But even as to the conduct of public affairs, which is a matter of legitimate public concern, immunity has been limited quite strictly in the case of false statements of fact, as distinguished from discussion in the form of comment or expression of opinion.”

■ The trial court committed serious affirmative error *378in the general charge such as in itself would require a reversal of the judgment. The court sought to submit to the jury the question whether the publication was libelous *per se*and then the court instructed the jury that “if the publication of this editorial, which publication is admitted, was false, was actuated by malice, with intent to injure this plaintiff in her profession or calling and did injure her, and if she has proven these necessary elements to you by a preponderance of the evidence, she is then entitled to a verdict at your hands.

> “If she has not proven to you these necessary elements, you would not- consider the case further, but would return a verdict for the defendants.”

> It is well settled as so concisely stated in 1 Cooley on Torts, 519, Section 150: “Where the published words are actionable *per se,*plaintiff, in order to make out a *prima facie*case, need not prove actual malice, since the law will imply malice of the character necessary to support a judgment.”

A principle often announced and frequently applied is that, where a court in the course of the instructions to the jury stated a correct rule or principle of law and also a prejudicially incorrect rule or principle of law on the same subject matter, no presumption arises that the correct rule or piinciple of law was followed and applied by the jury. *Bosjnak*v. *Superior Sheet Steel Co.,*145 Ohio St., 538, 62 N. E. (2d), 305.

In the instant case the broad and peremptory instruction, amounting practically to a directed verdict in favor of the defendants, if followed by the jury would necessarily result in a verdict adverse to the plaintiff. The two-issue rule can therefore have no application in this case.

In accordance with the views herein expressed, the judgment of the Court of Appeals is reversed and the *379cause remanded to the Court of Common Pleas for retrial.

*Judgment reversed and cause remanded.*

Zimmerman, Sohngen and Stewart, JJ., concur.

Weygandt, C. J., Turner and Hart, JJ., dissent.

Turner, J.,

dissenting. I am of the opinion that the motion for a directed verdict made at the close of plaintiff’s/evidence and renewed at the close of all the evidence should have been sustained. The petition, with its innuendoes, presented a deficient cause of action for libel *per quod.*Special damages constitute the sole basis of recovery in an action *per quod.*Special damages' were neither alleged nor proved. The decision in the present case is an apt illustration of the oft repeated phrase “hard cases make, poor law.” It has been truly said that formalism is the twin-born sister of liberty. Once the formal procedure for the protection of rights, civil or .criminal, is broken down, we will then have arrived in judicial process to a condition analogous to that which has developed, in the last two decades to be the procedure before many boards and commissions, whose members are alarmingly referred to as bureaucrats. There has been much proper and successful sneering at the observance of “mere technicalities.” However, we should not encourage pushing across the shadowy borderland into the realm of substance. Just as one charged with crime is entitled to know in advance the exact nature of the charge against him so as to prepare his defense accordingly, so, too, one charged with invasion of the rights of another is entitled to similar information.

Assuming that there was the error pointed out in the majority opinion, such error was invited by the plaintiff.

*380Section 11341, General Code, provides^:

> “In an action for a libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff. If the allegation be denied, the plaintiff must prove the. facts, showing that the defamatory matter was published or spoken of him. In such action it shall not be necessary to set out any obscene word, but it shall be sufficient to state its import.”

Instead of following the simple procedure provided in Section 11341, General Code, plaintiff sought to embroider, the publication with innuendoes stating her own interpretation of what the words of the publication meant. Where an innuendo is necessary to establish the meaning of an alleged libelous publication, such publication cannot be said to' be libelous *per se.*There may be instances where an innuendo may be treated as surplusage but such a case is not before us. Plaintiff’s explanation that the innuendoes were added merely out of excess of caution indicates that plaintiff was not certain that the publication was not ambiguous.

