Appellant, Charles McGraw, sued appellee, Thomason, seeking damages for libel. His wife, Hazel McGraw, sued by identical complaint in another case which is here as 7 Div. 339, Ala., 93 So.2d 745. Demurrers to the complaints were sustained three different times, but were overruled as to Count Four, the result of the last amendment.
The cases were tried together, and when appellants rested, appellee also rested and asked for the general affirmative charge with hypothesis in each case. The court granted the motion and gave the requested written charge. The verdicts were for the defendant in compliance with the charge and each plaintiff appealed.
McGraw and Thomason owned adjoining lots on the same side of U. S. Highway No. 11 in St. Clair County. McGraw had a filling station on his lot. Thomason had a small shop on his lot nearest the McGraw line and his dwelling was a few feet from the shop. On October 11, 1950, Thomason erected a sign parallel to the highway, near the point where the McGraw-Thomason property line intersected the highway right-of-way on which was printed the following:
The sign remained there for several months; it was then taken down and attached to the front side of the shop building on Thomason's lot, just under the windows of the shop and still parallel to the highway. The sign was finally removed in July, 1952.
The tendencies of the evidence were that the sign was clearly visible from the highway and appellant's place of business, that after the erection of the signs, appellant's business took an immediate drop to approximately fifty per cent of the volume done previously, and after the removal of the signs, appellant's business showed an increase. There was evidence that some persons would drive into appellant's parking area, start to leave their car, see this and other signs and leave without entering appellant's place of business.
Two witnesses who lived in the neighborhood and one salesman testified, over objection, that to them the sign meant that Charles or Hazel McGraw had been trespassing on the property of appellee. It was undisputed that the McGraws had not trespassed on the property and they had no employees.
The only assignment of error complains of the trial court's action in giving the general affirmative charge with hypothesis for the defendant.
In actions for libel, the complaint must allege that the words were "falsely and maliciously" published. Harrison v. Burger, 212 Ala. 670, 103 So. 842; Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899; Tit. 7, § 223, Form 17, Code of 1940. Where the publication is libelous per se, the law presumes it to be false and, therefore, prompted by malice. Ripps v. Herrington,
It is our opinion that the trial court should have sustained the demurrer to Count Four on the specified ground that the count did not state a cause of action. The complaint, consisting only of Count Four, reads:
As already stated, the words on the sign are not libelous per se. They do not impute the commission of an indictable offense either past or presently. Our statute requires that a person must have been warned not to trespass within six months preceding the trespass before he can be prosecuted for such trespass. Tit. 14, § 426, Code 1940. The appellee had a right to warn appellant not to trespass on his property irrespective of whether appellant had previously done so.
The appellant evidently realized that the words were not libelous per se and to aid his pleading, he was forced to resort to innuendo. In Meadors v. Haralson, 226 Ala. 413, 147 So. 184, 185, we said:
It was for the court to decide whether the words on the sign were capable of the meaning ascribed to them by the innuendo. The words do not support the pleader's deduction and, therefore, Count Four did not state a cause of action. Penry v. Dozier, 161 Ala. 292, 50 So. 909, and Hendrix v. Mobile Register, 202 Ala. 616, 81 So. 558. For a general discussion of our cases on libel, see Tidmore v. Mills, 33 Ala.App. 243, 32 So.2d 769; certiorari denied 249 Ala. 648, 32 So.2d 782, and Albert Miller & Co. v. Corte, 5 Cir., 107 F.2d 432.
The definitions of libel, as found in the cases, vary somewhat in phraseology, and are more or less comprehensive, as may be called for by the particular charge involved in the case. Generally, any false and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel, which charges an offense punishable by indictment, or which tends to bring an individual into public hatred, contempt, or ridicule, or charges an act odious and disgraceful in society. This general definition may be said to include whatever tends to injure the character of an individual, blacken his reputation, or imputes fraud, dishonesty, or other moral turpitude, or reflects shame, or tends to put him without the pale of social intercourse. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649; Marion v. Davis, 217 Ala. 16, 114 So. 357, 55 A.L.R. 171, and Iron Age Publishing Co. v. Crudup, 85 Ala. 519, 5 So. 332.
In determining their actionable character, the printed words are to be taken in their natural meaning, and according to the sense in which they appear to have been used and the idea they are adapted to convey to those who read them. A forced construction is not to be put upon them in order to relieve the defendant from liability, nor are they to be subjected to the critical analysis of a trained legal mind, but must be construed and determined by the natural and probable effect on the mind of the average lay reader. White v. Birmingham Post Co., supra.
Applying these principles to the alleged libelous words, we can find nothing in them which tends to bring appellant within the general definition quoted, supra. While the words on the sign are not exactly a neighborly gesture nor calculated to win friends, they are not libelous and the attempted innuendo did not make them so. It follows that the appellant was not entitled to recover.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.