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

*464(No. 19757

Decided December 13, 1944.)

*Messrs. Harrison & Marshman,*for appellant.

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

Sherick, J.

Judge Lillian Westropp, one of the duly elected judges of the Municipal Court of the city of *465Cleveland, in her amended petition, claims to have been libeled by the Cleveland Press and its editor, Louis B. Seltzer, in a cartoon published on August 14, 1942; a quarter million copies of which were distributed in its editions of that day.

This cartoon is titled “One on the House.” ' It depicts a bar room scene. Two persons are present. The mirror in the back bar bears the legend “Lil’s Lil Place.” The front bar is labeled “Judge Lillian Westropp’s Bar of Justice.” Behind this bar stands a woman shaking a cocktail shaker labeled “Liquor Law Acquittals.” Her apron bears the word “Lil.” Seated before the bar .is a convivial character with a bulbous nose. The back of his coat says “Liquor Law Violator.” This character is saying “Gimme one o’ your ‘not fit for human consumption’ acquittal specials, Lil,” and “I know your pal, Gerald Doyle.” The facial expression of both characters exhibits mirth. The front bar, minus its foot rail, resembles a small court room judicial bench.

The amended petition contains the statement that the picture intended it to be understood that plaintiff was personally immoral and corrupt; and that, as a judge, she was corrupt, a bribe taker and willing to sell justice and discharge liquor law violators. Further, it is pleaded specifically that the intended innuendo deducible from the cartoon’s title and back bar legend is that plaintiff’s court room is a disreputable place or house of ill fame, like unto that of the notorious literary character known as “Diamond Lil”; that the front bar legend intends to convey the idea that her court is corrupt and a place wherein injustice is judicially administered; and that the words attributable to the bar patron were intended to mean that, in a recent liquor case tried before plaintiff, she had for corrupt and wicked reasons acquitted a law violator whose trial counsel was her intimate friend.

*466Next it is averred that the cartoon was intended to cast hatred, contempt, ridicule and scorn upon her, exhibit her unfitness for a position of honor, impair her reputation for probity, morality, honesty and ability as a citizen, lawyer and judge, and to forestall her future re-election. She further pleads that the several legends, meanings and innuendoes were wickedly false and untrue, known by the defendants to be such, and were published with calculated malice with intent to cause grievous harm to plaintiff and to advance the newspaper’s pecuniary interests; and that she has sustained serious and irreparable harm to her reputation as a citizen, lawyer and judge, and suffered great embarrassment and humiliation by reason thereof.

Defendants jointly answer plaintiff’s pleading. After admitting its formal averments and publication of the cartoon, they proceed to say that on August 2d, a notorious character, one Weinzimmer, together with others, were arrested and charged with operating a place where whiskey was sold in violation of city ordinance and state law; that Weinzimmer was to have appeared before the court the next morning, but that his counsel, Gerald Doyle, procured of plaintiff a continuance to August 11th, at which time Weinzimmer’s case proceeded to trial; and that on conclusion of the state’s case, plaintiff, as judge, discharged Weinzimmer on his counsel’s motion, because the prosecution had failed to prove that the liquid charged to have been possessed and sold “was fit for beverage purposes.” Defendants further plead that prior to and concurrently with the publication of the cartoon, the E. W. Scripps Company published certain news articles in its editions, regarding the occurrences in the Weinzimmer case, and that each of such articles truthfully represented the happenings in a case publicly heard in a branch of the Municipal Court: Copies of those articles are attached to and make part of their *467answer. They further say that Weinzimmer’s counsel, Gerald Doyle, was plaintiff’s friend, and that he had been active in plaintiff’s judicial campaign. It is averred “that the cartoon fairly portrayed the justifiable opinion of the Cleveland Press, based upon facts occurring in the Weinzimmer cases and the actions of the plaintiff therein, and that said facts had been theretofore or were concurrently truthfully published.”

As a second defense, defendants say that publication of the cartoon “was the publication of a fair and honest discussion of comments on or criticisms of a matter of public interest and that such publication was made only after due diligence had been exercised by defendants to ascertain the truth of the facts on which the comment or criticism was based and that such publication is therefore privileged.”

A third defense states that publication “was made after due diligence to ascertain the truth on which the comment was based with good motives and for justifiable ends and was fair comment on the official conduct of a public officer and is therefore privileged.”

