delivered the opinion of the Court.
This is an action by petition, for a libel, brought by Robert R. Brown, plaintiff, against Peter Duncan and six others, defendants. The alleged libel, as stated in the first count, is as follows: “Mr. Taylor
“We, the undersigned, do hereby certify that we have known Robert R. Brown from his boyhood to the present, and we know that he has been an enemy to the Rev. Peter Duncan, both before and since he, (the said Duncan,) left the Methodist Episcopal Church, and we believe that he Brown,.(meaning the plaintiff,) would put his name to anything that Z. M. Taylor would request him to sign that would prejudice the said Duncan’s character.” Signed with the names of six persons who are named as defendants with Duncan.
The second and third counts set forth only the certificate and signatures above referred to. But each count avers a joint publication by all, and also contains numerous inuendos. And as in our opinion the matter stated, with the allegation that it was false, and its publication malicious, is prima facie libelous, and sufficient to sustain an action, the demurrer of the defendants was properly overruled. There seems indeed to have been no necessity for the second and third counts, and as every thing essential is or might have been contained in the first count, the second and third, though éach containing prima facie a cause of
The answer proceeds to say: “Thus the plaintiff became a witness giving a certificate to said Taylor intended to be published and it was published and used by said Taylor to disparage and degrade the defendant, Peter Duncan.” On the appearance of said publication the defendant, Ducan, felt himself under the necessity of making a defense, and therefore
The two published letters-of Taylor <and Duncan, referred to in the answer, are copied at large in the record as exhibits; and on this state of the pleadings the parties went to trial. The defendants adduced evidence without objection, in proof of the particular charges appended to their answer,' with respect to which the plaintiff adduced opposing testimony, and many witnesses were examined-by both parties with' respectto the character of plaintiff,the greater number-speaking favorably, and some of them decidedly, of' his good character and conduct. There was some testimony to the effect that before the date of the conversation stated in the certificate signed by the plain
The jury, under instructions presently to be noticed, found a verdict in favor of the plaintiff for $350. The motion of the defendants for a new trial was overruled, and a judgment rendered against them, which they seek to reverse, on the ground, mainly, that the court erred in overruling their demurrer to the petition, and also in giving and refusing instructions.
"We have already said that the petition on its face showed, prima facie, a good cause of action. The matter published was apparently calculated to degrade the plaintiff, and to bring him into disrepute. It was therefore libelous in its character, and unless published upon a justifiable occasion, and without express malice, it was, if untrue, a sufficient cause of action. It is alleged to have been false, and to have been published with malice; and if the occasion was justifiable, the petition does not state the occasion, but leaves it to conjecture. This must have been the conclusion, if the case had stood here upon the petition and demurrer alone. But, after the demurrer was overruled, the defendants filed their answer as a defense upon the facts, and a trial having been had upon the evidence, and a verdict found against them, the petition does not now stand upon demurrer, but can only now be impugned for such errors as might
The bill of exceptions does not show that the entire publications referred to in the answer as being over the respective signatures of Z. M. Taylor and ffie defendant, Duncan, were in evidence before the jury. The mere reference to them as a part of the answer did not make them evidence, and they might, notwithstanding such reference, have been4objected to, and would have been rejected unless proved. Although therefore they are copied in the record as papers referred to in the„answer, they cannot be regarded as a part of the evidence before the jury. There is, perhaps, sufficient evidence to authorize the assumption that the certificate copied in the answer as the certificate of Brown, (the plaintiff,) detailing a conversation between Duncan and Taylor, was signed by Brown at the request and for the use of Taylor; and we assume, for the present, that the introductory observations also copied in the answer, showing that the certificate was intended, and supposed to prove an acknowledgment on the part of Duncan, that he was then responsible or amenable to the tribunals of the M. E. Church, and that it was in fact used for that purpose by Taylor, formed a part of the case before the jury, or at least a part of the case upon which the court was to declare the law in aid of the jury in their decision of the case.
