241 Mo. 326 | Mo. | 1912
Lead Opinion
— This is an appeal from a judgment in an action for libel. The suit was brought in the circuit court of Cole county. On the application of the' defendant a change of venue was awarded to
By way of inducement and colloquium it is alleged in the petition substantially that'plaintiff held the office of Secretary of State in this State from the second Monday in January, 1901, until January 91, 1905', and that as such officer it was his duty under the law, either in person or by bank examiners appointed by him, to examine into the financial condition of all State banks of this State and to require the said banks to comply with the laws relating to them. That during plaintiff’s term of office Harvey W. Salmon and Gr. Y. Salmon were the owners of a private bank and were engaged in the banking business at the city of Clinton in this State, under the name of “Salmon Bank.” That the said bank continued in business throughout plaintiff’s term of office and until about the 20th day of'June, 1905, at which time its business as a private bank was discontinued. That the defendant is a domestic corporation with a paid-up capital stock of one million dollars, and is the owner and publisher of a daily newspaper known as the St. Louis Post-Dispatch. That the said newspaper is printed and published in the city of St. Louis where the defendant has its -principal office and is sold and circulated, not only in the city of St. Louis, but in the counties of this State, including Cole county, .and also in several other States of the Union.
The petition then alleges the publication of the article complained óf as follows:
“That on June 28, 1905, in.the edition of said newspaper bearing said date, in the editorial columns thereof, the defendant corporation (having reference to said Salmon Bank and plaintiff’s official connec*336 tion therewith) did wrongfully, wickedly and with malice publish of and concerning plaintiff the following false, libelous and defamatory words and matter, to-wit:
“IS IT A POLITICAL JUNKSHOP?
“The special correspondent of the Post-Dispatch states upon authority of those having examined the Salmon Bank at Clinton, that the bank has been insolvent since November, 1903, when George M. Casey failed. Why was not the bank closed' at that time? Why was it permitted to keep its doors open and receive the deposits of a confiding public? Major Harvey Salmon (meaning one of the owners and proprietors of said Salmon bank) was a member of the Democratic State Central Committee, and the intimate, political friend of the machine leaders of the Democratic party (meaning the political party with which plaintiff was allied and to which he owed his nomination for and election to said office of Secretary of State). The bank’s books were examined just before Ex-Secretary of State Cook (meaning plaintiff herein) went out of office, but no action was taken and the bank was left open to take the money of unsuspecting depositors. Is the damaging derelict a part of the political junk of the old “Democratic State Machine” (insinuating and meaning thereby that the plaintiff herein while Secretary of State of this State as aforesaid and while administering the duties of said office was guilty of wilful and malicious partiality, neglect and misconduct in his official capacity and of favoritism and violation of official duty, and was actuated by personal, political and other improper motives in the matter of the examination and supervision of the said Salmon Bank at Clinton, Missouri, whereby said bank was permitted to carry on its business after it had become insolvent and that in consequence thereof its depositors were*337 misled and deceived and suffered financial loss and injury).”
The petition then alleges the number of copies placed in circulation of the edition of the paper containing the publication complained of and that copies thereof were sold and published in said Cole county.
It is thereafter alleged: “That -defendant corporation in the manner and by the means aforesaid did falsely, maliciously and wickedly print, publish, circulate and give currency to the charge- that plaintiff, while administering the office of Secretary of State of this State (said office being one of public trust as hereinbefore stated), was guilty of partiality, favoritism, official misconduct, violation of official duty and was actuated by improper motives in relation to the examination and supervision of said Salmon Bank, as hereinbefore more fully stated and set out.”
Judgment is prayed for actual damages in the sum of fifty thousand dollars and for the same amount as punitive damages.
A demurrer to the petition was overruled and defendant filed an answer- consisting of three separate defenses: First, a plea to the jurisdiction of the court; Second, an admission of the publication of the article set out in the petition, also of the formal allegations of the petition as to matter of inducement, but denies that the alleged cause of action accrued in Cole county, denies the innuendo set forth in the petition, denies that the said publication was false, malicious or defamatory and denies generally the other allegations of the petition; Third, a defense setting forth at length facts covering the history of the Salmon Bank, its bad investments and unsafe condition as disclosed by examinations both before and during plaintiff’s term of office, and plaintiff’s failure to examine the bank as required by law, also the friendly political relations existing between plaintiff and the owners of the bank;
The reply contained a plea alleging a waiver of jurisdiction and that the alleged want of jurisdiction had been been submitted to and decided by the court in Cole county and was therefore adjudicated. Also a denial of the allegations of paragraph three of the answer.
