Cooper v. Greeley

1 Denio 347 | Court for the Trial of Impeachments and Correction of Errors | 1845

By the Court,- Jewett, J.

The first question presented is whether the first count of the declaration is good in substance. If not, it follows that the pleas interposed to that count need not be examined for the purpose of giving judgment on the demurrer; the rule being that where the count is so defective that a verdict will not cure it, the defendant on demurrer to his plea may fall back upon the count. (Miller v. Maxwell, 16 Wend. 9.) The defendants contend that the publication set forth in this count is not libellous. For the plaintiff it is insisted that it contains a charge that he was in bad repute in the county of Otsego, in consequence of being known in that county; and that on that account he would not like to bring a libel suit to trial there. The inquiry is, how is this publication to be understood 7 It is the duty'of the court, in an action for a libel, to understand the publication in the same man-. ner as others would naturally do. “ The construction which it behoves a court of justice to put on a publication which is alleged to be libellous is to be derived as well from the expressions used as from the whole scope and apparent object of the writer.” (Spencer v. Southwick, 11 John. R. 592, per Van Buren, Senator; see also Fidler v. Delavan, 20 Wend. 57.) It seems to me that the inuendo affixes the true meaning to the words. It may be admitted that the charge is not made in an open and direct manner. It seems to be ironical. But an imputation conveyed in that form is not the less actionable. The sting of the words in this case is in the imputation which it is alleged they convey, that the plaintiff had acquired so odious a reputation in Otsego county that, knowing enough of the influence of human action justly to apprehend danger to himself for that cause upon such a trial there, he would not dare to risk a trial in that county. Assuming this to be the true meaning of the publication, the inquiry follows—whether such language with such meaning and application is'libellous within the rules of law applicable o the action for libel. The counsel for the defendants, although they did not admit on the argument that even such language could be considered libellous within their understanding of' what they denominated the modern definition of libel, yet undertook to show by argument and authority that at the period when the late Chancellor Kent, and Chief Justice Spencer, and their associates, held seats in this court, the rule in regard to what published words amounted to a libel was, more than forty years ago, greatly and unjustly extended. The definition of a libel submitted arguendo by the late General Hamilton, and adopted by the court in The People v. Croswell (3 John. Cas. 354) and subsequently approved of by the court in Steele v. Southwick, (9 John R. 215,) is complained of as erroneous. The court in the case last cited said that “a writing published maliciously with a view to expose a person to contempt and ridicule is undoubtedly actionable; and what was said to this effect by the judges of the C. B. in Villers v. Monsley (2 Wils. 403) is founded in law, justice and sound policy. The opinion of the court in the case of Riggs v. Denniston (3 John. Cas. 205) was to the same effect; and the definition of a libel as given by Mr. Hamilton in the case of The People v. Croswell (3 John. Cas. 354) is drawn with the utmost precision. It is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent towards government, magistrates, or individuals. To allow the press to be the vehicle of malicious ridicule of private character, would soon deprave the. moral taste of the community, and render the state of society miserable and barbarous.” In the case of Cropp v. Tilney, (3 Salk. 226,) Holt Ch. J. said, “scandalous matter is not necessary to make a libel. It is enough if the defendant induces an ill opinion to be held of the plaintiff, or to make him contemptible, or ridiculous.” Any written slander, though merely tending to render the party subject to disgrace, ridicule, or contempt,- is actionable, though it do not impute any definite crime punishable in the temporal courts. (3 Bl. Comm., Chitty's ed. 123, note 5.)

