167 Ill. App. 561 | Ill. App. Ct. | 1912
delivered the opinion of the court.
The court did not commit error, as. contended by appellant, in refusing appellant’s request at the close of the evidence to direct a verdict of not guilty. In an action for a libel, it is always a question of law for the court, in the first instance, whether or not the proved publication of the defendant is libelous. If such publication of the defendant is not susceptible of a libelous meaning, there is no question for the consideration of the jury and a verdict of not guilty should be directed by the court. Where the whole publication is susceptible of only one meaning and is libelous per se, it is the duty of the court to instruct the jury that the publication is actionable, if made, and no evidence of a different intent is admissible in such case to prove the defendant’s innocence. From the publishing or speaking of actionable words malice is implied, which will justify the assessment of exemplary damages. Gerald v. Inter Ocean Pub. Co., 90 Ill. App. 205; Schmisseur v. Kreilich, 92 Ill. 347; Miller v. Johnson, 79 Ill. 58; Berger v. Pub. Co., 132 Iowa, 290; Dowie v. Priddle, 216 Ill. 553, 558.
It is also the province of the court to determine whether the language of the alleged libel is ambiguous, or double in meaning, one of which is libelous. In determining whether the alleged libel is double in meaning, one of which is libelous, the court must not separate it into parts, and construe each part separately, but must construe each part of the alleged libel in connection with all the rest of it. When the court has so determined that it will bear such double meaning, it is then the province of the jury to determine in which sense the language was used, and for such determination the whole publication should go to the jury. Van Vactor v. Walkup, 46 Cal. 124; Berger v. Pub. Co., 132 Iowa, 290; Graves v. Waller, 19 Conn. 89; Hunt v. Algar, 6 Carr. & Payne, 245, (25 Eng. Com. Law, 415); Young v. Gilbert, 93 Ill. 595.
When the meaning of slanderous words spoken is made doubtful by reason of other words used at the same time or in the same conversation, everything said in connection with the slanderous words must be considered in determining if the words were slanderous. Want of malice is a defense. McKee v. Ingalls, 4 Scam. 30; Nelson v. Borchenius, 52 Ill. 236; Zuckerman v. Sonnenschein, 62 Ill. 115; Waller v. Butler, 15 Bradwell, 209; Sollitt v. Moore, 107 Ill. App. 479.
A libel, as defined by our statute, is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule or financial injury. By applying the foregoing rules to the facts in this case it is clear, we think, that' the alleged libelous matter, as proved in this case, is susceptible of a double meaning, one of which is libelous, and that it was the province of the jury to determine from the evidence whether or not the appellant was guilty of libeling appellee. If the jury should find from the evidence that the intent and purpose of appellant as to the appellee, in republishing the slanderous article of the Record-Herald was in good faith to vindicate her and to thereby repel the slanderous charge against her character, and that the readers of the whole publication must have so understood it, then the defendant should be found not guilty. If, on the other hand, the jury should find that the mailing of the alleged libelous matter was for the purpose of advertising its ■ corsets, and that the denial of the libelous charges of the Record-Herald was merely a pretense for the purpose of using it and the Inter Ocean article and picture of the model woman in the advertising of its corsets, without regard to appellee’s rights in the matter, and appellee was thereby libeled, then appellant in such case should be found guilty. In making this finding it is proper and necessary for the jury to consider both exhibits “A” and B,” and even the booklet referred to, if in evidence, together with all the other evidence in the case. We do not deem it proper to discuss the probative force of each part of these exhibits in reaching our conclusion that the meaning of the publication is double, one of which is libelous, in view of our decision to revérse the judgment, and particularly as we think it apparent from an inspection of the exhibits and the evidence that such discussion is unnecessary.
For the foregoing reasons appellee’s instruction No. 1, as read to the jury, is erroneous. It reads as follows:
“You are instructed that any publication, the necessary tendency of which is to expose a person to hatred, contempt or ridicule is a libel, and if you find from the evidence that the defendant caused the article set forth in the declaration to be printed, and mailed it to a number of persons and that it was received and read by one of such persons, and if you also believe from the evidence that plaintiff did not consent that such article should be so printed and mailed, and if you find from the evidence that said article as mailed to such persons by defendant had a necessary tendency to expose the plaintiff to hatred, contempt or ridicule, you will find the issues for the plaintiff.”
