67 Conn. 504 | Conn. | 1896
The complaint contains four counts,
The complaint alleges no special damage, and the answer contains no defense of justification. Publication being admitted, the questions for the trial court were: (1) Was the matter published per se defamatory? (2) Was it malicious, including the question of privileged communication ? And (3), whether privileged or not, has the plaintiff proved malice in fact, under § 1116 of the General Statutes ?
The last question will require no separate discussion, as it must be disposed of in the consideration of the second. As to the first question, it would hardly be claimed that the publications were not libelous with the meaning attributed to them by the innuendoes; and we think that the publications as recited in the complaint and admitted by the answer are, on their face, defamatory.
All the substantial errors claimed by the plaintiff relate to the disposition by the court below of the second question : were the publications privileged ? This question, assuming the fact of the publication of defamatory matter, is practically the question of libel or no libel; hence it is necessarily involved in the general issue; and notice in the pleadings that it will be raised on the trial, while permissible, has never been held to be obligatory; although, since the adop
The right to an action of libel (where special damages are not sought) depends on a publication of matter affecting the reputation of the plaintiff, of that character which is defined by law as necessarily causing actionable damage, made by the defendant in violation of a legal duty. The two main elements are : injury to the plaintiff and a wrongful act, i. e., an act in violation of a legal duty by the defendant. The first element involves the definition of a defamatory publication, the second, of the duties imposed by law in respect to such publications. These duties are well settled ; they are restrictive and permissive ; the general duty which binds every one to absolutely refrain from the publication of defamatory matter, unless he possesses evidences of its truth so certain that he can successfully establish his charge in a court of justice; and the special duty to communicate such matter in good faith upon any subject in which one has an interest, or has, or honestly believes he has, a duty (including certain moral and social duties) to a person having a corresponding interest or duty. An act by which another must be injured, intentionally done in viola
The defendant claims that the communications were privileged, and that the trial court erred in finding and ruling otherwise. The special facts found by the court are: the plaintiff was one of six members of the board of public works of the city of New Haven ; the action of a majority of the board of which the plaintiff was one, was in certain of the public prints and elsewhere called in question and much discussed; the defendant conducted a daily newspaper published in New Haven; the libel charged in each count was contained in extracts from the issue of this newspaper on the date alleged ; the main defamatory matter common to all the counts, related to the conduct of the plaintiff as such public officer; the publications were made without sufficient occasion or excuse, recklessly, and in disregard of the plaintiff’s rights and the consequences which might result to him therefrom, and for the purpose of injuring him in character and reputation. The court found the publications to be malicious, and rendered a general judgment for the plaintiff.
While the gist of the action of libel is malice, and malice is a fact to be found by the jury, it is nevertheless a fact
We assume, as claimed by the defendant, that the trial court has found that some portion of the defamatory matter specified in each count is not a privileged communication. Of course, if any specification of libel is supported by the law and the facts found, the judgment on that count is good. Hillhouse v. Dunning, 6 Conn., 407.
Examining first the second count, the libel charged is as follows:—
“The thunderbolt fell yesterday. And what a thunderbolt ! Commissioner' Atwater, the immaculate ‘ Jerry,’ bringing suit for libel! And all because The News had up and told the truth about ‘Jerry’ and his associates of the potent ‘Big Four.’ His name should be changed to ‘Jerry’ Bluff. Some interesting chapters of Commissioner Atwater’s business life are embalmed in the records of the law courts. A bond has taken the place of ‘Jerry’ Bluff’s attachment on The News corner lot, and it is again free and clear of all incumbrances. Try again, ‘ Jerry.’ Does W. Jere Atwater*514 represent himself or the ‘Big Four’ in the threatened court proceedings? It is strong public opinion that the whole Four need justification.”
The first four paragraphs were a portion of a news article containing an account of the commencement of this suit, the complaint in which then contained only the first count; the article giving at length the writ and complaint. The remaining paragraphs constituted editorial paragraphs by themselves.
