53 So. 759 | Ala. | 1910
Lead Opinion
This action is for libel. The complaint at one time contained a great number of counts. All except counts 7 and 8 were eliminated, of which appellant cannot complain, because of no possible injury to it. The remaining counts, 7 and 8, were both in Code form, and declared on the same publication. Count 7 declared on only a part of the publication, while count 8 set out the publication in extenso. The alleged publication contained, among other matters, the following, as headlines:
“Will File Grave Charges Against a City Official.
“Street Superintendent Accused of Misconduct.
“Jones Sold City’s Gravel.”
Then follows an editorial or synopsis of Brown’s charges, a part of which is as follows: “Briefly stated, Mr. Brown charges that Mr. Jones sold-the city’s gravel to the Country Club, had the gravel loaded into the city’s wagons by city convicts and hauled to the clubhouse by city teams, where it was laid by negro employees of the city, thereby competing with him, Mr. Brown, as a grading contractor, and that Mr. Jones collected the money impliedly for his own use.” Then followed the statement by or interview with Mr. Brown, which is too long to be here set out. Each of these counts declared upon the above, among other things indicated, as a libelous publication in the defendant’s daily newspaper of the 20th day of March, 1905, which publication is alleged and shown to have a large circulation in the city and county of Montgomery, in which city plaintiff lived, and of which he was an officer; all of which was alleged, and by the jury found, to be, to plaintiff’s great damage in the sum of $5,000. This publication, if false as it is alleged to be, was, under
This court, speaking through Stone, C. J.; in the case of Gaither v. Advertiser Co., 102 Ala. 461, 14 South. 789, quoted from a New York case as follows: “Words are actionable which directly tend to the prejudice of any one in his office, profession, trade, or business, in any lawful employment by which he may gain a livelihood” — and then added: “The above is the rule when one is falsely charged verbally with being incapacitated for the duties of an office, trade, or business. For a much stronger reason is an action maintainable when the charge is made public in a written or printed publication. The reason is that printed or written slander is uttered with greater deliberation, is more widely circulated, and is placed in an enduring form.” There can be ho doubt that the natural and unaided import of the publication complained of in this case was to assail the integrity of, and to imply corruption on the part of, plaintiff, both as a public officer and ah an individual. We can see no escape from this conclusion. The language used in this case is more severe and objectionable than were the words employed in many of the cases above cited, which were held to be actionable per se. The language held to be such in Gaither’s Case, above,
Each count Avas subsequently amended by allegations as to a demand by plaintiff upon defendant for a retraction of the publication, in view of the recent statute of this state upon the subject of retractions of libel. Each count being in Code form, and in compliance Avith the statute, and the alleged libel being such per se, it follows that each count stated a good cause of action and was not demurrable; and that no allegation was necessary as to special damages. The cause was tried upon the general issue alone, as to those two counts (7 and 8). No special.pleas of justification — that is, alleging the truth of the matter published or that the publication was a privileged one — appear to have been offered or filed. The general issue in such case only puts in issue the fact of publication of the matter as alleged. The proof conclusively showed that the article was published as alleged — in fact, this was not denied, except formally by this plea, but was on the trial admitted and conceded by defendant. This being true, the plaintiff was of course entitled to the general affirmative charge as for nominal damages. Therefore, the only question for the determination of the jury, under the issues and the proof, was the amount of damages.
While evidence tending to prove the truth of the matter published, and that the publication was privileged, was admissible under the general issue alone upon which it was tried, such evidence was only admissible for the purpose of mitigating the damages, and not in
The confessed publication in this case undoubtedly imputed to plaintiff want of official integrity; its natural tendency was to injure his reputation and to expose him to public contempt, and it was therefore libelous per se. In such cases the law presumes general damages as a natural and'probable consequence. — Authorities supra; and see, also, Upton v. Hume, 24 Or. 420, 33 Pac. 810, 21 L. R. A. 493, 41 Am. St. Rep. 863. The authorities appear to be uniform to the conclusion that, when a false and nonprivileged publication, which is per se libelous, is established, injury is presumed to ensue therefrom as the direct product of the publication, and affords ground for the allowance of at least nominal damages. So the only assignments other than the demurrers to the complaint, which have been herein disposed of, are those assignments which go to the measure or quantity of damages recovered. Whatever error, if any, which may have intervened as to other matters, was necessarily without possible injury or detriment to the defendant, appellant here. As to the measure of such damages, there is .no legal standard. The amount thereof, under proper instructions from the court, is usually referred to the sound discretion of the jury. If the publication is actionable per se, and is
In' actions of this kind these and other questions are peculiarly questions for the jury, which might he for the court in other cases. This results from the constitutional and statutory provisions of the various states, as to such prosecutions and civil actions. These provisions of law, whether civil or criminal, are the outgrowth of the famous “Pox Lihel Act,” adopted by the English Parliament in 1792, officially published in 32 Geo. III, c. 60. This act, as is well known, was rendered possible by the burning eloquence of Lord Erskine. Lord Campbell spoke of it as follows: “I have said, and I still think that this great constitutional triumph is mainly to be ascribed to Lord Campden who has been fighting in the cause for half a century, and uttered his last words in the House of Lords in its support; but had he not received the invaluable assistance of Erskine as counsel for the Dean of St. Asaph, the Star Chamber might have been reestablished in this country.” Modified provisions of this famous act have found their way into many if not all of the Constitutions and statutes of the states. They appear in our Constitution as section 12 of the Bill of Rights, and in the Code of 1907 as section 3745 thereof; and read as follows:
“Sec. 12 (Bill of Rights). That in all prosecutions for libel or for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel, the jury shall have*207 the right to determine the law and the facts under the direction of the court.”