But it is argued that the publication in question is not libellous, even admitting the definition of libel adopted by this court in The People v. Croswell and in Steele v. Southwick. It is denied that it is a censorious or a ridiculing writing: and although it is conceded that it reflects upon the plaintiff, it is' said that it does not do so in a severe or censorious manner; • and that it does not convey any sentiment of ridicule. The admission that the publication reflects upon the plaintiff, though qualified by the remark that it does not do so severely, yields the material point in controversy. The degree of censure or ridicule does not enter into the definition. “A censorious or ridiculing writing towards an individual” is defined to be a libel, “ if made with a mischievous and malicious intent.” “ Censoriousness” is defined.by Webster to be a “ disposition to blame and condemn—the habit of censuring or reproaching.” He defines the word “reflect,” in his fifth subdivision, thus: “ to bring reproach ; to reflect on; to cast censure or reproach.” It would seem to me that if a censorious writing made with a mischievous and malicious intent towards an individual is libellous, a writing made with a like intent reflecting upon an individual, whether more or less severely, would be none the less libellous. But I do not think that the rule requires any such aid. It is enough that we approve of the rule as settled, acted upon and undeviatingly adhered to by this court for about forty years. The objection that the inuendo is not justified by the language of the publication is one which can only be reached by special demurrer. The office of an inuendo is to apply the libel to the precedent matter; and it cannot be used to add to, enlarge, extend or change the sense of the previous words; and where the new matter stated in the inuendo is not necessary to support the action, it may be rejected as surplusage. (1 Chit. Pl., Day's ed. 382; 2 Dane's Ab. 596; Thomas v. Crosioell, 7 John. R. 270; Roberts v. Camden, 9 East, 93.) An inuendo may explain the meaning of words, though it cannot enlarge it without the aid of a colloquium ; and a leading case on this point is where, in an action for slander, the words were, “He has burnt my barn,” and it was held that the plaintiff could not say by way of inuendo, “my barn full of corn.” But if the introduction to the count in that case had contained an averment that the defendant had a bam full of com, and that in a discourse about it he spoke the words—then an inuendo stating the meaning of the words to be “ a barn full of corn” would have been good. In such a case the inuendo would explain and apply the preceding parts of the declaration, by showing that the defendant’s words were uttered in a conversation about a bam of the defendant’s which was full of corn. In Van Vechten v. Hopkins, (5 John. R. 220,) Van Ness, J. explains the meaning of an averment, of a colloquium and of an inuendo. An averment is to ascertain to the court that which is doubtfully expressed, and to add matter to make doubtful things clear. A colloquium shows that the words were spoken in relation to the matter of the averment, and an inuendo is explanatory of the subject matter sufficiently expressed before. The colloquium in this count was for the purpose of showing that the libel was published, as it is expressly alleged to have been, “of and concerning the plaintiif.” An inuendo is an averment that such a one means such a particular person, or that such a thing means such a particular thing; and with the introductory matter it forms a connected proposition by which the cognizance of the charge will be submitted to the jury, and the cause of action appear to the court. The inuendo in this case, which states the meaning of the publication to be that the plaintiff, in consequence of being known in the county of Otsego, was in bad repute there, and would not for that reason like to bring a suit for a libel in that county, appears to me to express the true meaning of the publication. The question whether the alleged libel was published of and concerning the plaintiff, and whether the true meaning of the words is such as is alleged in the inuendo or not, is a question of fact which belongs to the jury and not to the court to■ determine. (Van Vechten v. Hopkins, 5 John. R. 221; Goodrich v. Woolcot, 3 Cowen, 231; Peake v. Oldham, Cowp. 275; 2 Bl. R. 961; Dexter v. Taber, 12 John. R. 239.) ■ It is well settled that where the slanderous charge may be collected from the words themselves or from the general scope of the publication, it is not necessary to make any averment as to circumstances to the supposed existence of which the words refer.. So where the libellous meaning is apparent on the face of the declaration, inuendoes and averments are unnecessary; but if introduced and not warranted by the subject matter, they may be rejected as surplusage. (Croswell v. Weed, 25 Wend. 621.) The proposition of the defendants’ counsel, that to render a publication actionable it must impute a crime, cannot be sustained. This rule has never been extended to libels in this state, nor has it been in England for the last one hundred and fifty years. The first action for a libel found in our books of reports is that of Riggs v. Denniston, before cited, which was decided in 1802. The late Chancellor, (then Mr. Justice Kent,) in delivering the opinion of this court, observed that the charges against the plaintiff were clearly libellous, because they threw contumely and contempt upon him in his character as a commissioner of bankruptcy—instead of holding them actionable as subjecting the plaintiff to the loss of his office. And such has been the doctrine of this court from that time to the present. In Van Ness v. Hamilton, before.cited, Chief Justice Spencer said: “ It may however be observed in the outset, that there exists a decided distinction between words spoken, and written slander. To maintain an action for the former cause, the words must either have produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offence involving moral turpitude. To maintain an action for a libel, it is not necessary that an indictable offence should be imputed to the plaintiff. If a libel holds a party up to public scorn, contempt and ridicule, it is- actionable.” It is insisted by the defendants’ counsel, that in the early'stages of the law of libel, there was no distinction between written and verbal slander, and that no action could then have been maintained for any words written for which an action could not be maintained if they were spoken. The case of Thorley v. Lord Kerry, (4 Taunt. 355,) decided in the exchequer chamber in 1812, is, among other cases, relied on to sustain that position. That was an action for a libel charging the plaintiff with being a hypocrite, and with having used the cloak of religion for unworthy purposes. The plaintiff obtained a verdict and had judgment in the king’s bench without argument, which was affirmed in the exchequer chamber upon error brought by the defendant. Sir J. Mansfield, C. J. in delivering the opinion of the court, stated that the words, had they merely been spoken, would not have been actionable; and while he disapproved of the distinction which he admitted had prevailed for more than a century past between written and spoken scandal, he said that as the rule and distinction had been so firmly established by some of the greatest names known to the law, and from a time at least as far back as the time of Charles the second, he could not venture to lay down at that day that no action could be maintained for any words written for which an action could not be maintained if they were spoken. The rule is repeated in Starkie on Slander, 1 vol. by Wendell, p. 169. After a review of all the cases on the subject, this writer says: “Upon the whole it may be collected that any writings, pictures or signs, which derogate from the character of an individual, by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts by exposing him to disgrace and ridicule, are actionable without proof of special damage; in short, that an action lies for any false, malicious and personal imputation effected by such means and tending to alter the party’s situation in society for the worse.” The rule is the same and the like distinction prevails in Massachusetts. (Clark v. Binney, 2 Pick. 113.) Assuming that at an early period of the law, before the art of printing was invented or perfected, the distinction between words spoken and written slander was not recognized, the change may, I apprehend, be accounted for by the greater necessity for such a distinction in more modern times, when the tendency of the public press is so strong to licentiousness. It does not appear to me that individual character is more than adequately protected by the legal remedies, civil- and criminal, which the law, as it has been established for the last century and an half, both in England and in this country, affords. If this court were competent to repudiate a distinction so well settled as that between written and spoken scandal, public policy would, in ray opinion, interpose to prevent it.

