72 Ark. 421 | Ark. | 1904
(after stating the facts). This is an action for libel, brought by John Patton against C. E. Cruce to recover damages on account of certain publications made by defendant, and which the plaintiff alleges were libelous. The defense set up by defendant against this action of the plaintiff was that the publications complained of were made in response to publications against him made by defendant, that the publications by plaintiff were made necessary by the attacks of the defendant, and went no further than was required in order to make a full and fair reply to those publications.
The presiding judge, in his charge to the jury, gave a very satisfactory and clear statement of the law of the case to the jury, with the exception of one instruction, which he gave at request of defendant. That instruction was as follows: “If the plaintiff and defendant voluntarily engaged in a newspaper controversy, and lavished slanderous imputations upon each other, and both were equally at fault, neither of them can claim damage from the other, and your verdict should be for the defendant.” The evidence shows that these parties did engage in a newspaper controversy, and, taking all the evidence in reference to that controversy that we have before us, we do not see that the defendant was more culpable than plaintiff himself. If the law was as stated in the above instruction, it would therefore be our duty, as well as our pleasure, to affirm the judgment;, for, if one libel could be set off against another, we do not think that plaintiff would be entitled to anything in this action. But one libel cannot be set off against another independent libel. Yet, under the instruction quoted, the jury may have found that each of these parties were guilty of separate and independent libels against each other, and that, being equally to blame, neither could maintain an action therefor against the other. We are therefore of the opinion that this instruction was incorrect and misleading. Brewer v. Chase, 121 Mich. 526, s. c. 46 L. R. A. 397.
If one’s good name and character is assailed in a newspaper, he may, of course, reply, and defend himself, and if his reply is made in good faith, without malice, and is not unnecesarily defamatory of his assailant, the reply will be privileged. 18 Am. & Eng. Enc. Law, 1033.
And even if, in the heat of passion, he should go beyond what a full and fair reply required, and published a separate and independent libel against his opponent, the jury, in estimating the damages, may take into consideration the previous libel committed against him and the provocation under which he labored, and, if they find that plaintiff himself was greatly to blame, the}'- may if they deem proper, allow him only nominal damages. In other words, in determining the amount of damages to which the plaintiff is entitled for a libel, it is proper to take into consideration the circumstances under which the libel was committed, and whether plaintiff was himself to blame for the controversy. Kelly v. Sherlock, L. R. 1 Queen’s Bench Cases, 686.
The plaintiff had, as before stated, six counts in his complaint, and he asked the court to instruct the jury that each of the counts except the sixth “describes and sets up a libel, and is libelous per se, and that the verdict should be for the plaintiff.” Now, the words set out in some of the counts, we think, were libelous per se. For instance, the second count alleges that by the language therein set out the defendant intended and did accuse plaintiff of being a secret slanderer and scandal monger, with betraying his friends, and telling lodge secrets. This, if proved, was clearly libelous per se. But the instruction requested stated that each of the counts except the sixth sets up language that was libelous per se, and in this form we think was properly refused, for, while this may be true of some of the counts, it is not, we think, true of all.
' Again, most of these publications of which plaintiff complains seem to have been directly called forth by publications on his part in which he attempted to ridicule and make sport of the defendant. Some of these replies made by defendant were, it seems to us, very mild retorts when the provocation under which they were made is considered. Plaintiff must have known that his shots at the defendant would provoke a return fire. In fact, he stated on the stand that some of these articles were written for that purpose. “I meant,” he said, “for Cruce to come back at me.” This being so, we do not see that he has much right to complain because Cruce did come back at him. Plonors in that respect were so nearly even between them that we see very little reason why either should recover damages from the other. While, therefore, we feel considerable doubt as to whether the plaintiff is entitled, under the proof, to any substantial damages, yet for the error referred to the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.