The vice of this instruction will be readily seen by mere inspection of the instruction. Only the article as published by the Record-Herald is “set forth in the declaration,” and the jury are told, in substance, by this instruction that if they found from the evidence “that said .article” (set forth in the declaration) “as mailed to such persons by defendant had a necessary tendency to expose the plaintiff to hatred,” etc., “you will find the issues for the plaintiff.” The article published in the Record-Herald, when considered alone, is libelous per se. The instruction violated the rule that the whole publication must be considered in determining the question of whether or not there is a libel. This instruction is necessarily misleading and there was no other instruction given in the case that had any tendency to correct this error, that is to say, that called the attention of the jury to the fact that the whole publication must be considered in determining the meaning of appellant.
Appellee’s second instruction is erroneous. It tells the jury that “if you find the issues for the plaintiff and believe from the evidence that the publication was made maliciously or wantonly and under circumstances evincing disregard for the rights of the plaintiff, and with malice, then in assessing her damages you are not confined to such damages as will simply compensate plaintiff for such injuries as the evidence-shows she has received by reason of the publication of the defamatory words set forth in the declaration, but you may in addition thereto assess against the defendant by way of punishment to it and as an example to others such damages as the jury in their sound judgment under all the evidence in the case, believe the defendant ought to pay.” This instruction is subject to two objections. In the first place, by the language of the instruction, it is absolutely assumed that the evidence shows that appellee has been injured by reason of the publication of “the defamatory words set forth in the declaration.” The instruction is also vicious in telling the jury they may assess against the defendant such damages as the jury “believe the defendant ought to pay,” under all the evidence in the case, instead of closing with the proper conclusion, “such damages, if any, as you shall find from all the evidence in the ease that she is entitled to recover against the defendant.” It should always be borne in mind when formulating instructions to the jury that a plaintiff can only recover “such actual damages as he has sustainedand, if it is a proper case for exemplary damages, that he can then only recover such damages as he is entitled to under the evidence, and that it must not be assumed by an instruction that he has sustained damages when the question is controverted. “The jury are to inquire not what the defendant can pay (or ought to pay) but what the plaintiff ought to receive.” Holmes v. Holmes, 64 Ill. 294; Smith v. Wunderlich, 70 Ill. 426; Dady v. Condit, 188 Ill. 234.
There was no evidence in this case of the pecuniary ability of the defendant, and the question of such ability is virtually submitted to the jury by the above instruction, and the damages made to depend solely on that - question. Where such evidence of pecuniary worth is not proved the jury have no right to give any more damages than they would if it had affirmatively appeared that the defendant, was without pecuniary resources. T. W. & W. Ry. Co. v. Smith, 57 Ill. 517; Mullin v. Spangenberg, 112 Ill. 140, 146.
Appellant’s contention, however, that appellee’s second instruction attempts to submit the question of actual or express malice as the basis of exemplary damages, is not tenable, if it means thereby an actual intent on the part of appellant to do appellee an injury. Express malice, or malice in fact, is not necessary to authorize exemplary damages. Proof of express malice may be made in any libel case to enhance the plaintiff’s damages, and the defendant may offer proof showing the absence of express malice in mitigation of damages, but not as barring the right of the plaintiff to recover exemplary damages. Hintz v. Graupner, 138 Ill. 158. Express malice, or malice in fact, is so commonly understood that a definition thereof would not seem to be necessary in an instruction to the jury. The failure of the court to define malice, and especially malice in fact, could not have injured appellant in our judgment. Implied malice, or malice in law, was not in express terms referred to in the instructions.
If the intent of the defendant in a suit for a libel or for slander be doubtful, the witnesses may be asked their opinion as to the intent of the defendant. Their answers are not conclusive upon the jury, but such testimony is admissible as tending to show what meaning hearers of common understanding would and did ascribe to the alleged libelous matter. Particularly is this rule applicable where the witnesses are also parties who read the alleged libelous matter. We think the court was in error in excluding testimony of the above character in this case. McKee v. Ingalls, 4 Scammon, 30; Nelson v. Borchenins, 52 Ill. 236; Dexter v. Harrison, 146 Ill. 169; Dexter v. Taber, 12 Johns. (N. Y.) 238; 2 Greenleaf on Evidence, Sec. 417.
It is also argued by appellant that the damages awarded by the jury-are excessive. We do not think' it necessary or proper to discuss this question, or the merits of the case. For the errors indicated the judgment of the court is reversed and the cause remanded.
.Reversed and remanded.
