{
  "id": 2763582,
  "name": "Josie PEREA, Plaintiff-Appellee, v. FIRST STATE BANK et al., Defendants-Appellants",
  "name_abbreviation": "Perea v. First State Bank",
  "decision_date": "1972-10-27",
  "docket_number": "No. 870",
  "first_page": "326",
  "last_page": "327",
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      "cite": "503 P.2d 150"
    }
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  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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      "category": "reporters:state_regional",
      "reporter": "P.",
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      "cite": "142 P. 146",
      "category": "reporters:state_regional",
      "reporter": "P.",
      "year": 1914,
      "opinion_index": 0
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    {
      "cite": "19 N.M. 156",
      "category": "reporters:state",
      "reporter": "N.M.",
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      "year": 1914,
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "60 N.M. 475",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
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      "weight": 2,
      "year": 1956,
      "opinion_index": 0,
      "case_paths": [
        "/nm/60/0475-01"
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    {
      "cite": "81 N.M. 608",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5360055
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      "weight": 2,
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nm/81/0608-01"
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  "analysis": {
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  "last_updated": "2023-07-14T17:55:55.751115+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WOOD, C. J., and HERNANDEZ, J., concur."
    ],
    "parties": [
      "Josie PEREA, Plaintiff-Appellee, v. FIRST STATE BANK et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nMrs. Perea recovered damages for libel per se. The cause was tried to the court without a jury. Defendants appeal.\nWe reverse.\nOil September 15, 1969, Mrs. Perea handed a check in the sum of $44.40 to Stella, the bank teller, to make a loan payment of $36.05. Stella gave her back $108.-35, consisting of five $20 bills, one $5.00 bill, three $1.00 bills, and change. By habit, Mrs. Perea put the money and receipt in her purse, said \u201cso long\u201d to a friend and left the bank. After the bank closed, the $100.00 error was discovered by Stella, about 2:45 p. m.\nITackett, an officer trainee of the bank, immediately prepared a xerox copy of the check on a sheet of paper. The check was made payable to Leo Perea, and it was signed by Frances Sanchez. Mrs. Perea\u2019s name does not appear on the check by endorsement or otherwise. Underneath the xerox copy of the check, Plackett wrote the following:\nAmount of Check 44.40 Check presented as Less payment received Cash returned Error in cash returned Amount returned that would be correct [Emphasis added] 144.40 36.05 108.35' 100.00 (This $100.00 will be added 8.35 to your note unless we receive $100.00 by 9-16-69 at 1200 Noon, [sic]\nThere is no evidence that Mrs. Perea presented the check as $144.40, although a glance at the figures written look like $144.40 because the dollar sign ($) is repeated in writing between the printed dollar sign ($) and the figures 44.40.\nThe trial court found in part:\nThat . . . Hackett, an employee of Defendant, . . . Bank, published or caused to be published a defamatory statement against the Plaintiff containing language imputing that Plaintiff had committed a crime. [Emphasis added] The court concluded:\nThat the actions of Defendant Bank, through its employees, in publishing a certain document were libel per se.\nMrs. Perea objected to the words on the sheet of paper, \u201cCheck presented as 144.-40.\u201d\nThe sole question is: Do the words \u201cCheck presented as 144.40,\u201d supra, which do not mention the name of plaintiff, Josie Perea, in and of itself, constitute \u201ca defamatory statement against the Plaintiff containing language imputing that Plaintiff had committed a crime\u201d ? The answer is \u201cno.\u201d\nThe words used above without resort to extrinsic facts would cast no imputation or innuendo that plaintiff, Josie Perea, committed a crime.\n\u201c[A] defamatory character will not be given to the words \u2018unless this is their plain and obvious import,\u2019 and that the language will \u2018receive an innocent interpretation where fairly susceptible to it.\u2019 \u201d Reed v. Melnick, 81 N.M. 608, 471 P.2d 178 (1970). We hold, as a matter of law, that the words \u201cCheck presented as 144.40\u201d is fairly susceptible to an innocent interpretation. They are consistent with an inadvertent or unintentional or innocent presentation as they are to an intentional or wrongful presentation. The words do not plainly and obviously impute the commission of a crime.\nA serious question also arises whether the words were published and intended to refer to Mrs. Perea. The only witness who knew the words referred to Mrs. Perea was Stella, the bank teller. A real conflict of authority exists whether a communication to a defendant\u2019s employee is a publication for which an employer is liable in an action for libel. 50 Am.Jur.2d, \u00a7 167. We do not decide that question.\nBut we emphasize that if the words used were published without mention of the plaintiff\u2019s name, plaintiff must prove by extraneous circumstances that persons knowing plaintiff can and do understand that the plaintiff is the person referred to. Young v. New Mexico Broadcasting Company, 60 N.M. 475, 292 P.2d 776 (1956); Colbert v. Journal Publishing Company, 19 N.M. 156, 142 P. 146 (1914); State v. Ogden, 20 N.M. 636, 151 P. 758 (1915); 50 Am.Jur.2d Libel & Slander, \u00a7 143.\nIn this case, plaintiff failed to present any extraneous circumstances that she was the person referred to.\nThere is no evidence to support the trial court\u2019s finding of fact that the words used imputed a crime. The conclusion of law is erroneous.\nThe trial court is instructed to enter judgment for the defendants.\nIt is so ordered.\nWOOD, C. J., and HERNANDEZ, J., concur.",
        "type": "majority",
        "author": "SUTIN, Judge."
      }
    ],
    "attorneys": [
      "John B. Tittmann, Keleher & McLeod, Albuquerque, for appellants.",
      "J. E. Casados, Robert H. McBride, Casados & McBride, Albuquerque, for appellee."
    ],
    "corrections": "",
    "head_matter": "503 P.2d 150\nJosie PEREA, Plaintiff-Appellee, v. FIRST STATE BANK et al., Defendants-Appellants.\nNo. 870.\nCourt of Appeals of New Mexico.\nOct. 27, 1972.\nJohn B. Tittmann, Keleher & McLeod, Albuquerque, for appellants.\nJ. E. Casados, Robert H. McBride, Casados & McBride, Albuquerque, for appellee."
  },
  "file_name": "0326-01",
  "first_page_order": 482,
  "last_page_order": 483
}