
    EXAGGERATION WHEN INTENDED TO AMUSE IS NOT LIBELOUS.
    Common Pleas Court of Clinton County.
    Fred Tappmeyer v. Journal-Republican Co.
    
    Decided, December, 1919.
    
      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,” ór 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 Hulbarcl 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 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:
    
      
       Affirmed by the Court of Appeals for “the reasons stated in the opinion of the trial court.”
    
   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 ease 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.

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. Trash, 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. entire nine miles of its length. Bnt 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 com,es in.

“Mr. Tappmeyer owns a farm, a good farm, too, between Blanehester 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 Avhen 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 th§. 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 “surweyer” 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 oi 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.
“The difficult problem will be solved just as soon as some 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 language— it 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.

Is there any charge in the language, that Ered Tappmeyer is comparable at all with Carranza or with Villa? Is there anything in the paragraph that any person could think lor a moment that the writer is comparing the character of Villa, and the character of Carranza with Fred Tappmeyer’s character? It seems to me the meaning of that much of it is this: that if Villa is dangerous, if Carranza is a man to be watched, Fred Tappmeyer has them both beat. That is only preliminary. It goes on to say:

“First it should be told that the state highway department is rebuilding the state road between Martinsville and Manchester. This well known and busy pike is one of the straightest roads in Clinton county, having but very few symptoms of curves in that entire nine miles of its length. But mere straightness did not suffice when the state department drew up the plans for its improvement.”

This is explanatory, is leading up to the place where the trouble came in:

“It was necessary to move the 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 Fred Tappmeyer comes in.”

The idea of that whole article is to explain what the difficulty is, and is there a single, solitary hint that Mr. Tappmeyer is to be compared with Villa in character, or Carranza in character, any further than to say that perhaps if Villa is dangerous, he, Tappmeyer, might be dangerous, or if Carranza is a man to be watched, Tappmeyer is likewise to be watched? Now is it libelous to say that of a man?

“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 a large tract of land that formerly belonged to Eberle Smith and the Deweys.”

That is only descriptive of where his farm is located.

“Mr. Tappmeyer, a hyphenated citizen.”

Now, I think that has been emphasized in this ease more than any other one expression in this whole article. That is not the whole sentence, and we have to see what the balance of it is to find out in what sense the writer had referred to Mr. Tappmeyer as a “hyphenated citizen.”

“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. ’ ’

This is parenthetical down that far. Next you take up the idea again:

“Learned early what h,e 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 further over on his land, his mind was made up to stay.”

Now, in what sense did the writer use the word “hyphenated citizen!” In the sense that he was a traitor’ to his country! Could anybody, by any sort of imagination say that was used by way of indicating that Tappmeyer was a traitor to his country! The Unabridged Dictionary says that a “hyphenated citizen” is used in two senses, one to designate a person of foreign birth, or extraction, such as “German-American,” “Irish-American,” “Anglo-American;” another in the sense of opprobrium, and when used in the sense of opprobrium designates one who divides his allegiance.

Now, is there anything in the paragraph to show that this was used in an opprobrious sense, or simply to designate that he is of German extraction, and that he has that well-known German stubborness about him of one who, when he sets his head, you can not turn. That is emphasized further on in the second paragraph below, where it refers to his wife, and it starts out, “Mrs. Tappmeyer, also of der Yaderland,” the connection between the two is that a “hyphenated citizen” is used synonomouslv with “of de Yaderland” and it means they both are from German, or of German extraction, and hence that sentence:

“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 did not want his fences moved back, or the telephone poles reset further over on his land, his mind was made up to stay. ’ ’

It is perfectly apparent to an unbiased mind that the writer merely wanted to designate Tappmeyer as a man of German extraction, and that he was stubborn, and when he set his head, you could not turn him. When he speaks of Mrs. Tappmeyer “also from der Vaderland” it is to designate her as of German extraction. The dietionery says there are two meanings to be given to the word “hvphenaled citizen” — it may be used in a sense of compliment, or an opprobrious sense. The testimony of the witness, Welborn, yesterday, was in the nature of the opprobrious sense, and he indicated that it could not be used in any other way than as an opprobrium. If the term could be used in but one sense, the court would be bound to take his testimony as the definition notwithstanding that I think it is the most imaginary definition of the term that I ever heard. Where a word, or phrase, is used in more than one sense, it is for the court to determine from the whole article what meaning was intended. The court thinks it is manifest on the fact of the paper here that it was used in that sense of designating his nationality, or extraction. The mere fact that you say it was used in another sense, when it manifestly was not, does not make it so. If the very article itself contradicts the allegations of the petition, or the idea of the witness, the court is not bound to accept the definition of the witness as conclusive.