The defamatory nature of this publication is too clear to call for discussion. It consists of an item of news, i. e., the commencement of a civil action, and comments on the plaintiff and his action. The occasion of the publication was the institution of a private suit. The claim that the official acts of a public officer was the occasion, will not hold; it is inconsistent with any honest interpretation-of the facts and the language used. Such an occasion is not privileged. There are few rights more important or more carefully protected by law, than the right of the citizen to appeal to a court of justice for redress of his alleged wrongs, and the right to an. impartial hearing. Before a cause is finally heard all attempts to prejudice the minds of the public against persons-concerned as parties, is- forbidden. Roach v. Read, 2 Atk., 469. Comments in a newspaper reflecting on the plaintiff, and representing the proceedings as vexatious and- unprincipled, are in violation of law and may be carried so for as to constitute an offense. Littler v. Thomson, 2 Beav., 129. There is no exception from this rule, either in law or morals, in favor of a newspaper that is itself the defendant. When a newspaper is sued for an alleged libel in commenting on a public man, such suit cannot operate as a muzzle. It may make such comments as are justified by the duty it owes the public, after as well as before the suit; but when it makes a suit against itself the occasion of a malicious attack on the plaintiff, impunging his private character, charging him with instituting a vexatious proceeding, attempting to prejudice the minds of the public against him as plaintiff in that cause, it plainly violates the law, and it would be a
So far as the judgment rests on the first and fourth counts, the defendant’s claim is presented in a different form. The occasion was a privileged one, i. <?., information in respect to the conduct of a public officer affecting the performance of his duties, with reflections on that conduct, given by a newspaper to the public interested in a faithful execution of his office. The duty of the Press to give such information and to make such comment, is recognized by law, and its free and fearless performance will be protected by the court; but the very nature of this duty implies good faith. When information both defamatory and false is published of a public officer, accompanied with slanderous comments, and from a malicious motive, such publication, even if its falsity is unknown to the publisher, is not made in performance of any duty legal or moral. Reading the specifications in these counts in the light of all the circumstances shown in the record legitimately bearing on the meaning of the language used, they may be construed as charging that the plaintiff, being a member of the board of public works, himself furnished materials to the city, the use and price of which were subject to the control of the board, in conscious violation of the charter and ordinances ; using his official position for his own pecuniary benefit, and shielding himself from investigation and removal from office through a corrupt understanding with a majority of the board and- certain members of the board of aldermen.
The defendant insists that the matters-complained of should be separated into two classes: first, statements of fact, i. e., that as member of the board plaintiff was interested in transactions with the city and with the board, and with others, in such a way that he could control the business of the city and get pecuniary benefits therefrom; second, comments on the
Confusion sometimes arises between an “ occasion ” of privilege, and a “privileged communication.” There may be an occasion of privilege without a privileged communication, but not the latter without the former. This confusion may be avoided by remembering that these phrases are technical terms used in respect to the evidence by which malice in the defendant — the real issue of fact — is determined. Where the evidence establishes circumstances which the law says support a duty to make a statement of facts honestly believed to be true, or an honest comment on facts, such circumstances are called an occasion of privilege; and when the evidence goes further, and shows that on such occasion the defendant made the communication complained of in good faith with honest intent to perform that duty, it is said the evidence has established a privileged communication. But in all cases the simple question in issue is, was the damage suffered by the plaintiff caused bjr the malice of the defendant ?
The publications in the first and fourth counts were made under circumstances which support a duty to make a communication characterized by the good faith which is essential to that duty, but the trial court has found from the evidence that the communications made by the defendant were not made in good faith, but recklessly, without sufficient excuse, and for the purpose of injuring the plaintiff in character and reputation. We are not now concerned with the nice questions of burden of proof and so-called shifting of that burden, which may occur in the trial of an action of libel. Such questions are not raised. The trial court has found upon the whole evidence that the fact of malice has
The defendant claims that inasmuch as the pleadings disclose circumstances from which the court must rule that the occasion was one of privilege, and the publications specified do not contain intrinsic evidence of malice, and the plaintiff adduced no extrinsic evidence of malice, the failure of the court to render judgment for the defendant was an error in law. If this case had been tried to the jury on the first and fourth counts only, and upon the close of the plaintiff’s evidence in chief the defendant had moved for a nonsuit, or as suggested in its brief, had filed a demurrer to the evidence, we are not prepared to say that it would not have been entitled to a judgment; the question may not be free from doubt, but it is not before us. The case was tried to the court on all the counts, and the claim that there was no evidence of malice was not made until after the evidence of the defendant was in and the case submitted on the law and all the evidence. While proof of malice is part of the plaintiff’s case, his failure to furnish sufficient evidence may be remedied by the evidence of the defendant, and it then becomes the duty of the trier to decide whether upon all the evidence malice has been proven.