The fourth defense avers .that publication “was based upon information received from sources which it believed to be reliable.”

The reply admits that defendants published the articles pleaded, but denies that they truthfully and fairly repeat the circumstances or events of the Weinzimmer hearing and trial, or that they fairly portray the justifiable opinion of the Cleveland Press.

So stood the issues at trial. The jury returned a verdict in defendants’ favor, upon which verdict judgment was entered and from such judgment' plaintiff now appeals on numerous questions of law, nearly all of which go to the trial court’s theory of the law applicable and its charge to the jury.

Plaintiff complains of the court’s general charge in six respects. And inasmuch as the fifth specification *468thereof is in the main determinative of the preceding four, we shall consider it first. Plaintiff would have it that the court should have instructed the jury that the cartoon was libelous *per se,*that is, as a matter of law, and that when it submitted that question to the jury as a matter of fact, it grievously erred. It will be recalled from plaintiff’s petition that the claimed libel is predicated solely upon the cartoon, and thereafter innuendo is resorted to, to charge falsity, malice, intent to defame and special damage, all four of which are inferable if the picture'’is libelous in and of. itself. Or is it only libelous *per quod?*If the latter be true, then the trial court did not err.

The general rule is found stated in 33 American Jurisprudence, 220, Section 241, that “since the office of the innuendo is merely to explain, the authorities agree that it cannot be used to aver a fact, introduce new matter, or alter, enlarge, extend, or restrict the import of the language theretofore set out.” It is therefore our judgment that when plaintiff resorted to explanation by innuendo to establish her version of the intent of the cartoon with its legends, she conceded that different minds might draw different conclusions therefrom. In other words, she admitted ambiguity therein. As is said in *Shaw Cleaners & Dyers, Inc.,*v. *Des Moines Dress Club,*215 Iowa, 1130, 245 N. W., 231, 86 A. L. R., 839:

> “Words which are libelous *per se*do not need an innuendo, and, conversely, words which need an innuendo are not libelous *per se.”*

Defendants’ evidence, which comports with their pleading, tends to establish an entirely different aspect to such innuendoes as are reasonably deducible from the cartoon and its legends.

The trial court charged the jury that there was a total absence of proof of any immorality on the part of Judge Westropp or that her court room was a disrep*469utable place. The record substantiates this fact and the correctness of the court’s instruction. A further matter testified to by plaintiff and not subject to dispute, is that she attempted to follow what she considered as a precedent set by her superior, the Eighth District Court of Appeals, whose personnel is now completely changed, in *Hendershot*v. State; 14 Ohio App., 430. With these two observations in mind, together with the fact that the other district appellate courts in the state, as evidenced by their reports, were then far more liberal in the quantum of proof necessary to establish that liquor illegally possessed and sold was “fit for human consumption,” we now propose to analyze defendants’ evidence with respect to the innuendoes deducible from the cartoon as they say were intended.

Defendants proved that the prosecution in the Weinzimmor case had offered proof that he was a law violator; that the place was unlicensed; that the liquid, possessed and served a crowd of patrons when the raid was made, smelled and tasted like whiskey; that some exhibits were seized and analyzed and found to contain alcohol in excess of that allowed to be sold without permit; and that the bartender proceeded to destroy evidence; but when the city chemist stated that he had not examined the state’s exhibits for poisons allergic to the human body, the court proceeded to discharge Weinzimmer upon his counsel’s motion for the reason that the state had failed to prove that the liquid was fit for human consumption.

Defendants claim that their evidence in substance establishes that they, through the medium of the Cleveland Press and its cartoon, were fairly and honestly attempting to ridicule, criticize and correct the rule of the *Hendershot ease*as applied by Judge Westropp in the *Weinzimmer case*because it was an unsound precedent, inimical to law enforcement and public wel*470fare; and that in so doing, even if it did lampoon Judge Westropp, they were performing a public service under a qualified privilege. Hence it is perceivable that the cartoon is susceptible of an entirely different innuendo than that claimed and explained by plaintiff. In the recent case of *Gartman*v. Hedgpeth, 138 Tex., 73, 157 S. W. (2d), 139, 138 A. L. R., 666, it is held that:

> "If the language actually used by the defendants * * * admits of no ambiguity, the innuendo averments were of no avail * * *. If it presents ambiguity, it is tested by what effect the language would have upon the mind of the ordinary reader and it would be for the jury to determine whether to such ordinary mind it suggested what plaintiff, in his innuendo averments, claims it suggested.”

