| N.H. | Mar 20, 1876
Lead Opinion
FROM ROCKINGHAM CIRCUIT COURT.
It is a sufficient answer to the objection against admitting secondary evidence of the existence and contents of the alleged libellous writing, that the original was shown to be beyond the jurisdiction of the court. Burnham v. Wood, 8 H.H. 334; Little v. Paddleford,
There was evidence from which the court might well find authority on the part of Admiral Porter to write the letter which the plaintiff received, with a copy of the supposed libel, on behalf of the navy department; and that fact being found, the letter is to be regarded as the act of the department, and was on that ground admissible.
I am inclined to think the ruling admitting the plaintiff's testimony that he sold his furniture at a loss, upon being transferred from Portsmouth, may be sustained upon the doctrine of Ingram v. Lawson, 6 Bing. (N.C.) 212. That was a statement published in the Times newspaper, that a ship, of which the plaintiff was owner and master, and which he had advertised for a voyage to the East Indies, was not a sea-worthy ship, and that Jews had bought her to take out convicts. *287 The statement was held to be a libel upon the plaintiff, in his trade and business, for which he might recover damages without proof of malice, or allegation of special damage. The action was brought within three days after the publication of the libel. The plaintiff was permitted to prove at the trial what was the average profit to the captain of a ship upon an East India voyage, and that, upon the first voyage he took after the publication of this libel (it was also after the action was commenced), the plaintiff's profits were nearly £ 1,500 below the average.
The judges were unanimous is holding that the evidence was properly received on the question of damages. Mr. Sedgwick, speaking of this case, says, — "But evidence of profits was not regarded properly as a measure of damage;" and, after quoting some remarks of the judges in rendering their judgments, he repeats, — "The evidence was admitted, not as a measure of damages, but to serve as a guide for the exercise of that discretion which, to a certain extent, is always vested in the jury." Sedgw. on Dam. 92. It does not appear here that the plaintiff undertook to state the amount of his loss on his furniture; so that the loss from this cause could not have been made a measure of the damages. So far as the case shows, it was no more than a statement, made in general terms by the plaintiff; that he suffered inconvenience and loss as a direct consequence of the libel. His position was, that the libel caused his transfer from the naval station of Portsmouth. Whether he ought to recover anything for that reason depended upon whether the transfer caused him inconvenience and loss or not. Upon the whole, I am of opinion the verdict ought not for this reason to be disturbed.
The question as to the publication being privileged was rightly left to the jury. See authorities cited by the plaintiff.
The pleadings are not set out in the case as reported for our consideration, and without them I think it is impossible to say whether the instructions which the judge gave to the jury, and his refusal to give those requested by the defendant, were right or wrong. Certainly the case furnishes no evidence from which it can be concluded that they were wrong, and so no ground upon which the verdict can be set aside. But a copy of the pleadings was furnished us at the argument, and, upon an examination of the record, I think the rulings and charge of the court were right.
The second plea, which sets out certain specific facts going to show that the words were true, closes in this way: "And the defendant, believing that the public good required that said plaintiff should be removed from said office at said station, and that a suitable officer should be placed in his stead, and that the senators and representatives in congress from the state of New Hampshire were the proper persons and officers to be petitioned in order to procure the removal of said plaintiff from said office at said station, in good faith, and with out any malice or ill-will to the plaintiff, but solely to procure the removal of the plaintiff from said office at said station for the public good, signed said petition," etc. Here is a most unequivocal and carefully drawn allegation that the occasion was lawful and the end justifiable. *288
It is an integral part of the same plea in which the facts are stated which go to show that the words were true. This plea comes nearer than any of the others to setting up the truth in justification. But the legal effect of the allegations quoted above is clearly a qualification of the preceding statements in the plea, insomuch that the plea would be sustained, as I understand it, by proof that the defendant had probable cause to believe and did believe that they were true, supplemented by proof of this additional allegation of the lawfulness of the occasion. Palmer v. Concord,
Concurrence Opinion
In the case of Beattie v. Hilliard,
As to the paper from Admiral Porter informing the plaintiff that he was transferred, and assigning, the reason, there was competent evidence tending to show that he was the acting officer who had authority to order the transfer, and the evidence therefore was rightly admitted.