On the trial, after introducing testimony in support of the matters of inducement alleged in the petition, plaintiff read in evidence the article in suit, also an article relating to the. same subject which appeared in an issue of the same paper on July 2, 1905-, and rested.
A peremptory instruction in the nature of a demurrer to the evidence was asked by defendant and refused.
The defendant then introduced evidence in support of its answer which covers over four hundred pages of the printed record. This testimony was largely as to the history of the Salmon Bank from its establishment in the year 1868, and particularly as to its financial condition and the reports of bank examiners concerning it during the period of about six or seven years before it was closed. The facts thus developed tended to prove that the owners of the bank had invested largely in cattle ranches in Texas and elsewhere and that the capital therefor had been borrowed from this bank. These ventures were unsuccessful and so involved the affairs of the bank that during the administration of plaintiffs’ predecessor in the early part of the year 1900, Bank Examiner Oldham, who had recently examined the bank, wrote to plaintiff’s predecessor concerning the necessity of keeping a close watch on this bank, concluding his letter with the statement,
Under plaintiff’s administration of four years ■'this bank was examined but three times, the last being only a few days before the expiration of plaintiff’s term of office. For a period of more than two years while plaintiff was in office, including the year of the ■Casey failure, it had not been examined at all, although every other bank in the district had been examined at least once during that time, many of them twice and some of them three times. The bank was closed June -20, 1905./ Its liabilities were about eight hundred thousand dollars and its assets about ninety-five thousand dollars. When the last examination was made
In rebuttal plaintiff testified in his own behalf that when he was elected to the office of Secretary of State he was not an experienced banker and tried to have as competent men under him as he could secure and so retained all of his predecessor’s bank examiners, and that they were all competent men. That he knew Maj- or Salmon well and had been associated with him politically and that they were close friends. That he had entire confidence in Major Salmon’s integrity and regarded both owners of the bank as being solvent and wealthy men. That he had no reason to believe that they were in an embarrassed financial condition. That he had never received any political favors from Maj- or Salmon and that he had not neglected his official duty nor favored Major Salmon in discharging the duties of his office.
Mr. Bunce and Mr. Carstarphen, bank examiners under plaintiff, testified as to the examination of the bank during plaintiff’s administration.
Defendant offered testimony in rebuttal and at the close of all the evidence renewed its instruction in the nature of a demurrer, which was again refused.
II. Complaint is made that the court erred in refusing defendant’s instruction in the nature of a demurrer, asked at the close of plaintiff’s evidence in chief and renewed at the close of all the evidence. The ruling of the court in refusing such instruction when first asked, need not be considered, for, by offering evidence in support of its answer and renewing its demurrer at the close of all the evidence, the defendant waived its rights under the first demurrer, and must now stand upon the action of the court when the instruction was refused a second time and as viewed under all of the evidence in the case. [Weber v. Strobel, 236 Mo. 649; Klockenbrink v. Railroad, 172 Mo. 678; Eswin v. Railroad, 96 Mo. 290.]
In libel and slander cases the practice is recognized and commended of challenging the sufficiency of plaintiff’s case, both as to the law and the evidence, by an instruction in the nature of a demurrer, as was done by the defendant in this case. [Diener v. Chronicle Pub. Co., 230 Mo. 613; Ukman v. Daily Record Co., 189 Mo. 378; Heller v. Pulitzer Pub. Co., 153 Mo. 205.]
