Moore v. Stevenson, 27 Conn. 14

Moore v. Stevenson

27 Conn. 14 | Conn. | 1858

Ellsworth, J.

The first question made in the case is upon the ruling of the court, that' the testimony of Henry Baker was inadmissible. The parties were at issue upon the question of fact, whether at the time of bringing suit the plaintiff was abandoned by' her husband, so that by virtue of the statute of 1853 she could sue alone as a feme sole. It seems that on the trial the plaintiff insisted that the abandonment had been continued after the service of the writ down to the time of trial; the materiality of which fact is *25not so readily seen, except possibly in its bearing upon the question whether at the time the suit was commenced she had been really abandoned by her husband or he was merely absent. The defendant insisted that the plaintiff had not been abandoned; that although her husband left her in February, 1855, and had ever since continued absent, it was a separation for good cause; that she had so conducted as to excuse and justify her husband in leaving her society and his home. Whether there was good cause for his leaving her is unimportant as we view the case. The true question is as to the state of the fact,—was she abandoned, either with or without cause, within the true meaning of the word “ abandoned ” as used in the statute and as explained by the court in the charge to the jury; that is, in the language of the court below, “ had the husband voluntarily left the wife with an intention to forsake her entirely and never to return to her and never to resume his marital duties toward her or to claim his marital rights.” If he had, it obviously could avail nothing to prove that there was a sufficient cause for it, such as the adultery of the wife, or the like. Indeed, proving that there was cause for abandonment seems to prove that the absence of the husband' was, rather than that it was not, an abandonment in fact.

But if the object was to show what was the character of the husband’s absence, that it was separation or absence merely, and not abandonment, then we think the testimony was properly ruled out, because it had no tendency to prove the fact for which it was offered; its tendency was to prove the reverse if anything, for it proves only that the plaintiff was married to Baker in the winter following the separation, which certainly does not tend to prove that her husband had not abandoned her. Her marrying another man tends to prove rather that he had abandoned her. Besides, it does not appear that Moore knew of this second marriage, nor that he was where he could have heard of it or have been influenced by it to continue his absence. He went to California in February, 1855, and has not been heard of since, as the motion shows. Unaccompanied with other proof there is *26not the least evidence that the second marriage was the cause of his remaining absent from his former home ; if it had! been the cause, some little evidence of the fact could have been produced on the trial.

The next objection is, that the judge omitted to charge the jury what constitutes an abandonment within the meaning of the law. We think this is not so. He did charge them, as we conceive, fully and correctly on the point.

Nor is there any force in the further objection, that the special damage alleged in the writ as arising from the dismissal of the plaintiff from the service of Mr. Winchester, is not sufficiently traced to the libel published in the Bridgeport Standard to be submitted to the consideration of the jury. There is reason to believe that some one had shown Mr. Winchester this paper, or read it to him, if indeed he did not take it himself. Besides, this objection comes with a very bad grace from the defendant, who did not hesitate to make use of this newspaper to give publicity to the charge against the plaintiff. The libel having been made public in this manner by the defendant, the jury had a right to presume that this very paper was seen and read by Mr. Winchester, especially asno attempt was made by the defendant, either on cross-examination or otherwise, to show that -the libel had appeared in any other paper.

But, if we may believe that the defendant’s counsel are serious in their claims, a more important question remains to be considered, which is as to the proper import and effect of this statute of 1855. It evidently introduces into our courts a novel if not a singular principle of the law of libel, novel here and novel elsewhere, so far as we are acquainted with the books; and we are now called upon to give it its proper construction.

Its language is “ that in every action for an alleged libel, the defendant may give proof of intention; and unless the plaintiff shall prove malice in fact, he shall recover nothing but his actual damage proved and specially alleged in the declaration.” The defendant claims that the statute is to be so construed as to justify any and every publication, whether *27in a newspaper, letter, circular, advertisement or other writing, however false and generally injurious, if the author or writer believes what he says, and the plaintiff can not prove actual malice as distinguished from legal malice, (i. e., such malice as is inferred from the libel being untrue,)—or, in other words, unless the plaintiff' can prove personal pique, ill will and hatred on the part of the defendant towards the plaintiff. To this broad claim we can not give our assent. It would introduce into our courts a doctrine too broad and licentious for that protection of and indemnity to character which is guarantied by the principles of the social compact and the constitution itself. It does not at all harmonize with the general law which secures to every man hiq, good name and fame against the shafts of the credulous, the incautious, the mercenary or the cunning, however the plea of ignorance and innocence may be urged to the contrary, as well as against the malicious and unscrupulous defamer and libeler. By the constitution, “ all courts are to be open to grant redress for every injury to the person, property, or reputation, without denial or delay; ” and further, “ every citizen may freely write and publish his sentiments, being responsible for the abuse of that liberty.” It is not possible that the legislature has said by the statute of 1855, that we are hereafter to hold our good names, (more important than our estates,) at the caprice or credulity of other people, or on the mere belief of any one who through prejudice is blind to the truth or through rivalry in business is jealous and inimical and ready to take up an evil report against us. Besides, where there really is no such belief, how can it be made out by proof against the positive oath of the libeler himself? If such is to become the law of libels, if belief is to be enough to excuse the aggressor, we are about to introduce a new era into this branch of the law,—one, we must think, that wasnever contemplated by the legislature, and one that is characterized by a violation both of the common right of every citizen to the protection of his good name, and of the provisions of the constitution with regard to libels.

