Libel-Article Complained of Must be Considered as a Whole-Segregated Words and Phrases Not Determinative-Gross Exaggeration Not Libelous Where Not Intended to be Accepted Literally. 1. A newspaper article claimed to be libelous should be considered as a whole in determining its import, character, and the meaning readers are likely to attach to it, and not segregated parts thereof. 2. There is a well known type of literature wherein gross exaggeration is resorted to in order to amuse and attract, and in such articles words that would be libelous per se under ordinary conditions are not so libelous, if the article taken as a whole is such as no one would be expected to accept it literally.

3. In such an article it is not libelous per se, nor does it impute treason, to refer to one as a "hyphenated citizen," or "also from der Vaterland," when the import of the article clearly shows that the words used were intended to describe the person to whom they were applied as one from Germany, or of German descent.

4. It is not libelous, per se, to publish of another that "he has not broken down and wept tears of repentance for having decided to litter up his premises with corpses," or that some one would serve "as a target for bullet holes from the owner's musket," when the import of the article shows it to have been so gross an exaggeration as to prevent its being believed by any one.

Miller & Foster and Hubbard Schwartz, attorneys for plaintiff. Smith, Rogers & Smith, Doan & Cartwright and G. P. Thorpe, attorneys for defendant.

Heard on motion for directed verdict.

Upon the trial of this cause no proof was offered of malice and no special damages were claimed. At the conclusion of

* Affirmed by the Court of Appeals for "the reasons stated in the opinion of the trial court."

Tappmeyer v. Journal-Republican.

[Vol. 22 (N.S.)

plaintiff's case, the defendant moved for a directed verdict for the defendant. It was conceded by counsel on both sides that unless the article complained of was libelous per se, the motion would have to be sustained. After exhaustive argument the court delivered the following decision on the points involved:

CLEVENGER, J. (Orally).

The sole question before the court is whether the article complained of is libelous per se. Under the rule in Ohio this is a question for the court. In order to determine such a question the article must be considered as a whole. We can not pick out segregated words or phrases that might be libelous, that reflect upon the plaintiff in the article, and say that they are libelous, but they must be considered in connection with the whole article, and the purpose of both as implied from the language used.

Referring to Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118, referred to by counsel, the court does not say in that case that it would not be libelous under any and all circumstances to publish that a woman had hysterics, but Judge Spear comments on the fact that that one phrase was injurious out of the whole article, while the same article taken together showed that there was no thought or idea on the part of the writer to attack Miss Nethersole because she had hysterics, but the whole thought and idea of the article was to discuss the stage from the standpoint of the criticism of some minister, who had stated his ideas of what the stage had contributed to society, and in the article referred to certain plays Miss Nethersole was then presenting in Cleveland, and mentioned a particular play and said that in London this particular one had been hissed to such an extent that Miss Nethersole had hysterics. Now, the court held that that was not libelous because the manifest intention of the writer was not to attack her at all, that he could not put any such construction upon it, but the court did not say that if he had attacked her and used the word "hysterics" under certain circumstances, that it would not have been libelous, but that you have to take the whole article and see what the writer intended by it, what he was aiming at, to determine whether or not that a particular portion of that article is libelous.

1920.]

Tappmeyer v. Journal-Republican.

There is no dispute, I think, between counsel, and there is no uncertainty in the court's mind, about what the law is in the case. I think the case of Watson v. Trask, 6 Ohio 531, lays down the law, or what is the law substantially all over the country. There is a difference between slander and libel, there is no question about that. More harm can attach to a libelous article always, than to slanderous words, because of the opportunity of disseminating the injurious matter. The rule is laid down that anything that charges a person with having committed an indictable offense, involving moral turpitude, or holds him up to ridicule, or that tends to degrade him, is libelous per se, and the question for the court is to determine whether the article upon which the petition is predicated falls within that rule. The Supreme Court of the state of Ohio has held that whether or not it is libelous per se is a matter for the court to determine.

The plaintiff has rested his case. There is no claim at all of special damages in the petition. There has been no attempt to prove malice; whatever proof there was on the subject would rebut the idea of malice, because the plaintiff testified that in his conversation with the president of the defendant company, he expressly disavowed any malice, or intention to injure the plaintiff, and stated that the article was designed simply as a funny article, so that instead of proving any malice the direct opposite was brought out by the plaintiff's own testimony, so the direct question comes to the court to determine whether or not this article, or any part of it, is libelous per se, and thereby, through the operation of the law, malice is presumed without proof of it. The whole of the article complained of is as follows:

"KEEP OFF THE GRASS

is order farmer has issued to builders of state highway. "Villa dangerous?