*Lancour*v. *Herald & Globe Assn.,*111 Vt., 371, 17 A. (2d), 253, 132 A. L. R., 486, conforms to this rule wherein the court says that:

> "If such language is ambiguous and admits of more than one meaning, it is, when necessary to ascertain the meaning, for the jury to say what it means; but if the language is not ambiguous, and does not admit of more than one meaning, it is for the court to say what it means.”

We therefore hold that the cartoon and its legends were not libelous *per se,*and that the court properly submitted this question of mixed law and fact to the jury.

Specifications of error one to four complain in that the court charged the jury that the burden of proof was upon plaintiff to establish falsity, intent, damage and malice. It is, of course, the general rule that he who affirms must prove, unless, as in libel *per se,*one is advantaged by presumptions which spring from libelous documents which are clearly so, without explanation or innuendo. If, as in the present instance, the libelous matter is susceptible of more than one under*471standing and is therefore ambiguous, the presumptions disappear and the general rule ought to and does apply. We believe that this understanding is generally held to be true in the matter of proof of malice and damage. These subjects are considered in 33 American Jurisprudence, 247 *et seq.,*Sections 266 and 282. Therein the author states that:

> “In actions for defamation, the courts ordinarily indulge a *prima facie*presumption that defamations which are actionable *per se*are malicious. In the case of defamations which are actionable only per *quocl,*malice is not implied in law, but must be shown. ’ ’

> “Where the defamation is actionable only *per quod,*proof of the special damages * * * and the burden of showing such damages ® * * rests upon the plaintiff.”

The burden of proof upon the issue of falsity in libel *per quod*is less generally settled, due in part to a failure to distinguish between civil and criminal libel wherein any such presumption is or ought to be countered by a presumption of innocence; and to a failure of some jurisdictions to perceive any distinction between actions *per se*and *per quod,;*or to take cognizance of the fact that where a defendant has made out a case of qualified privilege, undisturbed by any proof of express malice; or in those jurisdictions where truth is made a complete defense to such charges. To us, however, it seems the better rule that the general one be followed in *per quod*cases where proof has been made by a defendant which tends to establish the defense of qualified privilege. Why ought this not to be so? If a plaintiff is permitted to recover he should do so upon the strength of his own case. He should prove the issues that are essential to his right of recovery. We see no sound cause for extension of the rule’s exception in *per quod*cases when the reason therefor in eases *per se*is no longer present.

Plaintiff argues strenuously that it is ridiculous to *472require a plaintiff to prove falsity and at the same time place the burden of proving truth upon, the defendant. It is true that each is the converse of the other, and that it does seem strange that one party be required to prove the affirmative and the other litigant to prove the negative of the same issue. But is it not the fact that plaintiff loses sight of the jury’s prerogative in cases based on innuendo which are ambiguous to determine whether the defamatory matter is actionable *per se*or *per quocl?*If it should find the former, then falsity is presumed and plaintiff need not prove it; but if defendant proves qualified privilege plaintiff may not recover unless plaintiff proves express malice. Neither may plaintiff recover if defendant proves the defamatory matter to be true. But if in such a case the jury find the matter to be libelous *per quod,*plaintiff must prove falsity to insure recovery. However, if defendant cannot establish privilege, he still has a second defense, that is, the truth of the matter published. Truth is an affirmative defense. Its interposition is not compulsory. If defendant would avail himself. thereof, he should be made to prove the issue. In the final analysis, the jury must weigh all the evidence and find whether plaintiff’s evidence proved ■ falsity or defendant’s evidence proved truth. It cannot find both to be true. If it find falsity proven, the defendant’s issue of truth must of necessity be resolved negatively and plaintiff will prevail. We do not perceive anything incongruous in such a course. The jury herein seems to have encountered no difficulty.

