Summary
discussing testimony of members of the African-American community on their understanding of the phrase "an Uncle Tom"
Summary of this case from Croce v. N.Y. Times Co.Opinion
No. 39016
Decided July 28, 1965.
Libel — Per quod — Not actionable without proof of special damages — No evidence of special damages — Jury verdict for plaintiff set aside.
1. Where the words of a publication are not libelous per se but are claimed to be so by innuendo, such words can only constitute libel per quod and are not actionable in the absence of proof of special damages to the one claiming to be libeled. ( Becker v. Toulmin, 165 Ohio St. 549, approved and followed.)
2. Where there is a total lack of evidence of special damages to the plaintiff attributable to a claimed libel per quod, a judgment rendered upon a jury verdict for the plaintiff will be set aside.
APPEAL from the Court of Appeals for Summit County.
The defendant, appellant herein, is an Ohio corporation engaged in publishing a newspaper known as "The Cleveland Call and Post."
The plaintiff is a woman 60 years of age, long active in community affairs and in Democrat party politics in the Akron, Ohio, area. She is a wife and mother of three children and is highly regarded in her community. In connection with the following matters, it is important to note that she is a Negro.
The defendant printed and published in The Cleveland Call and Post a headline article accompanied by a picture of the plaintiff. The article purported to be a factual report of an occurrence at a public seminar conducted by the then Governor, Michael V. DiSalle, in Akron, Ohio, on about March 6, 1962. The article appeared in the March 10 issue of The Cleveland Call and Post and contained this large headline, "Angry DiSalle Calls Akron Woman `Uncle Tom.'"
The article then went on to say:
"Akron — Gov. Michael V. DiSalle, whose frankness on some subjects keeps him on the political frying pan, berated Mrs. Bertha Moore, a veteran Democratic worker, for `gross ingratitude' to the party.
"The Governor made the remarks in Akron before a group of Negro Democrats who met while the governor held a legislative seminar at the University of Akron last Tuesday.
"Leading Akron Democrats complained that very few Negroes of their city had obtained state jobs under DiSalle's administration.
"They asked the governor to explain why little recognition had been given to the Negro of Akron.
"The governor said that he was powerless to act because state jobs were controlled by the State Civil Service Commission.
"And then, turning towards Mrs. Moore, the governor using a cross-examination technique queried:
"`Mrs. Moore, how long have you been a license plate registrar?'
"She replied: `Since 1948.'
"`Over the years, the party has taken care of you well for the things that you have done, wouldn't you agree, Mrs. Moore?'
"She replied, somewhat meekly, `Yes.'
"Then DiSalle blurted out: `In every minority group there are Uncle Toms who are detrimental to the progress of the group.'
"`Here is a lady who has been well rewarded for the things that she has done and for some things she hasn't done,' the Governor said."
This article is the publication which is claimed to be libelous. Plaintiff's petition says that the article "branded the plaintiff as an `Uncle Tom,' as a person who was a detriment to the progress of her Negro minority group, as a person who was guilty of gross ingratitude to her political party and who had received and accepted rewards for service she had not performed * * *."
It is uncontroverted that Governor DiSalle did discuss the phrase, "Uncle Tom." In the record the following questions and answers of a witness are reported:
"Q. In what connection did he [Governor DiSalle] use the phrase `Uncle Tom'? A. He said in all minority groups, he said, there are some people who work for themselves, self aggrandizement, and that's when he brought in about Uncle Tom.
"Q. What did he say? A. Every group has some Uncle Tom to work for themselves or whatever they can get at the expense of everybody else.
"Q. What did he say with respect to his attitude toward Uncle Toms? A. Well, he would have no dealings with them."
Further on the following question was asked also of Mrs. Moore:
"Q. Did he use that phrase with reference to you, Mrs. Moore? A. Oh, no."
Governor DiSalle admitted questioning Mrs. Moore and asking her how long she had served as a deputy motor vehicle registrar and whether she did not feel that the party had demonstrated an appreciation for her services. Governor DiSalle also stated that in the course of the discussion with the Negro group, but not relating to Mrs. Moore or anyone there, he had stated that some candidates for office or some office holders did use the "Uncle Tom" technique. Governor DiSalle admitted stating at the March 6 meeting, "I detest `Uncle Toms'." and making that statement in the presence of a group in which Mrs. Moore was a member but not directing same towards Mrs. Moore.