In support of the assignment of error under review it is contended by appellant that: “The article
While the absence of an imputation of crime does not necessarily render a publication non-libelous per se, yet the question whether crime is so imputed by the publication, is properly presented for decision in this case; for, if it does impute crime, the authorities are agreed that it is libelous per se and it would follow that the instruction in the nature of a demurrer, so far as it challenged the sufficiency of the petition, was correctly refused. That part of the article, together with the innuendo explanatory thereof, counted upon by the plaintiff in connection with the context, as imputing the commission of a crime, is as follows: “Is the damaging derelict a part of the political junk of the old ‘Democratic State Machine’ (insinuating and meaning thereby that the plaintiff herein while Secretary of State of this State as aforesaid and while administering the duties of said office was guilty of wilful and malicious partiality, neglect and misconduct in his official capacity and of favoritism and violation of official duty and was actuated by personal, political and other improper motives in the matter of the examination and supervision of said Salmon Bank at Clinton, Missouri, whereby said bank was permitted to carry on its business after it had become insolvent and that in consequence thereof its depositors were misled and deceived and suffered financial loss and injury).” The crime which respondent maintains was thus -charged against plaintiff is defined by section 4411, Revised Statutes 190-9, as follows: “Every person exercising or holding any office of public trust who shall be guilty of wilful and malicious oppression, partiality, misconduct or abuse of authority in his official capacity
Two questions are thus presented: Does the petition state a cause of action against the defendant, upon the ground that the publication complained of imputed to plaintiff the crime denounced by said section 4411, or do the .alleged defamatory words, when construed according to their plain and ordinary meaning, impute to plaintiff such crime ¶ If not, then unless the words are libelous per se upon another ground to be referred to presently, the court shoiild have given the instruction as requested, for whether the petition was sufficient in law or whether the words were capable of the defamatory meaning ascribed to them, were questions of law for the court. After a consideration of these questions, both from the stand-point of the cause of action pleaded and the meaning of the words complained of, we have concluded that the court should not have submitted the ease to the jury on the hypothesis that the publication imputed to plaintiff the commission of a crime.
If a publication directly imputes crime it is libelous per se and in such case it is not necessary in the statement of a cause of action thereon to plead any extrinsic facts as inducement or to add an innuendo as to the defamatory meaning. On the other hand, if the publication is libelous per se as imputing crime, but extrinsic facts are necessary to bring out the defamatory meaning, then the law requires the allegation of such facts as inducement, in order that the actionable character of the words may appear. The publication complained of in this case belongs to the latter class, because it does not impute crime on its face. It was therefore necessary that the petition should state the facts showing the defamatory meaning and the crime imputed.
The only averment in the petition as to the libelous: character of the words, aside from the innuendo, is the
Where the defamatory meaning does not appear on the face of the article complained of, but depends upon extrinsic facts, it is not sufficient that such defamatory meaning be alleged in the innuendo only. The law upon this subject is stated in Townshend on Slander and Libel (4 Ed.), 566, 567, as follows: “An innuendo can not perform the office of an inducement;
For the foregoing reasons we think the petition failed to state a cause of action upon the ground that the alleged libel imputed crime to the plaintiff. We 'also hold that the words of the publication are not susceptible of the meaning that crime is imputed thereby to the plaintiff, as will appear from a discussion thereof further on in this opinion.
As defined by statute, a libel is “the malicious defamation of a person made public by any printing, writing, sign, picture, representation' or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious publication made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.” [Sec. 4818, R. S. 1909.]