With respect to the claimed error in the court’s charge that the burden was improperly placed upon plaintiff to prove that defendants published their' cartoon in furtherance of an intent to injure her character and reputation it must be kept in mind that plaintiff in six of the eight paragraphs of her stated cause of actioil specifically charged that all of which *473she complained was done by defendants and “intended” by them to injure her. A seventh paragraph infers a like motive. She not only prays for compensatory damages but for punitive damages as well. The element or issue of intentional injury is of considerable importance in the award of punitive damages. It may and should play an important part in determining the amount thereof. Plaintiff vehemently stressed that charge and made it an issue which defendants were compelled to meet. We do not think that plaintiff should be heard now to complain of that which she provoked. The- rule is that where a litigant leads a court into commission of error, that party may not be heard thereafter to complain thereof. A second reason suggests itself. Surely where one relies on innuendo, that which was intended to be inferred therefrom is so closely related to the issuable elements of libel as to be inseparable therefrom.

Neither does this court find that the trial court erred in failing to separate and define the issues of the case. There was no mere reading of the pleadings. We think the court, in view of a dirth of Supreme Court precedent, did a creditable job in its instructions to the jury on the law which should govern its deliberation. It correctly defined the issue. If it is subject to any criticism it is one of sequence rather than a non-conformance to the rule of the *Lockwood case.*Counsel were asked at the conclusion of the charge if they had any suggestion. The replies to the query were, “None, your Honor.”

Plaintiff next complains of the court’s refusal to give plaintiff’s special requests Nos. 2, 6 and 7 before argument. Request No. 2 is rather long. It has to do with plaintiff’s theory that if the jury found the cartoon was intended to depict Judge Westropp as a corrupt judge devoid of judicial integrity the jury’s verdict must be for plaintiff. It is predicated on plaintiff’s *474theory that she need not prove falsity, which is contrary to what this court has hereinbefore held, and that defendants could be relieved from liability only upon proof of the defense of truth. It entirely ignores the issue of qualified privilege, proof of which would likewise require a verdict in defendants’ favor For the two reasons indicated, we hold the request to have been refused properly.

Request No. 6 reads: “With respect to the defense of privilege, which is pleaded by the defendant, I say to you that there is no privilege with respect to the report of a judicial proceeding, unless the report is accurate and impartial in its account of what actually occurred in the proceeding.” This charge was refused correctly for several reasons. The only defamatory matter of which plaintiff complained was the cartoon, which is clearly not a report of a judicial proceeding. She did not aver that the prior and contemporary news articles, which defendants claimed and proved were a true and unbiased report of a judicial decision, were libelous. What the defendants actually did plead was that the cartoon fairly portrayed the justifiable opinion of the Cleveland Press upon the facts of the Weinzimmer case and the court’s action thereon, and that it fairly and honestly exhibited its criticism on a matter of public interest and was fair comment on the official conduct of a public officer.

Request No. 7 is in this language: “While it is the right of the press, as it is of individuals to freely criticize and comment upon the official action and conduct of a public officer, false and defamatory words spoken or published of him as an individual, are not privileged on the ground that they related to a matter of public interest, and were spoken or published in good faith.” This request is a correct statement of law where a plaintiff has pleaded and proved that defamatory matter has been published of a public officer *475in Ms individual capacity. It is true that plaintiff pleaded that the cartoon libeled her in that an innuendo deducible therefrom depicted her as an immoral' and corrupt woman conducting her court room in a disreputable manner as a house of ill fame. No tendered evidence in proof of any such innuendo was received in evidence. No proof of the pleaded issue having been made, it should be clear that the request was not responsive to an issue that the jury must solve. It was therefore properly refused. We note that, the court in its general charge specifically cautioned the jury to disregard the matter of personal defamation for the reason no proof had been made thereof.

Plaintiff, however, further urges that this request was proper because of another error committed by the trial court. During the course of trial, evidence was introduced to establish how the cartoon came into existence. It was shown that a free lance artist drew it. When first offered to the Cleveland Press the legend on the back bar read'“ Diamond Lil’s Place.” Editor Seltzer refused to purchase and publish it until the word “Diamond” was removed, because he wanted the cartoon directed exclusively to the court and no place else. It further appears that a motion picture, starring an actress specially talented in emotional roles, and known as “Diamond Lil,” had previously been shown in Cleveland. This picture, so plaintiff says, showed bar room scenes where prostitutes congregated and depicted “Diamond Lil” as its proprietor; and the Cleveland Press advertised and commented unfavorably upon this picture.