One of the natural and necessary and immediate consequences of the transfer was the necessary expense attendant upon the breaking up of the plaintiff's home at Portsmouth, and establishing a new home at the point to which he was transferred; and it appears to me that the evidence tending to show that as one of the circumstances was admissible.
The case as originally drawn makes no allusion to any special pleas. The case is drawn as if it had been tried on the general issue, and every defence admitted which could have been made by special pleading. The case of State v. Burnham,
In the course of the discussion, however, it has come out that the *289
case was tried on special pleas as well as on the general issue, and assuming that those pleas were as stated in the report of the case of Carpenter v. Bailey,
I have thought proper to examine the pleadings, and it appears that they were designed to bring forward precisely the defence which was indicated in the case of State v. Burnham, — the issue on the second plea being that the words were true, and spoken on a justifiable occasion, and on the fourth plea, that the defendant believed them to be true.
The issues having been made up on these pleadings, it was the business of the court to try those issues. The court was not merely trying the question whether or not the publication was true, but also whether, if it were true, or, in the fourth plea, believed to be true, it was made on a lawful occasion. Whether the defendant was obliged so to restrict his defence or not, whether he could have stood safely upon a plea alleging the truth and nothing further, were matters with which the court on that trial had just nothing at all to do. The matter in hand was to try the issues, and nothing else. Section 11, of ch. 208, Gen. Stats., is by its terms limited to cases of double replication to the same plea, and is understood not to apply here. I am not aware of any particular in which it is suggested in the briefs that the charge was not correct in this particular.
There must, therefore, be judgment on the verdict.
Concurrence Opinion
1. The original of the alleged libellous letter was shown to be in the navy department at Washington when the copy was taken. The identity of the paper and the genuineness of the defendant's signature were fully proved. The original paper being beyond the custody or control of the witness, and beyond the process of the court, secondary evidence was properly admitted. Beattie v. Hilliard, supra; Dunbar v. Marden,
2. The plaintiff applied to the secretary of the navy for information in regard to his removal, and was referred to Vice-Admiral Porter, next in authority in the department of the secretary; and Porter was found in control of the department by the plaintiff. Here was evidence from which the court could find that the letter read in evidence was the official act of one who had authority. It was admissible as explaining the reason for the removal of the plaintiff.
3. Upon the question of damages, the rule is, that the plaintiff must state in his declaration any special damage he claims to have received, and must prove that it was exclusively, immediately, legally, and naturally the consequence of the libellous words. 1 Hilliard on Torts 258 (ch. 7, sec. 18). The plaintiff has alleged that by reason of the libel he was compelled to remove from Portsmouth, break up housekeeping, and sell his furniture at a loss. In Knight v. Gibbs, 1 A. E. 43, *290
where the plaintiff was turned out of her lodging and employment by reason of slanderous words spoken of her by the defendant, Lord DENMAN, C.J., said, — "The proper question was, whether the injury was sustained in consequence of slanderous words having been used by the defendant." Injuries to the reputation consist in the pain inflicted both bodily and mental, and in the expenses and loss of property which they occasion. 2 Gr. Ev., sec. 267; — see, also, Woodbury v. Jones,
4. In State v. Burnham,
Whether the occasion of the publication of this alleged libel was lawful, depends upon the good faith and real purpose of the publisher, and therefore must necessarily be settled by the jury. In Palmer v. Concord,
The defendant claims to justify not only by pleading that the words were true and spoken on a justifiable occasion, but that he believed them to be true. These were the issues tried, and the charge of the judge, in this view of the case, was certainly correct. It would be no sufficient justification to show that a part of the matter was true. Carpenter v. Bailey, supra, 594. The exceptions must be overruled, and there must be
Judgment on the verdict. *291