Motions in arrest of judgment are not favored.
In considering a motion in arrest, the plaintiff will be given
the benefit of every implication that can be drawn from the
pleading, liberally construed, and even if the allegations are
defectively set forth or improperly arranged, if they show facts
constituting a good cause of action, the motion will be denied.
Where the defendant in a suit for libel is put on notice of
extrinsic facts surrounding the publication, and does not demur,
but joins issue and goes to trial, a verdict against him cures the
defects in the complaint and a motion to arrest should not be
granted.
The strict rules announced in earlier decisions in this respect
have been modified by modern and more liberal rules of
pleading.
Where plaintiff in error in this Court succeeded in the trial
court and was reversed in the intermediate appellate court, this
Court is not limited to a consideration of the points presented,
but must enter the judgment which should have been rendered by the
court below on the record before it.
Although this Court reverses the order to arrest the judgment,
it affirms the ruling of the intermediate appellate court that
there should be a new trial on account of erroneous instructions on
material matters.
Where the words are not libelous
per se and can only be
construed as such in the light of extrinsic facts, it is for the
jury not only to determine whether the extrinsic facts exist, but
also whether the words have the defamatory meaning attributed to
them.
36 App.D.C. 493 reversed.
The plaintiff, Baker, United States district attorney for the
District of Columbia, sued the defendant, Warner, for libel.
Briefly stated, the complaint charges that:
The Washington Jockey Club owned a race track in
Page 231 U. S. 589
the District where races were run and bets were made, and in
January, 1908, the plaintiff, as district attorney, had obtained
from the grand jury an indictment charging one Walters with betting
at this race track, contrary to the statute against gaming in the
District. A demurrer was filed, which was sustained on March 11,
1908, the court holding that the laying of bets on horse races at
this track was not a violation of the Act of Congress, which, as
appears by reference to the statute (March 3, 1901, § 869, 31 Stat.
p. 1331, c. 854), only prohibited such betting and bookmaking
within one mile of the boundaries of the Cities of Washington and
Georgetown. The plaintiff immediately took an appeal from this
judgment in order that the Court of Appeals might determine whether
such betting at such place was a violation of the gaming law of
force in the District.
Shortly after the appeal, the Spring Meet of the Jockey Club
began, being advertised to continue until April 14th. On the
opening days of the Meet, there were bookmaking and betting, but
the complainant alleges that the plaintiff,
"conforming himself, as it was his duty to do, to the law as
judicially construed by the Supreme Court of the District, did not
issue warrants for the arrest of or present to the grand jury any
persons for betting on the horse races."
It is further alleged that, at this time, Warner was a candidate
against Pearre for the nomination for Congress from Maryland, and,
on March 28th, Warner composed and published, of and concerning the
plaintiff and of and concerning the office of the plaintiff, in a
Washington newspaper, a certain false and defamatory libel. The
article need not be set out at length, but the communication, after
characterizing a speech by his opponent as undignified, proceeded
to say that it was not wanting in dignity so much as for a judge of
the District
"who, with the United States District Attorney (meaning the
Page 231 U. S. 590
plaintiff), went to Rockville (meaning the Town of Rockville,
County of Montgomery, State of Maryland) last Saturday (meaning
Saturday, the 21st day of March A.D.1908) to attend a conference of
Mr. Warner's (meaning defendant's) enemies, and determine what
ammunition was needed to defeat him."
"The question now is, where does the money come from in the
contest against Mr. Warner? (meaning the defendant)."
"How about the race track?"
"Lawyer"
"meaning thereby . . . that the said plaintiff entered into a
conference with others for the purpose of determining what funds
were necessary, and how same should be raised, to be used in the
campaign in behalf of Pearre, and meaning . . . that the plaintiff
was and is corrupt in not presenting to the grand jury and
prosecuting before the courts of the District persons laying bets
upon the contests at the race track, in consideration of
contributions of money in the contest against the defendant from
some company or person interested in the race track or the contests
carried on thereon."
The defendant filed a general denial, and, after a trial, there
was a verdict in favor of the plaintiff. Motions for a new trial
and in arrest of judgment were overruled and the case taken to the
Court of Appeals, which held not only that reversible error had
been committed, but that the judgment should have been arrested. In
No. 41, the case is here on a writ to review that ruling. To avoid
any question as to the finality of that judgment of the Court of
Appeals, plaintiff sued out another writ of error (No. 42) after
the judgment had been arrested in the trial court.
Page 231 U. S. 591
MR. JUSTICE LAMAR, after making the foregoing statement of
facts, delivered the opinion of the Court.
The plaintiff, who was United States district attorney for the
District of Columbia, sued the defendant in an action for libel,
and recovered a verdict for $10,000. The Court of Appeals (36
App.D.C. 493) held that the judgment should have been arrested for
the reason that the publication was not libelous
per se,
and was not shown to be defamatory by any averment of fact in the
inducement or in the colloquium.
The publication was not libelous
per se. The meaning of
the article and person to whom it referred was so ambiguous that,
in order to constitute a cause of action, it was necessary to set
out extrinsic facts, which, when coupled with the words, would show
that the writer charged the plaintiff with corruption in office.