It is the duty of the court to determine whether the published words áre actionable *per se*and to instruct the jury accordingly. If there is any doubt about it, that is, if the meaning is ambiguous, the publication is not actionable *per se.*In determining whether the language used is libelous *per se*the court must seek-to ascertain the meaning which the words convey to the general public. What does the so-called man in the street understand was meant? Except on the question of malice the intent of the publisher is immaterial. Instead of relying oil the claim that the publication was actionable *per se,*plaintiff included innuendoes in her petition and thereby admitted the ambiguity of the meaning of the publication. The trial court was thus led to refuse' to charge that the words were libelous *381
      *per se*but did charge the jury as if the petition contained two causes of action, one on libel *per se*and one on libel *per quod.*The charge on *per quod,*however, being deficient as there was no allegation in the petition or evidence submitted alleging or tending to prove damage, the jury should have been instructed that the verdict should be for the defendants on that phase of the case.

I do not consider the charge otherwise than to illustrate the confusion caused by the J anus-faced petition. The innuendoes in the petition gave color to the claim of the defense that the publication was ambiguous and that the words did not mean what the plaintiff claimed in her innuendoes.

In case No. 30254, *Westropp*v. *E. W. Scripps Co.,*this court overruled a motion to certify the case of *Westropp*v. *E. W. Scripps Co.,*76 Ohio App., 463, 59 N. E. (2d), 205, in which latter ease it was held in substance that where a petition in an action for libel resorts to an explanation by innuendoes to establish the plaintiff’s version of the meaning of the publication, ambiguity is thereby admitted and that in a libel action an innuendo may not- be employed to enlarge or extend the import of the claimed defamatory language. In the instant case the majority of the Court of Appeals affirmed the trial court on the authority of the case last above mentioned being a case decided by Judges Montgomery and Sherick of the Fifth Appellate District and Judge Doyle of the Ninth Appellate District, sitting by designation in the Eighth' Appellate District from vfhich last mentioned district came the present appeal.

In this court some of the members are of the opinion that the meaning of the publication is ambiguous. With this situation before us, how can it be said that the meaning of the publication is clear and libelous *per sei*

*382Assuming' (as did plaintiff in her request for instructions before argument) that the trial court had the power to leave to the jury the question whether the publication was libelous *per se,*the jury by its verdict found such publication to be either not libelous *per se*or coming within the qualified privilege. No interrogatory was submitted. The trial court at plaintiff’s request instructed the jury before argument as follows :

> “It is the law of Ohio that any printed words which are published of another person, and which tend to subject that person to public hatred, ridicule or contempt, are actionable *per se.*

> “If, therefore, you find by the preponderance or greater weight of the evidence that the editorial and pictures which it is agreed between the parties were published in the *Cleveland Press*on August 19, 1942, and which are set forth in the plaintiff’s petition, caused the persons who saw said pictures and read said editorial to have hatred, ridicule or contempt for the plaintiff, then and in such event said publication of said words and pictures was libelous *per se,*and your verdict must be for the plaintiff.

> “Any statement in print which falsely accuses a judge of acting as such a judge without judicial integrity, or'.of laxity in official conduct which has a prejudicial or detrimental effect upon the public welfare, is libelous *per se.*

> “And if you find that the.editorial and the picture of the plaintiff which was published in the *Cleveland Press*on August 19, 1942, which is the subject matter of this action, falsely represented that the plaintiff gave a continuance of his case to one Nathaniel Spruiel and thereby contributed to '• bring about the murder of. the Elyria policeman, and that such false representation was understood by the persons to whom *383said newspaper was circulated as making that-accusation, and that thereby the plaintiff was brought into public hatred, contempt, ridicule or scorn, your verdict must be for the plaintiff; and this would be true irrespective of the motives, or the intent of the defendant; and likewise irrespective of whether or not the preparation and publication of said editorial and picture was actuated by express or actual malice on the part of any of the editors or reporters of the *Cleveland Press.*

> “One of the claims of the defendant is that the preparation and publication of the editorial and picture with which this case is concerned, was under the protection of a legal privilege. .

> “I say to you that if you find that said editorial and picture were printed and published in such a form as to indicate to those reading the newspaper that the plaintiff was morally responsible for the murder of the Elyria policeman, and that it was so understood by those to whom the newspaper was circulated, then it was libelous *per se,*and actionable *per*se; and unless you find that said statement was true, your verdict must be for the plaintiff; and in such event, the defense of privilege would be of no avail.