Our opinion is that the law was designed to protect hon*28est and careful newspaper editors; but its language does not confine it to them ; it embraces every species of writing that is published. Now, as to such editors, while it is true they were liable to be sued for publishing of any one what was false, though done -without malice in fact, they were not practically great sufferers thereby, for, if really honest and careful, they bad it in their power to shield themselves from any great injury; whereas, if belief is a sure immunity for whatever is published, a much wider door is opened for the infliction of injury upon the other party. But the law is passed, and so far as it is constitutional, though incautiously worded, we must be governed by it, and this we mean to be in adopting the construction put upon it by the court below.

As we have intimated, the law of libel was well enough as it stood before, and since it. is a subject of peculiar difficulty and delicacy for legislation, it should be let alone, unless the evil suffered is very great, and that evil is susceptible of a certain and equitable remedy. Hitherto the constitution and the law have wisely left every man to publish freely his sentiments, being responsible for what is false and injurious.

We have said we approve of the views expressed by the court below upon the true meaning of the statute. In the charge it is said that' a false publication is not of course libellous, as it was before the statute, except in certain privileged communications, but that there must be evidence'that the person making an untrue publication is actuated by improper and unjustifiable motives, and that this view will satisfy the words of the statute without there being malignity, spite, or hatred towards the particular person injured. The court held that the jury must be satisfied that the publication was induced by improper and unjustifiable motives, and that this fact might be proved by any proper evidence, direct or circumstantial, such as threats or other language indicative of ill will or an intent or desire to injure, or by. conduct evincive of similar feelings or motives, as if the publication was at the time known to be false, or made without authority, or such authority as would be regarded *29as entitled to credence among upright and careful men, or manifesting an entire indifference whether the. charge is true or false and whether the plaintiff is injured or not, or by a neglect to repair the injury by contradicting the publication when it is discovered to be false, and especially after a request to do it. These and the like circumstances will, with most juries, tend to prove those unjustifiable and wicked motives which we think will satisfy the intention and the enactment of the legislature. This construction of the law will protect honest and careful editors of newspapers in publishing or republishing advertisements put forth to caution the public against the depredations of a reputed thief, or the annunciation of a great crime reported by those in the neighborhood who have means of knowledge or which has received general credence throughout the community. So much may be necessary and perhaps politic and wise, considering that newspapers are looked to as the channels for communicating general and important information; but even here we may demand from an editor, whether he be himself the author, or only opens his columns to others, that he exercise the care and vigilance of a prudent and conscientious man wielding the power of the public press. Nothing will be gained by too much relaxation of the law of libel. Substantially this may be said to have been our law hitherto, for the truth has always been held to be a good defense, and common rumor or circumstances evincive of the truth of the libel operate upon the damages by showing that the plaintiff had no character to lose, or that there is no malice in a public organ giving greater publicity to what is already in circulation and generally believed or for which there are strong and convincing circumstances to induce an honest belief.

The present case falls very far short of this, and we can not doubt that the defendant, who, let it be remembered, is not the editor of the paper in which the libel appeared, was influenced by improper motives in making an unwarranted attack on the character of the plaintiff. He used the press to inflict upon her good name and fame a lasting injury, and *30took no pains afterwards to correct the mistake, if such it was, or to counteract the effects of it. It is not pretended that the charge was true, and some portion of it the defendant knew was absolutely false, and yet he gave it wings to pursue her wherever she went, and it can not be doubted this publication caused her the loss of her business and inflicted upon her a very serious and permanent injury. The defendant well knew that he had no process against her, that he had not arrested her for stealing, and never sent her back to New Haven to be tried for theft; nor was there any theft committed so far as appears. Besides, the defendant has no excuse for giving any such publicity to the matter. He is not an editor, and was not called upon to keep the public informed of such occurrences. It is more than possible that the jury believed that he used the press to administer to his vanity, by advertising his dexterity and sagacity in detecting and arresting offenders, to increase his patronage and profits in the discharge of official business^ or for the purpose of ministering to a vitiated public appetite for scandal. If it be so, and such conduct could be justified and successfully defended under the law of 1855, that law would be a reproach to the statute book so long as it remained on its pages, and would reflect no credit on the wisdom of the legislature that made it.

We do not advise a new trial.

In this opinion the other judges concurred.

New trial not advised.