The defendant asks us to hold that upon all the evidence, malice in fact was not proven; but that is a question for the trial court. The only question this court can entertain is the claim that the trial court has found malice in the absence of all evidence except that furnished by the publications specified, and this claim is unsupported by the record. The other articles of the defendant’s paper produced in evidence, the publications specified in the second and third counts, which would be, even if not contained in the complaint, proper evidence of malicious intent as to the other counts ;
Such questions of fact must be settled in the trial court. Osborne v. Troup, 60 Con.n., 485, 498; and we think the necessity for leaving such questions to a trial court is inherent in the law of libel. The administration of that law is concerned with two most important rights; the right of the individual to reparation for malicious injuries to his reputation, and the right of the people to liberty of speech, and of the press. The two rights are not inconsistent but interdependent. The individual has no right to demand reparation for those accidental injuries incident to organized society. Freedom of the press is the offspring of law, not of lawlessness, and its primary meaning excludes all notion of malicious injury. Indeed any true freedom of the press becomes impossible where malicious injuries are not forbidden and punished; and the strongest guaranty of that freedom lies in an impartial administration of the law which distinguishes the performance of a public or social duty from the infliction of a malicious injury. The maintenance of this distinction demands uniform principles of law defining the duty; and an exercise of the sound judgment of a trier of fact in reaching the vital conclusion of intent, dependent on evidence and circumstances changing with each case presented, and impossible to confine within the rigid rules of logic that constitute a legal principle. And so the law of libel wisely and necessarily leaves to the judge the declaration of the law — the same for all cases — defining the duty; and commits the question of the actual performance of the duty so defined, to the jury.
The defendant also claims that the judgment is erroneous because the court has not specially found the fact of the falsity of the libel. A malicious libel is presumed to be false, unless its truth is affirmatively proved by the defendant. But where the plaintiff relies upon the falsity to rebut evi
The defendant claims error in rulings of the trial court on questions of evidence; and chiefly in the refusal of the court to receive evidence of the truth of the defamatory charge, when offered by the defendant as a defense to the action. This ruling is stated in the finding as follows : “The defendant, as a part of its case, offered to prove that the matters contained in said several publications were true in fact, as a defense to this action. To this evidence the plaintiff objected, on the ground that the truth of the libelous matters was not pleaded; and thereupon the court ruled that the truth could
Unless the truth of the charge is pleaded in justification, the defendant is not permitted to prove the truth of the words, either for justification or for the mitigation of damages. Such principle is settled law, and in this State certainly is not open to discussion. Swift v. Dickerman, 81 Conn., 285, 291; Donaghue v. Gaffy, 53 Conn., 43, 51. The defendant may, indeed, offer evidence to prove his good faith, an honest belief in the truth of the utterance published, although such evidence may also tend to prove the truth of the charge. Swift v. Dickerman, supra. It is received in such case as, in effect, proof of probable cause, where the occasion of publishing offered prima facie evidence of an excuse for stating what may in fact be false, but is honestly believed to be true. Bradley v. Heath, 12 Pick, 163,165. There is no claim that the court below failed to apply this rule; and it does not appear that any evidence fairly tending to establish probable cause, either for the purpose of proving a privileged communication, or in mitigation of damages, was rejected because it also tended to prove the truth.
The defendant however, insists that the rule requiring the truth to be specially pleaded in justification, is a rule of pleading which has been changed by the Practice Act; and that the rules of court in authorizing the use in an action of libel, of a complaint containing in a separate paragraph “said publication was false and malicious,” give to a denial of that paragraph in the answer, the effect of putting the plaintiff to the proof of the falsity of the publication. This would practically nullify the presumption that a defamatory charge is false; a presumption clearly essential to any adequate protection under the law of libel. The universal principle underlying that law, and a careful study of its curious and ■ complicated development in England, from the first statement
The other claims of error in rulings on evidence do not call for special comment. The court admitted as evidence articles from a New Haven newspaper, claimed as sources of information on which the defendant relied to prove good
Portions of the deposition of Edward I. Atwater tended to prove the fact that prior to the alleged libel the firm of which the plaintiff was the head, and by his direction, withdrew its advertising patronage from the defendant. We cannot say that this fact, in connection with the fact also appearing in evidence, that such withdrawal was known to the editor-in-chief who was president and a stockholder of the defendant corporation, when he wrote the alleged libel, was not relevant to the fact of malice. The objection to the deposition was a general one; and a part of it being admissible, it would not have been proper for the court to exclude' it, even if it contained other matters obnoxious to a specific objection. Merriam v. H. & N. H. R. R. Co., 20 Conn., 354, 363.