> “In order that the plaintiff recover a verdict in this case, it will be necessary for her to prove certain issues of fact by what is known as the preponderance or the greater weight of the evidence.

> “This does not mean, however, that in order to recover a verdict she is required to prove all or any of the issues of this case by clear and convincing evidence, nor by such a weight of evidence as excludes all doubt from your minds.

> “In civil cases of this character, the law deals with probabilities rather than with certainties. If, therefore, you find upon a consideration of all the evidence *384in this case, that with reference to any issue involved, the contentions of the plaintiff are more probably true than not, then and in such event, the plaintiff will have proven such issue by sufficient proof; and if you find that with reference to each and all of these issues of fact required by the law to be proved by her, her contentions are more probably true than not, then she will have proved her case by sufficient proof to support a verdict in' her favor; and this would be true even though there may still remain a substantial doubt in your mind in respect to some or all of such disputed ■issues of fact.

> “Under the law of Ohio the publication of defamatory matter which is false in fact and not privileged is presumed to be malicious; and the plaintiff may recover without any proof of malice; and the burden is upon the defendant to disprove it.

> “If your verdict in this case, under all of the instructions of law given you, is for the plaintiff, it will be your duty to award her such a sum in damages as will fairly and fully compensate her for all of the damage, suffering and loss which she has suffered already, or which with reasonable certainty she will suffer in the' future, as the direct result of the printing and publishing of the editorial and picture on August 19, 1942, in the *Cleveland Press.*

> “In order to recover such amount of compensatory damages, it is not necessary for the plaintiff to prove actual'or express malice upon the part of the defendant corporation or any of its editors or reporters.

> “But if you find that the plaintiff has shown by the greater weight of the evidence that the editorial and the picture were printed and published as a result of the complete and reckless and wanton disregard of plaintiff’s rights, that would warrant you in finding it was published as the result of express malice. Ex*385press malice, or actual malice does not mean that plaintiff must show actual hatred or individual malevolence qr spite. Express malice, within the legal meaning of that term, may be shown by evidence which indicates and establishes that the defendant acted from a reckless and wanton disregard of plaintiff’s rights.

> “If, therefore, you find for the plaintiff, that she is entitled to compensation for her damage, suffering, and loss; but find also that the defendant-was actuated by a reckless and wanton disregard of plaintiff’s rights, then you would have the right to award an additional amount of damages, by way of punitive damages, such as you think would be appropriate under all of the circumstances of the case; and in that connection you have the right to take into account the wealth of the defendant corporation; and if you make such an allowance of such punitive damages, you may also inr elude a further sum as a counsel fee for the fees of the plaintiff’s lawyers.”

• Near the end of the general charge the trial court said:

> “The charges in writing before argument which were read to you will go with you to your jury room. They are to be considered by you as part of the law applicable to.this case.”

Therefore, there can he no question that the jury had before it, *inter alia,*rightly or wrongly, at plaintiff’s request, the question whether the publication was libelous per *se.*.

As the petition contained no allegation of special damage and there was no application to amend and no evidence of special damage admitted or proffered, the court should have sustained the motion to direct a verdict made at the close of plaintiff’s evidence and renewed at the close of all the evidence. As substantial justice had been done in both the trial-court and the *386Court of Appeals the judgment below should,be af-1' firmed.

In 33 American Jurisprudence, 223, Section 243, the rule in cases of libel *per quod*is succinctly stated as follows-:

> ‘(But the rule is entirely different when the libel or slander complained of is actionable only *per quod,*for in such cases, special damages constitute the sole basis for a recovery and it seems to'be generally agreed that a complaint which fails properly to allege them is defective * * V’ See, also, 15 American Jurisprudence, 743, Damages, Section 302 *et seq.*

Weygandt, C. J., concurs in the foregoing dissenting opinion.

Hart, J.,

dissenting. The errors complained of by the plaintiff relate almost exclusively to the charge of the trial court. Even if there were errors in the charge, .they must have been prejudicial to the plaintiff in order to warrant a reversal of the judgment in favor of the defendants.