Suffice it to say that the article concerning Mrs. Moore, while to some degree factual, was not sufficiently factual for this court to hold it fair comment as a matter of law. After a great deal of evidence was presented on the matter, the trial judge held that the alleged libel was not per se and thus submitted the case to the jury which found by way of a special verdict as follows:
Question No. 1.
"Do you find by the greater weight of all the evidence that the statement in the defendant's newspaper on March 10, 1962, that Governor DiSalle called the plaintiff `An Uncle Tom' was false? A. Yes."
Question No 2.
"Do you find by the greater weight of all the evidence that the name `Uncle Tom' as attributed to the Plaintiff in the newspaper edition of March 10, 1962, imputed to her conduct that tends to harm her reputation and lower her in the estimation of the community and deter persons from associating or dealing with her? Answer: Yes."
Question No. 3.
"If your answer to question No. 1 is `yes', then answer this question: Do you find by the greater weight of all the evidence that the name `Uncle Tom' attributed to her as contained in the newspaper account of March 10, 1962, proximately caused the plaintiff any monetary loss in her business in selling motor vehicle license plates? Answer: Yes."
Question No. 4.
"Do you find by the greater weight of all the evidence that the defendant published said account of the March 6, 1962, meeting as contained in Plaintiff's Exhibit 1, with actual malice? Answer: Yes."
Question No. 5.
"In the event your answer to question No. 1 is `yes' and your answer to question No. 4 is `yes' then answer this question: Do you find by the greater weight of all the evidence in the exercise of a sound discretion on your part that the plaintiff should be awarded a reasonable and fair amount of money as compensation for the professional services of her attorney in prosecuting this lawsuit? Answer: Yes."
Question No. 6.
"If your answer to question No. 1 is `yes,' then answer this question: What amount of money do you find would be fair and reasonable for such professional services rendered by plaintiff's attorney in prosecuting this action as shown by the greater weight of all the evidence? Answer: $2,000."
Question No. 7.
"In the event your answer to question No. 1 is `yes,' and your answer to question No. 3 is `yes,' then answer this question: What amount of money do you find represents reasonable and fair compensation for the monetary loss in the sale of motor vehicle license plates and pain, humiliation and embarrassment that the greater weight of the evidence shows that the publication on March 10, 1962, that the Governor called the plaintiff `An Uncle Tom' proximately caused her to sustain? Answer: $5,000."
The jury in its special findings went on to find that the plaintiff was entitled to punitive damages in the amount of $25,000, thus making a total award of $32,000, and further found that the article printed was not a reasonable, fair and impartial account of what happened.
The Court of Appeals affirmed the judgment. In its opinion the Court of Appeals indicated that the petition sets out a good cause of action for libel per se.
Messrs. Hinton, Konstand Landi and Mr. James R. Hinton, for appellee.
Mr. W. Howard Fort, Messrs. Brouse, McDowell, May, Bierce Wortman and Mr. Clarence W. May, for appellant.
It is apparent that the validity of the plaintiff's judgment depends upon two questions. One, are the words, "Uncle Tom," libel per se, and two, if such words are not libel per se are the words libel per quod and did the plaintiff, as she must in a case of libel per quod, prove special damages.
To be libelous per se words must be of such a nature that courts can presume as a matter of law that they tend to degrade or disgrace the person of whom they are written or spoken, or hold him up to a public hatred, contempt or scorn. Digest Publishing Co. v. Perry Publishing Co., 284 S.W.2d 832.
Judge Stewart, in a leading Ohio case, Becker v. Toulmin, 165 Ohio St. 549, points out that it is well settled in Ohio that in an action for libel the question of 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 of whether the publication is libelous per se. Mauk v. Brundage, 68 Ohio St. 89, is cited and quoted in that opinion as is Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118. In the Becker case, supra, at page 556, Judge Stewart said:
"If the court can not determine a publication to be libelous per se as a matter of law, it may not allow the jury to do so as a matter of fact. * * *
"We come now to a discussion of another kind of libel, to wit, libel per quod.
"Libel per quod may occur where a publication, which, of itself, or per se, is not libelous, becomes so by the use of an innuendo rendering the apparently harmless words into libelous ones by extrinsic evidence or, as is said, aliunde, as distinguished from per se.