The admission of the evidence contained in the city YearBook, showing that members of other city boards on whom no adverse comment was made, had furnished supplies to the city under circumstances similar to those claimed in respect to the plaintiff, and to an extent in comparison with which the supplies furnished by the plaintiff were trivial in amount, was not, under the circumstances detailed in the finding, erroneous.
The exclusion of the question asking the witness Criddle whether, subsequent to the publications, he had seen the testimony in the case of the Gflobe Sewer Co., was correct. The exclusion of a question to the same witness, whether persons from whom he had received information which he had not communicated to the editor-in-chief and whose names he did not know, were persons in official positions or private
The court did not err in expunging paragraph five in the defendant’s answer to the second count. It was plainly unnecessarily prolix, and a statement of evidence rather than of fact. It was not a justification — if so, it should have been stated as a separate defense — and its expunging could not injure the defendant. Page v. Merwin, 54 Conn., 426, 435.
The reasons of appeal assign seventy-two errors. Those properly relating to questions of law are disposed of by the views we have expressed. The other assignments do not state errors in respect to the rulings and decisions of the court upon questions of law arising in the trial, but grounds for an application to rectify the appeal.
By operation of § 1141 of the General Statutes, as extended and enlarged by the valid portions of the Act of 1893 (Public Acts of 1893, p. 318) the application authorized by that section for a correction of the appeal, may be contained in the appeal itself, and be determined on argument of the appeal, upon an inspection of the record, as well as upon any other inquiry which the provisions of that section may authorize. Styles v. Tyler, 64 Conn., 432, 461. The grounds for such application are not “reasons of appeal,” and cannot ordinarily, if ever, furnish ground for reversal of judgment or for a new trial; although pending the adoption of rules of practice (which, as intimated in Styles v. Tyler, would be essential to the regulation of such application if the Act of 1893 remained unchanged), the improper intermingling of the grounds for an application to correct the appeal with the “reasons of appeal,” has been overlooked.
Upon examination of the assignments of error which relate to the action of the judge in preparing the finding necessary to properly present the objections to testimony and his rulings, and a careful inspection of the whole record, — testing the errors claimed by the facts appearing in the record not included in the finding — we are satisfied that the finding, as prepared by the judge, presents these questions fairly and
The assignments which relate to the defendant’s claim that the special facts on which the judgment is founded, are against the weight of evidence, and that the appeal should be corrected by altering the finding in this respect, demand consideration. The defendant in argument insists specially on his second reason of appeal and his seventh ground of appeal — i. e., that the court erred in finding facts repugnant to the special facts claimed by the defendant to have been proved, and which the court found to be untrue. This claim goes to the root of the defendant’s alleged grievance, and is in truth the substantial ground of his appeal. The defendant, in his request for a finding, asked the court to incorporate in the finding the following facts, which he claimed to be proved by the evidence: No personal malice existed against the plaintiff on the part of the defendant, or Mr. Davenport, its managing editor, who caused the article to be published (so far as related to proof of malice both parties treated Mr. Davenport as practically the defendant) ; no malice existed, unless it must necessarily be inferred from what is contained in the articles published; Davenport caused the articles to be published in the belief that the facts specified in respect to the plaintiff were true; in the belief that the plaintiff’s acts charged were prejudicial to the city, in violation of law, and demanded his removal from office; in the belief that it was his duty to criticise said acts as the acts of a public officer and as items of news; such belief was based on investigations and careful inquiries in regard to the truth of the matters charged, and also on articles published in other journals ; there was good reason to believe the charges to be true; there was no malice in fact.