It is contended by respondent that the publication is libelous per se within the meaning of the statute and without the aid of extrinsic facts to show its defamatory meaning. It is stated in the article that plaintiff held the office of Secretary of State and that for more than a year before the expiration of his term of office the Salmon Bank at Clinton was insolvent, and it asks why the hank was permitted to keep its doors open and receive the deposits of a confiding public. It also appears that Major Salmon, one of the owners of the hank, was the political friend of the plaintiff. That the bank’s books were examined just before plaintiff went out of office, but that no action was taken, and the bank was left open to take the money of unsuspecting depositors. The article concludes with the question, “Is the damaging derelict a part of the political junk of the old Democratic State Machine?” These words, when considered with their context and given their ordinary and natural meaning and understood as the reader would understand them, do not stop with the imputation of mere official neglect in failing to examine the bank. The statement of the friendly political relationship existing between plaintiff and one of the owners of the bank gives a sting and edge
The petition being sufficient, as we have held, the correctness of the court’s action in refusing the defendant’s instruction in the nature of a demurrer, depends upon whether, under all the evidence, plaintiff was entitled to have his case submitted to the jury. The substance of the evidence has been given in the statement of facts. Appellant maintains that the truth of every fact stated in the article was not only proved by the evidence, but that there was no evidence to the contrary. And, excepting the headline and concluding sentence, we think the truth of the article was fully established by the proof. It was shown by documentary evidence, on file in the plaintiff’s office during his entire term, that the Salmon Bank was in a most unsafe condition for about a year before plaintiff’s term of office began. Bank Examiner Oldham, who examined the bank in March of that year, said in his report: “I regard the condition of this bank as extremely critical — such as to cause the gravest appre
After the report of Oldham’s, examination in March, 1900, the Secretary of State, plaintiff’s predecessor, wrote a long letter to the bank, calling attention .to the many irregularities disclosed'by the examination. This letter sets forth twenty-nine large loans due the bauk, of which it is said. “Some of this paper, I am informed, is absolutely worthless, while the balance of it, where secured at all, is backed by securities that are very slow and inactive, and if they can ever be realized on it will require a long time to do it. . . . Some decided action must be taken concerning it, as further delay will eventually result in wrecking this bank. ’ ’
In June of that year a conference was held in Kansas City between the officers of the bank, the Secretary
The bank was again examined on December 5th-7th, 1900. In a letter of the Secretary of State to the bank, commenting on its condition, it is said: “I am pleased to say that it shows that you have made some headway in cleaning up the matters complained of at the last examination, but out of the twenty-nine loans that, were specially pointed out as needing immediate attention, you still have on hand twenty, and six of the twenty remain unchanged. . . . You publish to the world that you have $416,517 loans and discounts, undoubtedly good and clear of incumbrances, as one of the -guarantees for the safety of the deposits that you are daily receiving. That is not a correct statement, nor is it a fair statement to the public nor the other bankers in your section of the State.”
The first examination after plaintiff’s term began was in December, 1901, in the report of which it was stated that: “Personal loans aggregate $492,004.66; $100,000 of this paper is not desirable or bankable paper.” And further: “In regard to the loans about which requirements were made, there is very little change.” «
The next examination was made in December, 1902, and in the report of this examination attention was called, by red pencil marks, to the notes “long past due,” and further to the fact that $79,000 of the bank’s reserve consisted of the assets of the defunct State Bank of Clinton, which were considered of little value. A number of other irregularities in this report were also underscored in red pencil. It was shown that these marks were made to indicate to plaintiff that the
The evidence showed that plaintiff and Major Salmon, one of the owners of the bank, were close personal and political friends.
Assuming the truth of the facts stated in the article, it is contended by appellant that the concluding sentence, “Is the damaging derelict a part of the po
The .legal propositions invoked by appellant that a newspaper has the right fairly and honestly to comment upon a matter of public interest, and that the official conduct of a public officer is a matter of public interest, are well settled. [Branch v. Knapp & Co., 222 Mo. 580; 25 Cyc. 402; 18 Am. & Eng. Ency. Law (2 Ed.), 1041; Odgers on Libel and Slander (4 Ed.), 184.]
This brings us to a consideration of the question as to the actionable character of the last sentence of the article, namely: “Is the damaging derelict a part of the political junk of the old Democratic State Machine?” Is this language to be regarded as the statement of a fact and therefore libelous, if false, or as a comment and opinion based upon the facts previously stated and therefore non-libelous, upon the ground of the qualified privilege of all persons to criticize and .comment upon matters of public interest? These questions must be considered in the light of the context and the facts and circumstances as disclosed by the evidence. ’While the language of this interrogatory is unusual, because- of tbe figurative expressions employed, the meaning is neither obscure nor double. We attach little importance to the words “old Demogratic State Machine.” So far as they lend support to plaintiff’s cause of action and have reference to the subject of the article, the failure of the bank, they mean nothing more and serve no other purpose than to give point to the fact of the friendly political relations existing between plaintiff and the owners of the bank, a fact not only proved by the testimony, but admitted by the plaintiff on the witness stand. The words “dam
Under the facts in evidence it was the undoubted right of the defendant, and of all others, to discuss the failure of the bank and the official conduct of plaintiff in connection therewith. Was this right of comment restricted to a restatement of the naked facts, without drawing inferences or expressing opinions thereon, or did the right of comment mean the right to discuss the facts and place thereon the writer’s own construction, and to express his opinion of the motives which actuated the officer in his failure to examine and close the bank and protect the public, regardless of whether the opinion was right or wrong, provided it was based upon facts and was not malicious? The two facts that plaintiff and one of the owners of the bank were close political friends, and that this insolvent bank had not been examined for two years, during which time no other bank in the district had escaped examination, fully warranted the inference of that relationship as the cause of the plaintiff’s omission to examine this bank. Indeed, the comment suggesting the motive follows as the shadow of the imputation already cast by the facts pre
Discussing the question of the right to coxnment upon the official acts of a public officer, this court, in the case of Branch v. Knapp & Co., supra, l. c. 603, said: “The plaintiff was a public officer. The article related to his action as such, to-wit, his vote for United States Senator, and as such was subject to a fair criticism by the newspaper press. It is not libelous merely to point out a. seeming inconsistency in a public officer, and while our laws rigidly protect the private character of the citizen, the acts of a public officer are fairly open to criticism and comment.”