Accordingly, the plaintiff, in the inducement, averred that he was
district attorney, charged with the duty of prosecuting violators
of the law against gaming, and had procured an indictment against
one for betting at the Washington Jockey Club, which indictment had
been quashed, and, pending the appeal, and conforming to the ruling
of the court, he had instituted no other prosecutions: that, under
these circumstances, the defendant had published of and concerning
the plaintiff, the article which is set out in the complaint.
There were general allegations that the article was written
concerning the plaintiff in his office as district attorney,
together with general statements in the innuendo that the defendant
meant to charge him with corruption in office. There was, however,
no distinct averment as to the meaning of those particular phrases
in the publication
Page 231 U. S. 592
on which the cause of action was really based. The Court of
Appeals thereupon sustained the defendant's contention that the
complaint was defective because of the failure specifically to
allege what, as a fact, the words meant, and to whom they referred.
It further held that the absence of such specific averments was not
supplied by the general statement in the innuendo that the
defendant meant to charge the plaintiff with a crime. This was
based on the rule that it is not the office of the innuendo to set
out facts, but rather to explain what is ambiguous, or to state a
conclusion which, to be effective, must be supported by averments,
definitions, references, or other facts alleged in traversable form
in inducement and colloquium. It is, however, unnecessary to
discuss the sufficiency of the complaint, which, even if defective,
was amendable. The defendant did not demur, but joined issue, the
case was tried by a jury, a verdict for the plaintiff was rendered,
judgment was entered, and the defendant then moved in arrest.
Such motions are not favored. In considering them, courts
liberally construe the pleadings, giving the plaintiff the benefit
of every implication that can be drawn therefrom in his favor.
Sentences and paragraphs may be transposed. The allegations in one
part of the complaint may be aided by those in another, and if,
taken together, they show the existence of facts constituting a
good cause of action, defectively set forth or improperly arranged,
the motion in arrest will be denied.
In the present case, the defendant was put on notice of the
extrinsic facts surrounding the publication. The statements in the
innuendo, even if misplaced, may, after verdict, be treated as
substantive allegations of fact, given by transposition their
proper position in inducement or colloquium. The verdict cured the
defects, if any, in the complaint, and made it improper to arrest
the judgment.
Stanley v. Brit, 8 Tenn. 222;
McClaughry
Page 231 U. S. 593
v. Wetmore, 6 Johns. 82;
Brittain v. Allen, 13
N.C. 124;
Tuttle v. Bishop, 30 Conn. 80;
Nestle v. Van
Slyck, 2 Hill 282. In answer to these decisions, the defendant
cites
Ryan v. Madden, 12 Vt. 55, and other cases to
support his contention that the motion in arrest should have been
granted. But those decisions announce what, in
Bloss v.
Tobey, 2 Pick. 330, was admitted to be a hard and technical
rule -- one which, we think, has been modified by modern and more
liberal rules of pleading and practice in the federal courts and in
those of most of the states.
The plaintiff, Baker, had a judgment in the trial court. The
defendant, Warner, took the case to the Court of Appeals on various
grounds, most of which were sustained. The plaintiff then brought
the case here, assigning error on some of those rulings, but not on
others. But we are not limited to a consideration of the points
presented by the plaintiff, but, this being a writ of error from an
intermediate appellate tribunal, must enter the judgment which
should have been rendered by the court below on the record then
before it.
While we reverse the order to arrest the judgment, we affirm the
ruling of the Court of Appeals that there was an erroneous
instruction on a matter material to the case and harmful to the
defendant. The trial judge, summarizing the facts, charged that, if
the jury found from the evidence that plaintiff was district
attorney; that in the District there was a race track where races
were run and bets were made, which some claimed could have been
prevented by prosecutions instituted by the plaintiff, and that he
did not, in fact prosecute such persons; if Warner was a candidate
for Congress, and the plaintiff supported Pearre, his opponent, and
the defendant, Warner, wrote and procured the publication of the
article set out in the complaint,
"then you are instructed, as matter of law, that the said
article is libelous and your
Page 231 U. S. 594
verdict should be for the plaintiff, and the only question for
your determination is what amount of damages the plaintiff is
entitled to recover by reason of the publication of said
article."
This was error, since it was for the jury, and not for the
court, to determine the meaning of ambiguous language in the
published article. Where words are libelous
per se, the
judge can so instruct the jury, leaving to them only the
determination of the amount of damages. Where the words are not
libelous
per se, and, in the light of the extrinsic facts
averred, could not possibly be construed to have a defamatory
meaning, the judge can dismiss the declaration on demurrer, or,
during the trial, may withdraw the case from the jury. But there is
a middle ground where, though the words are not libelous
per
se, yet, in the light of the extrinsic facts averred, they are
susceptible of being construed as having a defamatory meaning.
Whether they have such import is a question of fact. In that class
of cases, the jury must not only determine the existence of the
extrinsic circumstances, which it is alleged bring to light the
concealed meaning, but they must also determine whether those
facts, when coupled with the words, make the publication libelous.
Van Vechten v. Hopkins, 5 Johns. 219. The meaning of the
words was in dispute, and as that issue of fact was not submitted
to the triers of fact, a new trial must be ordered.
This conclusion makes it unnecessary to consider the other
questions in the case.
The judgments of the Court of Appeals are reversed, and the
cases are remanded to that court with directions to reverse the
judgments of the Supreme Court of the District of Columbia, and to
remand the case to that court, with directions to grant a new
trial, and for further proceedings in conformity with this
opinion.