But even, the facts thus assumed, although they might require from Duncan a denial and disproof of the alleged acknowledgment, if he had not made it, or might justify the suggestion of Brown’s youth and
But although the law would not justify the publication of a libelous charge under the circumstances stated, it pays some regard to the passions and infirmities of men, and to that higher principle which impels a man to vindicate his own character and fame, and which excites and inflames him when his good name is assailed; and, therefore, circumstances of provocation which are insufficient to justify, may yet, by weakening the inference of malice, palliate the publication of a slander or libel, and may operate to mitigate the damages to be recovered for it. And in the present case, if in a virulent controversy between Taylor and Duncan, Brown became a voluntary witness for Taylor, to prove a fact on which the opprobrious remarks set forth in the answer were founded, the imputations made upon the character of the witness in repelling the assault in which he had aided, though carried farther than was justifiable, was in some degree palliated by the circumstances, which tend to show that the attack upon the witness was induced not so much by malice towards him, as by a desire on the part of Duncan to vindicate himself, and by that excitement under a charge deemed opprobrious and degrading, which naturally confounded with the principal assailant, one who was regarded
It is not sufficient, as supposed in the first instruction asked for by the defendants, “that from the plaintiff’s character and particular instances of bad conduct, they should have believed that he would state a falsehood for the purpose of injuring one whom he hated or disliked.” To authorize a verdict in their favor on the ground of their belief, there should at least have been reasonable grounds for it in facts proved before the jury, and believed by them. This instruction was properly refused. But the third instruction moved for by the defendants was abstractly right, and as its refusal may have prejudiced the case of the defendants before the jury, we think it should have been given in the form in which it was asked, or in some other. The court was asked to tell the jury that if they should find damages, they should not be estimated upon consideration of any injury to the Methodist Church, its ministers or members, which was refused. Such an instruction, though abstractly correct, might well be refused in ordinary cases. But it is evident this case is connected with, and grew out of, a controversy in the M. E. Church, and, indeed, that it relates to a seism, produced, or, at least,- attempted to be effected by Duncan, in which there seems to have been consider
The first and second instructions given by the court are liable to the objection that in stating to the jury the question to be decided by them in order to determine the case one way or the other, they are told, in effect, that their decision is to depend upon the question whether from the evidence before them they believe that the plaintiff was or that he was not “so corrupt and depraved that he would sign anything Z. Taylor would request him to sign to injure Duncan’s character.” It would have been better, and certainly more appropriate, to put to the jury the simple question arising on the face of the libel itself, whether they believed that the plaintiff would have signed anything which Z. Taylor would request him to sign that would prejudice Duncan’s character. The instruction puts the harshest construction and the strongest coloring .upon the libel, which not only does not, in terms, charge the plaintiff with corruption and depravity, but which might be found true, without necessarily imputing to him either of these grades of turpitude. Bjr way of illustration, we may refer to a portion of the published letter referred to in the answer of the defendants, as being over the signature of Mr. Taylor, in which,
It is to be observed, further, with respect to the terms and import of the libel, that it does not say, in sweeping terms, that Brown would sign anything that would injure Duncan’s character, but that he would sign whatever Z. M. Taylor would request, that would prejudice Duncan’s character. Can it be assumed that tile signers of this libel meant to say, or should be understood as intimating, either that Taylor would request, or that Brown would, merely on his request, give his signature to a statement charging that Duncan had been guilty of murder or other heinous crimes against the laws? Such an assumption would probably be unjust to all the parties referred to. And it would seem to be reasonable that in order to get at the true sense of the writing now in question, it should be construed with a view — 1. To the general circumstances under which it was written, viz: in the midst of a warm ecclesiastical controversy. 2. To the particular circumstance which called it forth, viz: that Brown had given a certificate with respect to a fact involved in the controversy, and prejudicing the character and cause of Duncan in the controversy, and used with that effect and for that purpose by Taylor. And, 3. That it was in reference to this particular statement of the certificate, and the purpose for which it was furnished and used, that the libelous writing was made and published. Whence it might be fairly assumed that the writers meant only to charge that Brown would, at the request of Taylor, sign anything with respect to a fact involved in the pending controversy or concerning it, and which might
Under the mildest interpretation which can be given to the published matter which is complained of in this action, we are .of opinion that it imputes to the plaintiff a willingness to sign any statement touching the pending controversy which Taylor might request, and which would prejudice Duncan and his cause ; and that such an imputation, if untrue, is libelous and prima facie the proper ground of an action. And, although an individual assailed in the public prints may of course resort to the same medium for repelling the assault, and may publish certificates against certificates, and although considerable latitude may be allowed both to himself and his friends who may aid in his vindication, neither he nor they can occupy the attitude nor claim the immunities of party and witnesses in a court of justice. But they must conduct the defense or the assault with due regard to the
Upon the whole case, we think the court should have instructed the jury as to the different senses or interpretations of which the libel was susceptible, leaving them to determine under all the circumstances in which of these senses it was uttered and intended to be understood; and should have told them that if true in the sense adopted by them as its true meaning, upon which question the truth or untruth of Brown’s certificate might have a bearing, they should find for the defendants, but if false in that sense, they should find for the plaintiff such damages as, in view of the injury done to his character and feelings, and of the degree of malice indicated by the nature of the charge, and the circumstances under which it was made, seemed to them just and proper.
The case as now presented does not require any further explanation than has already been given of the circumstances which would or would not constitute a justifiable occasion for the publication complained of.. We have already said that if the libelous matter be untrue, the facts stated in the answer do not justify it.
The opinions of the Circuit Court, in giving and refusing instructions, being inconsistent with the principles of this opinion, the judgment is therefore reversed, and the cause remanded for a new trial.