31 Mont. 195 | Mont. | 1904
Lead Opinion
sitting in place of Mr. Justice Holeowat, delivered the opinion of the court.
This is an action to recover damages for libel. A trial of the cause in the c.ourt below resulted in a verdict for the defendant. Plaintiff moved for a new trial, which was denied, and from the judgment and the order overruling said motion the plaintiff appeals.
1. The court did not err in overruling the demurrer to the answer. It is proper to suggest at this time that the first count of the complaint states a cause of action. The article, as set forth in this count, is as follows:
“As to Paxton’s popularity as a teacher it can be illustrated by the fact that out of forty-five children in the district but four or five were attending when the superintendent visited the school last week. This is the only school Paxton has taught in the county, and for the good of the schools, I hope it will be the last one. He taught one term in Jefferson, and one in Madison county, and they want no more of him. The statements in the Chronicle are known to be false here. We knew that Paxton was a man of many attainments, but did not know that he was a common liar before. As he has gone to the Crow reservation now he has probably found his level.”
Whatever may be said of other portions of the foregoing article, to publish, by a written charge, of an individual, that he is
But returning to the question presented by the demurrer, in the construction of language regard is to be had to the words employed, and the meaning which, under all the circumstances of their publication, may be presumed to have- been - conveyed to those to whom the publication is made. While the written charge, “We knew that Paxton was a man of many attainments, but did not know that he was a common liar before,” is in its nature, libelous per se, and needs no colloquium or innuendo to illustrate its application or meaning, and the vice imputed to plaintiff by the words standing alone is unqualified, and as broad as language can make it, yet, if the defamatory language is connected with other language which limits or affects its meaning, or might tend to mitigate the damage, its construction must be in relation to such other language, and in arriving at the sense in which the language is employed it is proper to consider the cause and circumstances of its publication and the entire language used. It is apparent on its face that the publication in question was a part of an article published in response, in part at least, to certain statements contained in the Chronicle. The matter set forth in the answer, upon which defendant relies for .justification, is the history of a controversy which continued for some time between the plaintiff and the defendant, and the publication in question was a part of one of the articles constituting this controversy. The defendant alleges that the charge above referred to, implying a. want of veracity in plaintiff, was limited in its meaning and application to certain statements previously published in the Bozeman Chronicle at the instance of plaintiff, and not otherwise, and that such statements were
2. At the trial defendant objected to the introduction of any evidence as to plaintiff’s second cause of action upon the ground that the publication was not libelous per se, and that no special damages were alleged. The objection was sustained, and plaintiff excepted. Plaintiff’s second cause of action is based upon the publication of August 24, 1901, heretofore referred to. The allegations are, in substance, that plaintiff is a school teacher, following that profession; that the article referred to was of and concerning him in his profession, occupation and business as such school teacher, and referred to his application for the position as teacher in the public school at Willow Creek, Gallatin county; that the said publication was false, malicious and unprivileged, and tended to and did injure him in his profession and occupation as a school teacher, to his damage in the sum of $5,000. The article is set forth in the complaint, and is as follows:
“There were a number of applicants for the school, among them being the noted Paxton, who has done more damage and less good than any teacher we have ever had. This district knows when it has had enough, so it turned the gentleman down. A Miss Evans has been offered the position of teacher and we hope soon to have a good school running.”
In this count of the complaint there is no colloquium, other than as stated above. There is no innuendo at all, and no allegation of special damages. The only damage claimed is that
In Harris v. Zanone, 93 Cal. 65, 28 Pac. 845, in construing a similar statute, the supreme court says: “If the words used are not libelous in themselves, or if they have some occult meaning or local signification, and require proof to determine their meaning or to show that they are libelous, or if they are words in a foreign language, it is necessary to make such allegation of their meaning as will show them to be actionable, and by averment ffo ascertain that to the court which is generally or doubtfully expressed.’ Van Vechten v. Hopkins, 5 Johns. 220, 4 Am. Dec. 339. The statute dispenses with them (that is, the colloquium and innuendo) only so far as they show that the defamatory words applied to the plaintiff, and goes no further. The averments necessary in common-law pleading to show the meaning ,of the words must still be made” — citing authorities.
AVhen the words are unequivocal in their import, and obviously defamatory, it is not necessary to employ colloquium or innuendo to explain their application and meaning; but if the words be of doubtful significance, or derive their libelous character not from their own intrinsic force, but from extraneous facts, it is necessary to allege the meaning intended, or set forth such extraneous facts by proper averments. (13 Ency. Plead, and Prac. p. 33, and cases cited.) To say of a school teacher
3. Plaintiff called defendant as a witness, and offered to prove by him that since the publication constituting the basis of the first cause of action defendant had tried to have revoked the certificate of plaintiff as a school teacher, to which offer objection was made and sustained, and plaintiff excepted. Other witnesses were cálled by plaintiff, by whom he offered to prove that defendant had stated to them, after the institution of this action, that he would take away the plaintiff’s certificate, or words to that effect; to all of which objection was made and sustained, and plaintiff excepted. Plaintiff’s assignments with
Libel is defined by Section 32 of the Civil Code of Montana as follows: “Libel is a false and unprivileged publication in writing, printing, picture, effigy or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Under this statute the existence of malice is not a necessary ingredient to entitle the plaintiff to recover such sum as will fairly compensate him for the injury sustained. It would present no obstacle to such recovery that the defendant, acting in good faith, had probable cause for belief, and at the time did believe the charge to be true, and was absolutely free from malice.