It seems to me that nobody could in any way say that the language that I have just read which refers to Mr. Tappmeyer as a “hyphenated citizen,” connected with the other part of the article in which it is stated Mrs. Tappmeyer is “also from der Vaderland,” was intended to do anything more than describe him as a German, or one of German extraction.

The further reading is:

■ “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 spacle, a plow, a stake, or any doggoned thing that looked like it meant building operations in his soil, would went further and exhibited the field piece with which he proposed to defend his property against invasion.”

Then comes the statement about Mrs. Tappmeyer, 1 ‘ also from der Vaderland,” and certain phraseology there which has no further application to this case, and on down to:

“Speaking of preparedness, Mr. Tappmeyer has a genuine case of it. lias 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 of repentance for having decided to litter up his premises with corpses if his demands are not complied with.”

Now, that is very much exaggerated. Is there anything in this article from beginning to end that would ]ead any reasonable, unbiased mind to believe that the paper meant to convey, or could anyone understand it meant to convey, that he meant to kill a lot of people and “litter up his premises with corpses?” There is a well known line of writing-by which a small and sometimes imaginary fact is grossly exaggerated in order to make it funny, but it is never intended that anybody would believe it, and it never is believed. The court can not overlook these facts; it has to put a reasonable construction on this language. Is there anything from top to bottom that is meant to convey the idea that Tappmeyer literally was going to “litter up his premises with corpses ? ” It goes on further:

“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. The difficult problem will be solved just as soon as some 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.”

Now, can it be said for a moment that any person in his right mind took that seriously ? That is one of those exaggerations or enlargements of really small and imaginary facts in order to make it readable and amusing, that is well recognizable in daily papers. The article goes on:

“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. ’ ’

It is all in the same vein. There is absolutely nothing from beginning to end where any reasonable person, it seems to me, could say that the writer of this meant anything more than that the public authorities were asserting the right to move -Tappmeyer’s fences back, and that he was standing on his rights to the point, that if they attempted to move them back, he would use a gun. Now, is it a libel to say that? Is it an indictable offense? Does it hold him up to ridicule, or to scorn because he stands for his own rights? lie said himself on the witness stand, he had threatened to use a gun, but that is neither here or there. It is a question of what this article means. Is there anything of the kind in it? It is just what I have said, Mr. Tappmeyer was insisting that his line came to a certain point and that his fences should not be moved, and if anybody attempted to move them (and we must read into it that he menus unlawfully to move them) he would repel the invasion with a gun.

Is there anything in the article signifying anything more than that he intends to stand on his rights to the point of using a gun, if necessary, if somebody attempts an unlawful entrance on his premises? The utmost offense, if any, it seems to me, that the language would convey would be a menacing threat. The text-writers (and I think correctly) have divided that statute into three parts: assault and battery, assault, and the crime of making menacing threats. There might be a charge of masking menacing threats under dektain (circumstances that would be a libel, but is it a libel, is it an indictable offense that would involve moral turpitude if a man makes the threat that “if you are going to enter my premises, unlawfully, I am going to repel you even to the extent of using a gun ? ’ ’ Such an offense, if an offense at all, does not involve moral turpitude. If he would go out some place and make a menacing threat that he was going to kill somebody, without any circumstances that warranted it, it might involve moral turpitude. To be libelous it must be an indictable offense that involves moral turpitude. I don’t see anything that holds him up to ridicule. Now, does this article hold him up to ridicule ? I think it was well said by Mr. Thorpe yesterday, when he mentioned a matter that has impressed the court, that if there is anybody held up to ridicule and any fun made of anybody in this article it was of the officers on the job, who allowed themselves to be bluffed by Tappmeyer; it seems that the whole idea was to make fun of the officials of the state of Ohio who let one man bluff them out. It rather lionize Mr. Tappmeyer and makes a hero of him by the idea that he had bluffed the whole crowd. It does not tend to disgrace him a particle. I can not find anything through this whole article that it seems to me when you consider it fairly, in the way it would strike a disinterested citizen, not in the light that it strikes a citizen who thinks he is aggrieved, but in the light it would strike a reasonable citizen, that indicates anything more than what I have defined. We had an experience in trying to get a jury that shows this fact. Not one of the men who had read this article could tell what it was about. It had made no impression on them whatever. That is the way it would strike anybody, that there was nothing in it from beginning to end in any serious way charging Mr. Tappmeyer with doing anything more than taking a stand that his line went to a certain point and that if these men attempted to go beyond that point, unlawfully (and we must say unlawfully) he was going to repel that invasion even to the point of using a gun.

There is nothing in the argument that causes me to change my notion that this is not a libelous article per se, when considered fairly, when considered in the light it would strike an ordinary citizen. There is no special damage alleged; no malice has been proved.

It seems there is nothing for the court to do but to terminate this case by directing a verdict. If 1 am wrong, I will assist the gentlemen in every way possible to have it corrected.  