"In the present case, plaintiff claims that the cablegram and letter, although they do not of themselves proclaim that defendant had discharged plaintiff for lack of professional competence, were capable of suggesting to a reasonable reader that defendant had discharged plaintiff for such reason; that it was proper to submit that question to the jury; and that, if the jury found that a reasonable reader could find the words libelous, the publication was libelous per se.
"We are unable to approve such doctrine. It constitutes a contradiction of terms. Libel per se means libel of itself, or upon the face of a publication, whereas libel per quod is libel by an interpretation, through an innuendo, between an innocent or harmless meaning and a libelous one.
"If a publication can by innuendo be construed to be either nonlibelous or libelous, the question may be submitted to a jury provided special damages have been pleaded and proved by the one claiming libel. There can be no maintenance of an action for libel per quod in the absence of proof of special damages" (citing Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118).
The foregoing long quotation is extremely apt in the instant case. The words, "Uncle Tom," have no commonly understood opprobrious meaning to one who is not knowledgeable in the language of the comparatively recent militant civil rights movement. The term "Uncle Tom" takes its definition from the character in Harriet Beecher Stowe's "Uncle Tom's Cabin." One visualizes that character as loyal, patient, humble and long suffering. Since this is a commonly accepted meaning of the term as indicated in Webster's New International Dictionary (2 Ed), the plaintiff, under the case cited, was required to prove the innuendo and the damage.
The innuendo was pleaded. The petition says, "branded the plaintiff as an `Uncle Tom,' as a person who was a detriment to the progress of her Negro minority group, * * * as a person who was disloyal to her race * * *." Mrs. Moore testified that the phrase, "Uncle Tom," as directed to a person has an established meaning in ordinary usage today among the Negro population generally as "a person who will sell out his community, his race, who will do things for himself rather than for his people * * *."
Mr. Edward Jerome Davis, another highly regarded member of the Negro race and prominent member of the Democrat party was called as a witness for the plaintiff and testified that "Uncle Tom" meant to the Negro community "a person who for selfish reasons would sell — we use the term `sell out'."
The Reverend Mr. Lynton defined an "Uncle Tom" as a "Judas Goat" but further testified that there is a difference of opinion in the Negro community as to what constitutes an "Uncle Tom."
The trial court during the trial specifically ruled that the words, "Uncle Tom," if libel at all were libel per quod. For this reason the meaning or innuendo of the words required a fourth of this record and the special verdict included (without objections of plaintiff) special findings as to whether the words, "Uncle Tom," imputed to the plaintiff conduct tending to harm her reputation and lower her in the estimation of the community and deter people from dealing with her.
Since such words are libel per quod the claim of the defendant that there was no evidence of special damage sufficient to sustain such an action becomes most important. The petition does not plead special damage although the law requires a plaintiff in such an action to do so. The petition claims that Mrs. Moore suffered money damages in the amount of $10,000. This is a most general allegation. Cases involving allegations which are sufficient to permit recovery of special damages from false publications are collected in an annotation in 86 A.L.R. 848. Those cases require that the particular contracts, sales, customers, patients or clients lost must be alleged as a prerequisite to recovery of special damage. The cases in this annotation are numerous and persuasive.
The failure to plead such special damages would have barred proof of such; but none was offered. The evidence which the plaintiff presented to prove special damage concerned the claimed monetary loss in plaintiff's business of selling automobile license plates. That testimony, considered most favorably to the plaintiff's claim, would show a difference in sales for the year 1961 (before the alleged libel) of 1,800 plates sold, for the year 1962 (after the alleged libel) of 1,600 plates sold. The difference in gross profit to the plaintiff did not exceed $70. It was not shown that this difference was attributable to the claimed wrongful conduct of the defendant. There is no evidence that a single person who intended to or might have been an applicant for license plates read the article and by reason thereof abstained from buying a license plate from the plaintiff. Such proof is essential. Newell, Slander and Libel, Fourth Ed., Section 755, page 842; Gatley, Libel and Slander, 2d Ed. 677; Bigelow v. Brumley, 138 Ohio St. 574; Schaffhauser Bros. v. Hemmer, 152 Iowa 200, 131 N.W. 6; Del Rico v. New Mexican, Inc., 56 N. Mex. 538, 246 P.2d 206; Pecyk v. Semoncheck, 61 Ohio Law Abs. 465; annotation, 86 A.L.R. 848.
In view of the total lack of evidence of special damages, the judgment must be reversed and final judgment rendered for the defendant.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.