No. 11,651 | La. | Apr 8, 1895
The opinion of the court was delivered by
The plaintiff, the proprietor of a barber shop in this city, claims of the defendants twenty-five thousand dollars for damages sustained by him in consequence of a libel published by the defendants.
The facts are that the Mayor deemed it proper to address a communication to the chairman of the committee on charitable institutions (a standing committee of the Oity Oouncil), calling attention to the rumored mismanagement of the Leper Hospital, and suggesting that his committee, with the committee on public health, should investigate and find out if there was any truth in the rumors circulated and the newspaper articles published on the subject.
A meeting of the committee on charitable institutions was publicly held in compliance with the Mayor’s suggestion.
. There was a reporter of the defendant present whose duty it was to attend the meetings of the council and of the committees, and report their proceedings for publication.
The physician with whom the city had contracted for the mainten- ■ anee and treatment of persons afflicted with leprosy was also present; although not regularly summoned, he had been notified of the proposed investigation. A letter sent to the committee by this physician was read, in which he characterized as calumnious the reports circulated about the management of the hospital in his charge.
He supplemented the contents of his letter by verbal' statements of difficulties surrounding him, because his contract with the city had expired; he said that persons afflicted with leprosy were roaming about the streets at will. He mentioned a barber who had been employed in a shop on Oustomhouse street between Bourbon and Royal streets, whose name was Meteye. There was another leper, he said, employed at a store, the name and locality of which was given; also two girls afflicted with the disease at a designated rice mill, and he had heard of another leper going into a saloon and taking his lunches with a number of other persons.
Although the physician was not under oath and examined as a witness, the names and the information were given by him in answer to questions propounded by the committee.
After adjournment the committee repaired to the Leper Hospital for the purpose of examining into its affairs and management.
The secretary kept a brief record of the proceedings, showing by what authority the committee was called together and in general terms the purpose for which it had convened.
The reporter made a complete and accurate statement, “a true report” of all the actual proceedings of the committee. It was published by the defendant company, with the heading “The Lepers”- and head-lines:
“ De. Beard Testifies Bbfobe a Council Committee.”
“ He Invites a Pull Investigation of His Hospital.”
“ He Says He Has No Contbact With the City,” etc.
The plaintiff, Meteye, complained to the manager of the newspaper, who stated to him that the publication was privileged, but that an explanation would be published, as there was no intention to injure him.
The evidence discloses that instructions were given by the manager to publish a statement, and that by inadvertence it was not published.
About a month later the defendant published an editorial headed: “ A National Leprosy Hospital,” commenting upon the harmful effect of rumors of leprosy in Louisiana.
The writer of the editorial quoted freely from an article in the New York Sun. Prom that quotation we extract the following:
“ A year ago the people of New Orleans indulged in a short scare over the information that quite a number of lépers were at large in the city and State, working at various trades, one even plying the vocation of barber.”
Previous to the second publication a demand had been made of defendant, and had been referred to counsel for the defendant.
The judge of the District Court held that the publication was privileged, and rejected plaintiff’s demands. Prom the judgment the plaintiff prosecutes this appeal.
IF NOT PRIVILEGED AN EXPLANATION WOULD ONLY HAVE MITIGATED THE DAMAGES.
The testimony informs us that it was owing to the neglect or oversight of one of the employés that the correction promised was not published.
This would have been only an act of justice to the plaintiff; the fact, however, remains that if the first publication was not
Plaintiff’s complaint upon this point is somewhat, if not entirely, neutralized by bis counter contention that the publication was not privileged.
In short, however unfortunate the failure to make the publication of the promised correction, the injury would not have been condoned by an attempted reparation. With or without attempted correction, if not privileged, damages are due.
CONDITIONALLY PRIVILEGED.
From the foregoing it follows that the only question for our determination is whether or not the publication was a privileged publication to the extent of precluding any presumption of malice.
Legislative proceedings are privileged.
“Every fair and accurate report of any proceeding in either House of Parliament, or in any committee thereof, is privileged, even though it contained matter defamatory of an individual.” Odgers on Libel and Slander, 257.
Mr. Cooley, in his valuable work on Torts, par. 214, says: “ It is customary in American institutions to declare this exemption from responsibility in positive terms, but it exists independent of such a declaration as a necessary principle in free government.” It exists without statute. Under this principle the privilege would protect a member of a Louisiana Legislature, even without the present constitutional enactment upon the subject; as it protected as privileged the proceedings of a congressional committee years ago. Terry vs. Fellows, 21 An. 375.
Municipal corporations are endowed with subordinate legislative functions, and it follows that under guarded limitations, “ the members of their council are sufficiently protected for whatever is said by them which is pertinent to any inquiry, or investigation pending or proposed before them.”
They are, however, “accountable when they wander from the subject in hand to assail others.” Cooley ubi supra.
From the text of Newell on Slander and Libel, p. 542, we extract:
Report of the proceedings and transactions of the State legisla
By our own court it was decided that the proceeding of a. town council may be reported under the protection of privileged publication.” Wallis vs. Bazet, 34 An. 131.
The Oity Oouncil has authority to appoint committees for the public advantage.
Proceedings looking to the preservation of public health are not foreign to the duties of the council or one of its committees, and the proceedings of the latter are as much entitled to protection as the council itself, particularly as the inquiry was regarding the mismanagement of the Leper Hospital, and into charges that persons afflicted with leprosy were roaming at will. The defendants are, at least, one remove from the utterer of the alleged slander, and published his statement as part of the proceedings of the committee.
The physician was under contract with and received pay for his services from the city; the investigation of his case was a proper subject of inquiry and gave to the proceedings a public character.
THE HEADING- OE THE REPORT DID NOT ENDORSE THE UTTERER’S STATEMENT.
The “ heading ” of the publication of which plaintiff complains, “Lepers,” characterized the proceedings and directed attention to the subject matter of the investigation. ' It was not directed against the plaintiff, and added nothing to the proceedings; it did not, as it was used, give evidence or authenticity to the statement itself.
In distributing the meaning of the word at the head of the column it applies alike to all that was done, and can not be made to bear against the plaintiff as being, in the'opinion of the publisher, afflicted with leprosy. It was a “heading” pertinent to the report.
THE SECOND PUBLICATION.
We have no dissent to express from the principle announced by text writers, and sustained by authority, that thejsecond publication of a libel, as evidence of malice, will enhance the damages. Merrill on Newspaper Libel, 257.
Here the publication was not of the same matter a second time. It was not a repetition of the libel. The last publication, about one month after the first, does not relate to the first. The word “bar
PUBLICITY NOT GREATER THAN THE OCCASION REQUIRED.
The proceedings, as the evidence shows, were regarding a matter in which the whole public was interested, and conducted with open doors in accordance with usage; the report could not be limited to a locality nor to certain persons. As it was a matter relative to public health, and “ privileged,” it was not proof of malice to publish the proceedings. The limit upheld by Townshend in his work on slander as applying to a candidate for election to an office, and the case of. State vs. Bienvenu, 36 An. 378, in which a church congregation was concerned, are without application in a large city when there are rumors of a dreaded disease.
It is clearly shown that no one in plaintiff’s shop was afflicted with the dreaded disease.
The press is not without its shadows.
It is fortunate that its great force can have but temporary effect against conduct and services however humble; against the energy of good conscience and the just pride of having nothing to reproach oneself.
The authorities have classed publications of legislative bodies under a qualified privilege.
We deem it proper to adhere to the principle and to affirm the judgment.
Judgment affirmed.