It is apparent that plaintiff was seeking-by this line of evidence to develop her pleaded innuendo and make proof thereby that the cartoon was defamatory of her character as an individual. It is equally clear that in order to accomplish this purpose, plaintiff as a fact *476must write into the cartoon’s back bar legend the word “Diamond,” which does not appear in the picture, and which Editor Seltzer refused to purchase and publish until the word was deleted therefrom. This last fact is not controverted.

Here is a definite attempt to use the office of an innuendo, not merely to explain, but to enlarge and extend the import of the claimed defamatory language, contrary to the general rule hereinbefore quoted from 33 American Jurisprudence, 220, Section 241. Except as to proof of origin of the cartoon, the court instructed the jury to disregard this evidence. We think that the court was right in so doing.

It is maintained that the trial court committed further error in its refusal to permit the introduction of a subsequent editorial which plaintiff claims exhibits defendant’s malice towards plaintiff. This editorial has been made the subject of a second independent action. It concerns an entirely unrelated matter. It is styled “Blood on our Judges.” It reproaches and criticizes four municipal court judges, one of whom is Judge Westropp, for granting continuances in a criminal case against one Spruiel, a notorious Cleveland vice figure. During the course of these continuances, Spruiel killed one person and wounded a police officer. If this editorial exhibits malice, even though it be in an unrelated matter, it was of course admissible for that purpose. The trial court exhibited a knowledge of the fact that our Supreme Court had so held. See pages 90 to 94 of the record. When these pages are examined, it appears that during the statement of plaintiff’s case by her counsel, reference was made to the “Blood on our Judges” editorial. Whereupon defense counsel stated that they were not ready to try the second case, and if this evidence was to be admitted, then defendants were asking for a continuance. The record is not explicit; however, it is reasonably clear that the court was disposed to grant *477a continuance. Counsel for plaintiff evidenced an intention to waive the point and trial proceeded:

The record discloses that plaintiff’s- counsel proceeded to state he again wished the record to show he renewed his application to the court for permission to show for a limited purpose only of establishing malice, the “Blood on our Judges” editorial. Defendants objected and the court sustained the objection.

To this claimed error, oiir first comment is that it is' totally inconsistent with plaintiff’s prior claim on the burden of proof on the issue ,of malice in the court’s general charge. Second, plaintiff’s counsel seemingly acquiesced in the court’s conclusion made during plaintiff’s statement of her case; at least the court and opposing counsel were so led to believe. This being true, it was hardly proper that plaintiff again insist upon the editorial’s competency. To our notion that had ceased to be the major question. It had become one of court ethics. We think the court was entirely within* its rights in refusing its admission.

Defendants inform us that there is but one reported case, *Gambrill*v. *Schooley,*95 Md., 260, 52 A., 500, 63 L. R. A., 427, which considers the question of admissibility of a prior or subsequent defamatory statement for the purpose of proving malice, when it is the subject of an independent pending action for defamation. We find no other. The conclusion expressed by the Maryland court that such is not admissible appeals to this court as a fair exception to the general rule adopted by our Supreme Court, which has never considered the precise point confronting this court.

If plaintiff is permitted to insist upon the document’s admissibility, then two or more libel actions may, without consolidation, be tried in each of the two or more’ cases: At least the principal issue of malice may be so tried. It might well inflame the juries and result in unconscionable verdicts which a court’s cautionary charge could remedy only by entering remittiturs or *478by granting new trials. It would also promote confusion. It would require the trial court to find as a matter of law that the subject matter of the second pending action not then being tried was libelous *per se*in advance of trial. If it were not defamatory on its face without the aid of innuendo, it could hardly be fair proof of malice. There are a number of instances when tendered evidence is competent and relevant to the point in issue, but is not received in evidence for obvious sound reason.

It is finally urged that the verdict is against the weight of the evidence and that a new trial should have been granted. We do not so find.

Wo find no error in this case prejudicial to the rights of the plaintiff (appellant). The judgment may be affirmed.

*Judgment affirmed.*

Montgomery, P. J., and Doyle, J., concur.

Montgomery, P. J., and Sherick, J., of the Fifth Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.