"Carranza a man to be watched?

"Bah, Fred Tappmeyer has 'em both beat an entire city block.”

First it should be told that the state highway department is rebuilding the "state road" between Martinsville and Blanchester. This well known and busy pike is one of the straightest roads in Clinton county, having but very few symptoms of curves in that

Tappmeyer v. Journal-Republican.

[Vol. 22 (N.S.)

entire nine miles of its length. But mere straightness did not suffice when the state department drew up the plans for its improvement. It was necessary to move fences back on both sides of the road several feet to make the thoroughfare comply with the state's specifications. So the order went forth to move fences, telephone poles, ditches, etc., and there is where Mr. Tappmeyer comes in.

"Mr. Tappmeyer owns a farm, a good farm, too, between Blanchester and Midland City, on the south side of the pike It is huddled in between the large tract of land that formerly belonged to Eberle Smith, and the land owned by the Deweys. Mr. Tappmeyer, a hyphenated citizen, who got his start on a hill farm across in Kentucky from Cincinnati, and for years sold vegetables and truck in the city, learned early to know what he wants and when he wants it, and when he made up his mind that he didn't want his fences moved back or the telephone poles reset farther over on his land, his mind was made up to stay.

"Next in order to make himself and his position clear, he issued orders to those engaged in the moving operations, that the first man that set a spade, a plow, a stake, or any doggoned thing that looked like it meant building operations in his soil, would be promptly shot, so this paper is told. And Mr. Tappmeyer went further and exhibited the field piece with which he proposed to defend his property against invasion.

"Mrs. Tappmeyer, also from der Vaterland, is taking an active part in the campaign of defense, and it is she who has had the most words with the "surweyor, as she calls Mr. Collett. The "surweyor" has had his troubles but also his amusement with the problem. One of the things he tells is that the heroine of the story was positive that they were right in the location of a certain stone marker at a corner of their land, and offered as a proof that they had stepped the distance and knew all about it. Without arguing the "surwever" ran off the line and to his astonishment found the point not six inches away from the point the Tappmeyers had established by stepping. Speaking of preparedness, Mr. Tappmeyer has a genuine case of it! Has anybody set a shovel, plow, stake et cetera into Mr. Tappmeyer's land? Not yet.

"He is being labored with by the powers that be, but up to the present writing he has not broken down and wept tears

1920.]

Tappmeyer v. Journal-Republican.

of repentance for having decided to litter up his premises with corpses if his demands are not complied with. There is something about the thought of becoming a corpse that is more or less distasteful to the average pike-builder, and somehow none of them feel inclined to spade up any ground along Mr. Tappmeyer's line, though the preliminary work has been done all along the pike on both sides of the trouble zone.

some

"The difficult problem will be solved just as soon as workman feels ready and willing to lay himself on his country's altar and run the risk of having his remains shipped home by parcel post, by boldly walking over on Mr. Tappmeyer's land and proceeding to punch it full of post holes, at the same time serving as a target for bullet-holes from the land owner's musket.

"In the meantime work in front of the Tappmeyer land is at a standstill. while the county commissioners have notified the state highway commissioner that as his engineer started the trouble by making the survey as he did, it is up to him to get an adjustment."

Now, let's take this article-not segregated parts of it, but the whole thing-and see what the idea is. It is headed" Keep off the grass,' is order farmer has issued to builders of state highway."

The headlines were designed to give the reader an idea of what the contents of the article are. That would indicate that somebody, somewhere had told the builders of the state highway to keep off the grass, or the ground where the grass was growing. It starts out, the reading matter starts out, "Villa dangerous? Carranza a man to be watched "The interrogation point is used in both of these instances, which taken in connection with the other charge, reads, "Bah, Fred Tappmeyer has 'em both beat an entire city block." This paragraph is alleged to be one of the most libelous of the whole article.

Now, really, when you get at an analysis of that languageit means this, with those interrogation points and that expression following, that if Villa is dangerous, that if Carranza is a man to be watched. Fred Tappmeyer has them both beat a city block.