The subject has been recently considered in the case of Howarth v. Barlow, supra, and because of its applicability, both' in law and fact, to the case in hand, we feel justified in quoting therefrom at some length. It appeared that the plaintiff, a clerk of a board of village trustees, presented bills for audit, axnong which was a bill for material furnished by the claimant to the plaintiff personally. The matter being taken up by
“It is enough to say that the plaintiff was in the wrong, either by design or official'negligence, in presenting the claim to the trustees, and that it was the right of the defendant to show the matter to the president of the village, or to any citizen, and discuss it fully, and call in question whether the plaintiff had an honest intent in including a false item in the claim. And he was by no means obliged to take the plaintiff’s word for it, or that of the claimant.
“The plaintiff’s whole official conduct in the matter was open to the fullest' criticism, and the defendant and all other persons had the right to draw from it and express any opinions or inferences that could be drawn from it, although contrary, and it may be, more reasonable ones could be drawn from it. That such opinions or inferences are far-fetched, high strung or severely moral, or contrary to other opinions or inferences that seem more reasonable, does not matter so long as there be a basis for them in the acts or words of the person who is the subject of such criticism. The majority or prevailing opinion is not the test of whether such opinion or inference be permissible. The prevailing or majority opinion is often the wrong one, and for that reason the law gives full latitude to the expression of any and all opinions on things of general*356 concern. It does not matter that the opinions or inferences expressed are not the most charitable or reasonable ones, or that they are the wrong ones, provided they be based on the facts, and the facts are capable of them. This is the rule of latitude of discussion and criticism of'the conduct of every one who holds a public office, or writes a book, or does any act by which he invites public, attention and criticism. [McDonald v. Sun Printing and Pub. Assn., 45 Misc. Rep. 441.]
“The people are not obliged to speak of the conduct of their officials in whispers or with bated breath in a free government, but only in a despotism. On the contrary, they have a right to speak out in open discussion and criticism thereof, the only test being that they make no false statement. And this is the great safeguard of free government and of pure government. This is fundamental among us. The defendant made no false statement, and had the right to question the intent of the plaintiff from his concededly unlawful act, and the ease with which it could be made the means of spoliating the public funds. The plaintiff’s act was susceptible of an inference of wrong intent.”
In the case of the United States v. Smith, 173 Fed. 240, a case in which the defendants were sued for an alleged libel in charging fraud in the purchase by certain parties representing’ the United States Government, of the rights of a French company in the Panama Canal property, the court, in the course of the opinion, said: “It is the duty of a public newspaper, such as is owned and conducted by these defendants, to tell the people, its subscribers, its readers, the facts that it may find out about public questions, or matters of public interest and it is its duty and its right to draw inferences from the facts known — draw them for the people. ’ ’
In the exercise of the right of criticism in matters of public interest it necessarily results that public officers will not always be placed before the people in
Whether the plaintiff in failing to enforce the law against the Salmon Bank, was or was not actuated by the motives imputed in the article complained of, we are satisfied that such an inference and comment was fully warranted by the facts and circumstances in evidence, and as the facts upon which the comment was made were true, the publication was not defamatory under the law of libel but was priviliged as a criticism and comment upon a matter of public interest.