The court did not find these facts from the evidence, but found facts entirely repugnant, as stated in the record. If we can re-try these facts, and should be of opinion that the facts as claimed by the defendant are clearly supported by the weight of evidence, we must find such facts, incorporate
The defendant does not make the broad claim that this court can re-try all facts found by the trial court; but that when the question of law involved depends on the special facts found, the Act of 1898 requires this court to re-try and adjudge such facts as incident to the review of the question of law; and that the re-trial of such facts is not inconsistent with the recent decisions of this court. Such a claim, essential to the determination of this appeal, requires us to restate the principle established in Styles v. Tyler, supra (p. 442). In that case we said: “ In 1834, Chief Justice Daggett in delivering the opinion of the court in Weeden v. Hawes, 10 Conn., 54, — Judge Peters, a member of the Constitutional Convention of 1818 concurring, and Judge Church, another member of that convention being then, a member of the court, though not present when the case was decided — ■ said that this court was a Court of Errors and had ‘ no constitutional power to decide a question of fact,’ and in 1867 this court expressed the opinion that ‘ it was the intention of the framers of the Constitution that the Supreme Court of Errors should be a court for the correction of errors in law.’ The language used clearly imports this, and such has been the understanding of the legislature, of the courts, and of the people of the State. Dudley v. Deming, 34 Conn., 169, 174. We did not in that case discuss the reasons for the opinion given, but we are now satisfied of its correctness after a careful re-examination of the provisions of the Constitution.”
For this reason, — because the jurisdiction of this court as fixed by the Constitution relates to correction of errors in law and not to the re-trial of questions of fact, — we held “ that the Act of 1893 does not require this court to determine upon evidence spread upon the record questions of pure fact settled by the trial court; ” and for the same reason and in order to give some effect to an Act of the legislature, we held that “ the Act as a whole fairly expresses a purpose, consistent with the jurisdiction of this court, in language not so inter
The present claim is that the appeal raises a question of law, i. e., is the judgment for the plaintiff a legal conclusion from the facts found? The defendant claims that the facts settled by the trial court are connected with this question of law, i. e., upon the facts as found by the court the question must be decided one way, while upon the facts as found by the defendant it must be decided the other way; and that the Act of 1893 requires this court, as an incident to the correction of the appeal, to determine upon the evidence the questions of fact settled by the trial court, to substitute our findings of fact for those of the trial court, and then to reverse the judgment of the court below for errors in the application of law to facts it had not found.
It is patent that the real substance of such a proceeding is nothing but a re-trial of pure questions of fact settled by the final judgment of the Superior Court. Its actual nature cannot be changed by calling it a correction of the finding. A re-trial upon the testimony and the adjudication of essential facts on which a judgment is founded, by whatever name it may be called, is a trial of the facts in that cause, whether its effect be limited to ordering a new trial, or extends to the rendition of a final judgment on the facts so adjudicated; and is inconsistent with -the primary distinction drawn by the Constitution, between the jurisdiction original and appellate of courts for the full trial and adjudication of causes, and the jurisdiction of a court of last resort for correcting errors in law which may have intervened in the course of a trial. Facts found by a trial court upon hearing and considering the testimony and upon which is founded a judgment complained of as not being the true voice of the law upon such facts, can only be re-tried in courts to which the Constitution commits a jurisdiction for the adjudication of
In accordance with the provisions of the Constitution establishing the jurisdiction of this court, and the contemporaneous construction of that instrument to be found in the legislation fii-st enacted to carry out its provisions, and remaining unchallenged for a period of seventy-five years; with the uniform practice of this court since its organization ; with its opinion clearly expressed in Weeden v. Hawes, and Dudley v. Deming, arid its deliberate decision in Styles v. Tyler, we think the Act of 1898, in so far as it requires this court to determine such questions of fact, is inconsistent Avith constitutional provisions and inoperative.
The defendant’s supplemental reason of appeal assigns as error, the failure of the court to note on the margin of each paragraph in the request for a finding, either “proven” or “ not proven.” While in a proper case the omission of the court to so mark each paragraph might be corrected, in no case could such omission be ground for reversal of the judgment. In Ketchum et al. v. Packer, 65 Conn., 544, 552, Ave stated that the words “ found ” and “ not found” were equivalent to the statutory words, although their use could not be approved, and that a paragraph which could not be found proven as a whole, should be marked not proven. In Styles
As the Act of 1898 has been repealed since this appeal was taken, further comment on such matter of practice is unnecessary.
There is no error in the judgment of the Superior Court.
In this opinion the other judges concurred.