One of the issues in the case was the truth or falsity of the publication. If the publication was true, there could be no recovery. The general verdict in favor of the defendants must be regarded as a finding that the publication was true. A general verdict or one finding the issues joined in favor of one of the parties is a finding «for such party on all the issues in the case. *Sites*v. *Haverstick,*23 Ohio St., 626; *Calvin*v. *State,*12 Ohio St., 60, 72; *Fries*v. *Mach,*33 Ohio St., 52, 59; *Shaul*v. *Norman,*34 Ohio St., 157, 158. And a reviewing court must assume that all the facts were found by the trial court which the evidence in favor of its finding warranted, without reference to counter evidence. *Fortman*v. *Goepper,*14 Ohio St., 558, 562.

It is well settled that where there are several de*387fenses to an action, a general verdict and a judgment thereon must be sustained if one controlling issue has been tried free from error. Any error as to another issue will be disregarded. *Sites*v. *Haverstick, supra; Beecher*v. *Dunlap,*52 Ohio St., 64, 38 N. E., 795; *McAllister*v. *Hartzell,*60 Ohio St., 69, 95, 53 N. E., 715; *State, ex rel. Lattanner,*Deputy *Supt.,*v. *Hills,*94 Ohio St., 171, 113 N. E., 1045, L. R. A. 1917B, 684; *Niemes*v. *Niemes,*97 Ohio St., 145, 149, 119 N. E., 503; *Jones*v. *Erie Rd. Co.,*106 Ohio St., 408, 410 *et seq.,*140 N. E., 366; *Ochsner, Admr.,*v. *Cincinnati Traction Co.,*107 Ohio St., 33, 39, 140 N. E., 644; *Knisely*v. *Community Traction Co.,*125 Ohio St., 131, 132 *et seq.,*180 N. E., 654.

In my opinion there was no error in the charge as to the burden of proving the falsity. An averment in the petition and proof that a publication is false are unnecessary if the words of the publication are actionable *per se,*but indispensable if they are not. 33 American Jurisprudence, 221, Section 242; *Turner*v. *Brien,*184 Iowa, 320, 167 N. W., 584, 3 A. L. R., 1585. In my view, for reasons hereinafter stated, the publication was not libelous *per se.*Therefore, the judgment in the instant case, based on a verdict finding the publication not false but true, should be sustained.

Another issue determined by the jury’s verdict was that the plaintiff did not suffer damages as a result of the publication. In case a publication is libelous *per se,*the plaintiff may recover damages without limit, even though he has not suffered a cent in actual damages. If, on the other hand, the publication is not libelous *per se,*even though it be false, he may recover only such actual damages as are shown to have been suffered by him. 33 American Jurisprudence, 222, Section 243; *Schoedler*v. *Motometer Gauge & Equipment Corp.,*134 Ohio St., 78, 15 N. E. (2d), 958; *Bige*
      *388
      *low*v. *Brumley,*138 Ohio St., 574, 37 N. E. (2d), 584; *Hunt*v. *Meridian Printing Co.,*17 C. C. (N. S.), 293, 32 C. D., 151, affirmed, 87 Ohio St., 522, 102 N. E., 1128.

Whether a publication, considered alone, is libelous *per se*is a question for the court; but if the publication requires the proof of an innuendo, as assumed by the plaintiff in this case, to show that it is libelous *per se,*a jury question is presented as to whether the inferences to be drawn from the publication sustain the innuendo. In other words, a question of fact is presented as to whether the publication bears the interpretation charged in the innuendo. Under the rule above stated, the jury evidently found that the innuendo was not sustained and that the publication was not libelous *per se.*

In the instant case, the real substance of the charge made in the publication, stripped of all innuendo and emotional claims, was that the plaintiff abused her discretion in the matter of granting a continuance’in a criminal action pending in her court. It did not charge her with any professional incapacity, delinquency of character, or with any act of morál turpitude involving fraud or dishonesty.

In my opinion, the petition and the evidence in support of it failed to make a case of libel *per se.*Since the petition did not allege any special damages and since none were proven, the verdict of the jury and the judgment thereon were justified by the jury’s finding -on this issue.

Here again, there was no error in the charge of the court on this issue which was or could be prejudicial to the plaintiff. Applying the two-issue rule supported by the cases already cited, the judgment for the defendants should be sustained.