In the conlusion arrived at we have not overlooked the principle of law that comment and criticism, to be privileged, must be fair and honest and not malicious, and that whether it is fair arid honest is a question for the jury. While that is the law, the burden is on the plaintiff to prove that a comment is unfair and dishonest, and if there is no evidence on which a rational verdict could be found on the basis that the comment is malicious, as we hold in this case, the case should not be submitted to the jury.
Our conclusion, after a thorough consideration of this case, is that the court erred in failing to give an
Rehearing
ON MOTION FOR REHEARING.
— Because of the insistence of distinguished counsel for respondent as to the correctness of their contention, we have deemed it proper to review the more important points urged in support of the motion for a rehearing.
The publication complained of consisted of two parts: alleged facts, and comments thereon. Both the facts and the comment relate to the official acts of a public officer. That fact is disclosed by plaintiff’s petition. One of the defenses was that the article, being a fair comment upon a matter of public interest, was protected by a qualified privilege and therefore was not actionable. Another defense was that of justification by alleging the truth of the facts published.
At the close of all the evidence the defendant asked the court to give an instruction directing a verdict for the defendant. The opinion filed herein holds that the plaintiff had not made out a prima facie case, and that the court erred in refusing said instruction.
In the motion for a rehearing and brief, respondent complains that the opinion is at variance with the law of libel, for the reason that if the article is libelous on its face, as the opinion holds, '.then the law presumes malice and falsity and, the publication being" admitted, the evidence of the defendant could at most raise but an issue of fact for the jury, and not a question of law for the court. This complaint is sound as to the defense of justification, but it is unsound as to the defense of privilege.
There is much contrariety of opinion in the decisions as to whether the plaintiff or defendant must bear the burden of proof upon the issue of the truth or falsity of the facts commented upon and upon the issue of malice, where the defense of qualified privilege of comment upon a matter of public interest is made, as in the case in hand. To attempt to reconcile the decisions would be an impossible task. The law applicable in case of the defense of privileged communication, a defense closely allied to that of privileged comment, is that the onus of proving both express malice and falsity rests upon the plaintiff. [Edwards v. Chandler, 14 Mich. 475; Konkle v. Haven, 140 Mich. 472; Trimble v. Morrish, 152 Mich. 624; Fowles v. Bowen, 30 N. Y. 20; Ashcroft v. Hammond, 197 N. Y. 488; Peterson v. Steenerson, 113 Minn. 87.]
In some jurisdictions the foregoing rule has been applied generally to the defense of qualified privilege, without distinction as to whether the privilege is invoked in a case of a privileged communication or a privileged comment upon a matter of public interest. This rule is adopted in the following cases: Cornelius v. Cornelius, 233 Mo. 1; Gattis v. Kilgo, 128 N. C. 402; Briggs v. Garrett, 111 Pa. St. 404; Cherry v. Des Moines Leader, 114 Iowa, 298; Coleman v. MacLennan, 78 Kan. 711.
In the case of Gattis v. Kilgo, supra, l. c. 406, the court said: “And his honor correctly instructed the jury that the publication being admitted and being a qualifiedly privileged one, it was incumbent on the plaintiff to prove by the greater weight of evidence, not only that the publication was false, but that it was also malicious.”
Other authorities hold that the burden of proving-actual malice in case of a defense of privileged comment, rests upon the plaintiff, but that proof of such malice alone destroys the privilege. [Gott v. Pulsifer, 122 Mass. 235; Cranfill v. Hayden, 97 Tex. 544; Atwater v. Morning News, 67 Conn. 504; Tawney v. Simonson, 109 Minn. 341; Press Co. v. Stewart, 119 Pa. St. 584; Crane v. Waters, 10 Fed. 619; Newell on Slander and Libel (2 Ed.), p. 566; 25 Cyc. 402.]
In Gott v. Pulsifer, supra, l. c. 238, the court said: “The editor of a newspaper has the right, if not the duty, of publishing, for the information of the public, .fair and reasonable comment, however severe its terms, upon anything- which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications, for which no action can be maintained without proof of actual malice.”
