141 P. 289 | Mont. | 1914
delivered the opinion of the court.
Action for libel. Appeal from a judgment on order of non-suit. The complaint alleges that on December 10, 1912, the defendant, as editor, proprietor and manager of the “Western News,” a newspaper of general circulation in Ravalli county, Montana, did publish of and concerning the plaintiff, a member of the board of county commissioners of said county, the following false and malicious defamation, to-wit:
“Just prior to adjournment the commissioners entered into another contract — with the Hamilton Publishing Company, publisher of the ‘Ravalli Republican,’ to do and perform the county printing for another period of two years, beginning Jan. 6, 1913, and ending Jan. 6, 1915, at its own price. No bids were called for in this instance, the practice of years being reversed. Knowledge of this transaction involving the letting of this $8,000 contract leaked out quite accidentally. Always heretofore the custom has been to call for bids for the county printing, the largest contract at the disposal of the board. Not so this trip.
“Graft the Motive?
“Behind the revolutionary action of the commissioners, who allowed all other contracts to the lowest bidder after advertising for bids, there appears a very evident motive. It is clear that the 'commissioners did not desire to let the contract to the lowest bidder, and, fearing a comparison of figures, they arbitrarily awarded the contract without calling for bids, acting secretly in an effort to conceal their action. The interests of the taxpayers, the people who pay the county’s printing bills, were never taken into account.
“Why the commissioners should lay themselves open to criticism and condemnation in this way is quite clear. The reason the commissioners did not call for bids, and did not care to save the county money, is that they desired the printing contract to
“It is obvious that this printing contract includes a graft of not less than $2,000 per year. Any person may determine this by mating a little investigation. Who gets this $2,000 a year? Is it cut up between Messrs. Cooper, Treese and Tillman, or do these gentlemen, merely as an evidence of good nature, permit it to slip through their fingers into the coffers of the mysterious Hamilton Publishing Company?”
It is further alleged, by way of innuendo, that the “commissioners” above mentioned means the board of county commissioners of Ravalli county; that the adjournment referred to is the adjournment of said board on December 7, 1912; that ‘‘ county printing’ ’ means the official printing for Ravalli county; that “Cooper” means the appellant, and “that by the use of the word ‘graft’ in said publication the defendant intended to convey, and did convey, to the readers of the said ‘Western News,’ that the plaintiff in his capacity as a member of the board of county commissioners of Ravalli county, Montana, was guilty of a dishonest transaction in relation to a public or official act, which false and malicious defamation tends, and did then and there tend, to impeach the honesty, integrity, and reputation of the said plaintiff, county commissioner as aforesaid, thereby exposing him to hatred, contempt, and ridicule, to his damage in the sum of ten thousand dollars ($10,000.00).”
The answer admits the publication of the article quoted, pleads that it is true, that the publication was without malice, was a fair and true report of the proceedings of a public meeting of the board of county commissioners of Ravalli county held
The reply puts in issue all the affirmative allegations of the answer.
Upon the trial the only evidence produced was to the effect that the plaintiff was at the time of the publication, and still is, a duly elected, qualified and acting member of the board of county commissioners of Ravalli county, and that on December 31, 1912, there appeared in the “"Western News” a certain article, the publication of which is claimed to be evidence of malice.
From the grounds of the motion for nonsuit, as well as from certain concessions made by counsel for plaintiff in the argument of the motion, which concessions the trial court caused to be set forth in the bill of exceptions, we assume that the order was made upon the theory that the publication was not libelous per se, and therefore plea and proof of special damages were necessary, or else that the complaint shows the publication to have been prima facie privileged, and thus to require more evirence of malice and falsity than was presented. We are, however,
1. To determine whether the matter complained of was of the character commonly denominated actionable per se, we need not go beyond fundamental principles as asserted and maintained
In determining whether a publication is libelous per se, the
The offensiveness of the publication in question is specifically alleged to consist in the use of the word “graft.” As ordinarily
2. We say, “if false and unprivileged,” for that is the language of the statute. No publication which is not false is a
If it be true that, as a constituent of libel, malice has no place, it is equally true that to found liability upon a communication prima facie privileged, actual and not implied malice must be shown. Such was the rule at common law (Coleman v. MacLennon, 78 Kan. 711, 130 Am. St. Rep. 390, 20 L. R. A. (n. s.) 361, 98 Pac. 281; Press Co. v. Stewart, 119 Pa. 584, 14 Atl. 51; Myers v. Longstaff, 14 S. D. 98, 84 N. W. 233; Bacon v. Michigan Cent. Ry. Co., 55 Mich. 224, 54 Am. Rep. 372, 21 N. W. 324; Smith v. Youmans, 3 Hill (S. C.), 85; Hart v. Rush, 1 B. Mon. (Ky.) 166, 35 Am. Dec. 179; Gray v. Pentland, 4 Serg. & R. (Pa.) 420), and such must necessarily be the rule under our statute, unless we reduce it to a tautological absurdity.
Since, however, the privilege conferred by subdivisions 3 and 4 of section 3604 does not exist if the publication be malicious,
In the early stages of development of the law of libel, truth or falsity was of importance only as bearing upon the question of malice. As the outgrowth of judicial antipathy to the rapidly increasing importance of truth as a defense, resort was had to the doctrine that all defamatory matter is prima facie false. The task of finding reasons for any product or process of growth is always a thankless one; but the very few authorities which attempt it, so far as the doctrine last mentioned is concerned, ascribe its existence to the presumption that every person is guiltless of crime or wrong. Why this presumption should not have availed to protect the publisher, as well as the person offended, is nowhere elucidated. The plaintiff in a libel suit is doubtless presumed innocent of whatever wrong a publication imputes to him, and the publisher is likewise presumed to be innocent of wrong in making the publication. (See. 7962, Rev. Codes.) A presumption is a form of indirect evidence (sec. 7956), and it is valid and effective only until controverted by other evidence, direct or indirect (see. 7960). So far as presumptions are concerned, the evidence is at equipoise at the very outset of the case. The scales can be made to dip in plaintiff’s favor only by the presentation on his part of further evidence. This is but the application to all cases of libel of the generally accepted rule that, where the communication appears to have been privileged, the plaintiff must show, not only actual malice, but falsity in the publication (Ashcroft v. Hammond, 197 N. Y. 488, 90 N. E. 1117; Edwards v. Chandler, 14 Mich. 471, 90 Am. Dec. 249; Briggs v. Garrett, 111 Pa. 404, 56 Am. Rep. 274, 2 Atl. 513; McIntyre v. McBean, 13 U. C. Q. B. 534), and we see no special hardship in it.
■ In the view expressed, it becomes unnecessary to ascertain whether the publication in question was privileged, and if so, whether the article of December 31, 1912, was sufficient proof of malice. As the duty devolved upon plaintiff to present some evi
Affirmed.