“3745 (Code of 1907). * * * In civil actions for the publication of papers, investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, . the truth thereof may he given in evidence.”
The Supreme Court of Montana spoke and quoted of these provisions ás folloAvs : “* * * There exists great contrariety of opinion as to the extent of pohver conferred upon the jury, independently of the court, to determine the law and the facts and judge of the whole case. A review of the cases relating to this subject can serve no useful purpose here, as the questions whether the jury is required to accept the instructions of the court as conclusive, and what poAver resides in this court to review a case where the instructions and other procedure of the trial court are free from error, are questions not involved in this case. Whatever view is adopted, the courts áre almost, if not quite, a unit upon the proposition that it is the duty of the judge to decide upon the sufficiency of the pleadings, the admissibility of testimony, instruct the jury, and discharge the other functions devolving upon him down to the final submission of the cause to the jury, as in other cases. In Missouri, where the doctrine prevails that the jury may disregard the instructions, it is said in State v. Armstrong, 106 Mo. 395 (16 S. W. 604, 13 L. R. A. 419), 27 Am. St. Rep. 361, that: ‘While the judge may assist and inform them what the law is, and it is his duty to do so, still they are, by virtue of organic law, the final judges in a prosecution for criminal libel.’ In Drake v. State, 53 N. J. Law, 23, 20 Atl. 747, Justice Dixon, construing a similar constitutional provision, says: ‘It Avas not intended to affect the duty of the court to de
The demand for retraction in this case was in all respects a compliance with the statute, and, as before stated, the complaint was amended by adding appropriate allegations as to it. No possible injury was done defendant in respect to any of the rulings in regard thereto.
Charge 4 was improper. Malice might have been implied in this case, though there was. no “conscious” disregard of the truth or falsity of the publication. This was not a.t all necessary. It is the duty of a' party publishing such a statement as the one in question to know of its truth or falsity before publishing it; and malice may be inferred from the mere failure to discover, before publishing.
Charge 7 was bad for the same reason. “Actual malice” in the publication was not necessary to a recovery in this case, and, further, because the plaintiff was, as has been before stated, entitled to a verdict for at least nominal damages under the evidence.
Charge 8 was properly refused, as tending to mislead the jury. While the jury had the undoubted right to
Charge 9 was bad "for the same reasons assigned to charges 4 and 7, above.
Charge 12 was bad as tending to mislead and confuse the jury, and improperly precluded the recovery of actual damages, which were certainly recoverable under all the hypotheses stated
While the damages are large in this case we cannot say that they were excessive. There ivas evidence from which the jury might infer malice, and upon which they might, award punitive damages. This being true, neither the laiv nor the evidence furnishes us any standard by which we can ascertain certainly that they were excessive. The trial court heard ail of this evidence, saw the witnesses, observed their expression and demeanor, and hence was in a better position to judge of the extent of punishment which the evidence warranted than are we, who must form our conclusions upon the mere narrative of the transcript. This court, in treating of excessive verdicts in cases in which punitive damages could be awarded, through Justice Haralson spoke and quoted as follows: “There is no legal measure of damages in cases of this character. That a jury are authorized to award exemplarv or punitive damages, when a wrongful act is done wilfully, in. a wanton or oppressive
Large verdicts — some much larger than that in this case — have been sustained by other courts, in the following cases, and they are authority for the action of the lower court in declining to set aside the verdict in this case because excessive: Russell v. Bradley (C. C.) 50 Fed. 515; Wilson’s Case, 63 Ill. 167; Alliger v. Brooklyn Daily Eagle, 53 Hun, 633, 6 N. Y. Supp. 110; Id., 127 N. Y. 651, 27 N. E. 856; Stafford v. Morning Journal Ass’n, 68 Hun, 467, 22 N. Y. Supp. 1008; Smith v. The Times Company (Com. Pl.) 4 Pa. Dist. R. 399; Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; Ogden v. Gibbons, 5 N. J. Law, 518.
There was no reversible error in declining to exclude the statement by plaintiff (that Mr. Hood, of the Journal, was. a. gentleman). No ground was assigned for the objection or motion to exclude. It was a part of a conversation, portions of which had been called out by both parties.
Nor was there any error in declining to allow the witness Kennedy to testify as to the statement of Brown, as requested and insisted by defendant. It was shown that this statement was in writing, and it was the best evidence of the facts, and the court did not offer to allow defendant to prove by this witness exactly what Brown did say. The questions certainly were leading, and could have been refused for that reason.
However, Chief Justice Dowdell and Justices Anderson, McClellan, and Evans concur ip the reversal of this case for the refusal of charge 12 requested by the defendant. They think that the charge hypothesizes all
The winter is of the opinion that these counts, being in Code form, necessarily authorized a recovery for all actual damages, the natural and proximate result of the wrongs and injuries complained of. The question as to whether such damages are recoverable in this case, as well as that of nominal and punitive damages, was for the determination of the jury.
Reversed and remanded.
Rehearing
In Response to Application for a Rehearing.
It is urged by counsel for appellee on this rehearing that the sole question upon which this case was reversed, viz., the refusal to give defendant’s requested charge No. 12, was not insisted upon by counsel for appellant in their original brief. While this question was not considered by the whole court on the original hearing, it was by the writer of the opinion, and he thought, and still thinks, that there was a sufficient insistence on that point to merit its- treatment and consideration. On this application the question is considered by all the Justices who took part in this decision, and they concur
The writer is still of the opinion that charge 12 was properly refused for the reason that it denied a recovery for actual damages, such as for wounded feelings, mental pain, and anguish; but in this view his Brothers do not. concur.
The application for a rehearing is overruled.