Assuming then that the count is good in substance, the next inquiry is whether the first special plea to that count interposes a substantial defence and is well pleaded. For the plaintiff it is insisted that the charge of bad reputation can only be justified by facts showing such reputation deserved. Such a charge, it is said, implies in its popular acceptation that the party has done something to bring him into disrepute. The plea, it is alleged, is bad for being as general as the charge, and for the omission to state any facts which, if proved, would make good the charge. The plea sets up as a justification that the plaintiff had the reputation in Otsego county of a proud, captious, censorious, arbitrary, dogmatical, malicious, illiberal, revengeful and litigious man—and that therefore .he was in bad repute. No facts of conduct of the plaintiff to show that such reputation was deserved are set forth in the plea. If the charge had been that the plaintiff had the reputation of having committed a particular crime, no one I presume would insist that a plea simply setting up the existence of such a reputation would be good. In such a case it would be indispensable to set forth the necessary tacts showing the plaintiff to be guilty of' the crime of which it was said he had acquired the reputation. By any other cule the reputation of any man, however pure, might- be successfully assailed and effectually destroyed by a combination of malicious individuals. -The general rule is thus perspicuously stated at length by Spencer, Oh. J. in Van Ness v. Hamilton, before referred to. “ A plea in bar of the plaintiff’s action must be certain to a common intent. It must be direct and positive in the facts set forth, and "must state them with all necessary certainty- It is not correct to say that in a plea justifying a libel, because the subject comprehends multiplicity of matter, there may be general pleading to avoid prolixity.” And again : “ The rule to which I allude is laid down in the case of J'Anson v. Stuart, (1 T. R. 748.) There the action was for a libel charging the plaintiff with being connected and concerned with a gang of swindlers and common informers. The plea stated that the plaintiff had been dishonestly concerned and connected with and was one of a gang of swindlers and common informers, and had also been guilty of defrauding divers persons with whom he had dealings and transactions. On demurrer to this plea it was decided that it was bad on account of its generality; that it was contrary to every rule of pleading to charge the plaintiff with swindling without showing any instances of it: ior wherever one person charges another with fraud, he must know the particular instances on which his charge is founded, and therefore ought to disclose them.” In this case the charge is not of any act committed by the plaintiff or the reputation of the commission of any particular act improper, immoral, criminal or otherwise ; but only that in the estimation of the public in the county named, the plaintiff’s reputation is bad : in other words, that his good name, credit or honor, as derived from public opinion, was to a greater or less extent forfeited or bad; that such was the public estimation at the time of the publication in question. This charge implies no particular act committed by the plaintiff. The defendants justify by averring the existence of the bad reputation, specifying in this plea the particular odious qualities which the plaintiff was reputed to possess, and averring that on that account he did not like to try his cause in that county. I think the plea is sufficient. I do not see in •what other manner a justification could be interposed. In the nature of things, it would be impracticable for the defendants to spread upon paper the particular manifestations of pride, captious ness, malice, &c. which go to form such a character, and to prove that his public reputation was the consequence of such conduct. Reputation is the estimate in which an individual is held by public fame in the place where he is known. And the existence of a good or bad reputation is, I think, a fact which may be directly put in issue.