In Cranfill v. Hayden, supra, l. c. 562 and 564, in discussing the rule applicable to qualifiedly privileged publications generally, the court said: “When the
On the other hand the doctrine is supported by the highest authority that if facts are stated in the publication upon which the comment is based, and such facts are false, then the defense of privileged comment fails. [Burt v. Advertiser Newspaper Co., 154 Mass. 238; Dunneback v. Tribune Printing Co., 108 Mich. 75; Vance v. Louisville Courier Journal Co., 95 Ky. 41; Evening Post v. Richardson, 113 Ky. 641; Farley v. McBride, 74 Neb. 49; Sweeney v. Baker, 13 W. Va. 158; Belknap v. Ball, 83 Mich. 583; Eikhoff v. Gilbert, 124 Mich. 353; Hubbard v. Allyn, 200 Mass. 166; Post Pub. Co. v. Hallam, 59 Fed. 530; Newell on Slander & Libel (2 Ed.), p. 568; Odgers on Libel & Slander (4 Ed.), p. 187, et seq.; Folkard on Slander and Libel, pp. 140 and 148; 25 Cyc. 401, et seq.; 18 Am. & Eng. Ency Law (3 Ed.), 1021.]
In Newell, supra, p. 568, discussing the law of qualified privilege of comment, the rule is laid down that: “If the facts as a comment upon which the publication is sought to be excused do not exist, the foundation fails.”
In Burt v. Advertiser Newspaper Co., supra, l. c.,
In Dunneback v. Tribune Printing Co., supra, l. c., 77, the court said: “Plaintiff was a candidate for a very responsible and important public office. Newspapers had the right to state, for the guidance of electors, any facts which affected his fitness for that office. The newspapers in such cases are not responsible for the inferences to be drawn from such facts. The law of libel requires in these cases that newspapers in their statements of fact observe an honest regard for the truth, aud, when they have done so, they are not responsible.”
It will be noted that under the rule of the authorities last cited the defense of privileged comment fails upon proof of the falsity of the facts alone, and it is not necessary that the plaintiff should prove in addition thereto that the publication was inspired by actual malice, as in the case of a defense of privileged communication. It should be observed further that under all the rules stated, proof of the falsity of the facts and
"We think there is good reason for recognizing the distinction thus made between the law applicable to the defense of privileged communications and that of privileged comment, making the privilege broader in the former than in the latter. In the former the communication is usually made under' a sense of duty and to one person or a limited number of persons. The privilege of comment, on the other hand, while of the highest importance to the public welfare, is not made under a sense of duty, but is purely voluntary, and when the' unlimited extent of the publication and the consequent injury to the complainant is considered, it would, in our opinion, be a most dangerous doctrine to require the plaintiff, in order to make a prima, facie case, to prove not only that the facts were false, but also that the defendant was actuated by express malice.
"We, think the rule to be deduced from the authorities and in accord with the better reason, is that when a defense of privileged comment on a matter of public interest is presented by the issues, the plaintiff may overcome the privilege pleaded either by proof that the publication was inspired by actual malice, or that the facts published and commented upon were false. If he fail to prove the one or the other a prima facie case will not be made out, and the court, upon the request of the defendant, should give an instruction in the nature of a demurrer to the evidence. These two grounds of attack upon the privilege pleaded are available to the plaintiff in all cases, for in publications commenting upon matters of public interest, facts are always present, stated either expressly or by necessary implication.
Coming to the facts of the case in hand, we find that there was no substantial evidence of actual malice. The plaintiff was relying upon the legal presumption of malice, as in the case of a defense of justification. Therefore the privilege was not removed, as it would
One alleged fact is referred to in the brief of respondent on the motion for a rehearing, for the first time, which deserves notice. The article complained of stated: “The bank’s books were examined just before Ex-Secretary of State Cook went out of office, but no action was taken and the bank was left open to take the money of unsuspecting depositors.” Respondent now contends as to that part of the article that: “It is necessarily implied therefrom that plaintiff so kept the bank open until June, 1905, whereas the fact is, undisputed in the evidence, that plaintiff went out of office as Secretary of State on January 9, 1905',” etc.. Respondent’s complaint is untenable fo.r the reason that whether we treat such alleged fact as bearing- upon the defense of justification or privilege, the language is not susceptible of the construction that plaintiff was responsible for keeping the bank open after he went out of office, and the evidence was uncontradicted that it did remain open so long as plaintiff remained in office.
After a full reconsideration of this case, we find the motion for rehearing to be without substantial merit, and it is therefore overruled.