The other special plea to the first count is in substance the same with the one just examined. It differs from that, in omitting to mention the particular traits of character specified in the first special plea: and it simply alleges.the plaintiff’s residence in Otsego county, his being known to divers citizens there, and his having acquired a bad reputation among them. Though more general than the first special plea, I do not see but that it is sufficient. The plaintiff is not charged with doing any act or omitting to do any act by which he is liable to a particular charge affecting him in his character in any manner; and of course the rule requiring the plea to set forth the particular acts of the plaintiff constituting the particular thing charged, is not applicable to this defence. The libel merely represents the estimate which the public place upon the plaintiff’s general character. That is a fact not capable generally of being charged upon, or traced, as the result of any particular or general character of the party. It is public opinion. It may exist without any just foundation; but whether justly or unjustly formed, the grounds of it are manifestly incapable of being put in issue. I do not therefore think that a party is called on to set forth and prove the grounds of such public estimate of reputation; and still less is he bound to show that such public estimation was correctly made. Where the plaintiff is charged with a reputation of having committed some particular offence, or with the neglect of some duty, the rule, as has been shown, is different: and there the defendant can only justify by establishing the truth of the reputation; that is, that the plaintiff’has been guilty of the precise offence referred to in the charge. The allegation and proof of reputation will not in such a case avail theaccuser.

The principles discussed and the conclusions arrived at upon the examination of the first count equally apply to the questions arising under the second count, and I am of opinion that that count is good in substance.

The remaining question therefore, is whether the several pleas to that count are well pleaded, and furnish a justification. Each of these several pleas professes to answer a distinct and -separate portion of the libellous matter set forth in the count; and each plea taken by itself leaves other portions of the libellous matter unanswered. On the part of the plaintiff it is insisted that every plea in bar must answer the whole declaration, or count, to which it is pleaded, even although the charge against the defendant be severable in its nature; and that within this principle, each of the several pleas to this count is bad. This objection to the pleas is unanswerable and must prevail. (Root v. Woodruff, 6 Hill, 421, and cases there cited.) “ It is well settled here,” to use the language of Mr. Justice Bronson in that case, “ that every plea in bar must not only contain a good answer so far as it professes to go; but it must answer the whole declaration or count to which it is pleaded. If the whole be not answered, the plaintiff may demur, and the action will not be thereby discontinued; but the plaintiff will be entitled to judgment.”

The plaintiff is entitled to judgment upon the demurrer to the several pleas to the second count, and the defendants to judgment upon the demurrer to the pleas pleaded to the first count, with leave to each party to amend on the usual terms.

Judgment accordingly.