Two classes of damages may be recovered in actions for libel, to-wit, actual damages and exemplary damages. The presence or absence of malice becomes material only as a circumstance affording a basis for increasing or diminishing the amount of recovery, and in cases involving the defense of privileged publication. The right to recover being shown, and the presence of malice wanting, compensatory damages can only be awarded; but, join to such right of recovery the element of malice, and exemplary damages may be added to the actual or compensatory damages. Malice is an inference of fact which the jury may draw from the libelous publication alone. (Samuels v. Evening Mail Ass’n, 75 N. Y. 604; Warner v. Press Pub. Co., 132 N. Y. 181, 30 N. E. 393; Clements v. Maloney, 55 Mo. 352; Schmisseur v. Kreilich, 92 Ill. 348; Evening News Association v. Tryon, 42 Mich. 549, 4 N. W. 267, 36 Am. Rep. 450.)
The plaintiff may, if he elect to do so, rely solely upon the libelous character of the publication to show malice, but he is not limited to it. He may also call to his aid and make use of any extrinsic facts which tend to show the presence of malice. It is impossible to look into the mind, and interpret the motives
The’plaintiff should have been permitted to show the making by defendant of threats, if.any, to secure the cancellation of his certificate entitling him to teach in the public schools.
4. In assignments of error Nos. 18, 19, 20 and 21 appellant complains of the action of the court in overruling plaintiff’s objection to certain questions asked defendant with respect to his motives in using certain language in the articles alleged to be libelous, and in permitting him to explain certain statements therein, and whether certain statements made by him were true, and as to the source of his information with respect to the trutli of certain statements. These were some of the facts involved
5. Error is assigned for the refusal of the court to give certain instructions proposed by the plaintiff. In the instructions which were given to the jury, the court incorporated the substance of those offered by plaintiff, and it was not error to refuse to adopt those submitted by plaintiff. (Territory v. Pendry, 9 Mont. 67, 22 Pac. 760; State v. Mahoney, 24 Mont. 281, 61 Pac. 647.)
6. Appellant complains of certain instructions given by the court, to-wit, Nos. 1, 10, 12 and 13. Instruction No. 1 is confined to a statement of the issues of the ease. While the jury may be permitted to take with them to the jury room the pleadings in the case, and, if they desire, study the issues for themselves, the practice of setting forth in the instructions a clear and concise statement of the nature of the case and the issues to be determined is to be commended, and the instruction is not objectionable. Instruction No. 10 informed the jury that plaintiff was claiming damages for injury to him in his profession of school teacher, and not as an individual, and in determining whether or not he had been damaged they should consider only such facts and circumstances as tended to show injury to him in the capacity of school teacher, and that they could not consider any facts and circumstances that tended to show injury to him as an individual. There is no suggestion anywhere in the complaint that plaintiff was damaged in his capacity as an individual, but the averments of the complaint are that the injury was to plaintiff in respect to his profession. The action was thus confined, by the terms of the complaint, to such - damages as plaintiff might have sustained in his profession, and the court properly excluded from the jury all consideration of damage to plaintiff as an individual.
7. Instruction No. 13 contains nothing of which plaintiff can complain under the evidence as disclosed by the record.
8. A more serious question is presented by instruction No. 12. It reads as follows: “You are instructed that plaintiff’s
Kef erring to this subject, Mr. Sutherland says: “There is no legal measure of damages for such a wrong. The amount which the injured party ought to recover is referred to the sound discretion of the jury. * * * When the publication is actionable per se, the legal presumption of damage goes6to the jury, and they, in view of the particular circumstances of the case, are required, in the exercise of their judgment, to determine what sum will afford reparation.” ( 3 Sutherland on Damages, 643-647.)
To recognize the doctrine embodied in instruction 12 as correct law in its application to an action to recover general damage would operate, in effect, to destroy the legal presumption-above referred to of presumed injury inherent in per se defamatory charges. It would create a means of defense in actions of this character never contemplated by any principle of law. As pertinently suggested by counsel for appellant, all that a defendant would have to do would be to publish two libels against a party, and then introduce proof to show that he was damaged by both, and plaintiff could recover in neither. It is not an answer to this to say an action could be based upon both. A plaintiff may elect to unite several causes for injuries to character (Code of Civil Procedure, Sec. 672, Subd. 5), but he is not required to do so. Again, the defendant might publish a libelous article, and procure one of similar import to be published by another, and the same result would follow. Such a principle, if it were allowed to control in cases of this character, would seriously jeopardize the interest of a plaintiff whenever he exercised the valuable and unquestionable right to show other defamatory charges for the purpose of proving malice. The case of Ward v. Dick, 47 Conn. 300, 36 Am. Rep. 57, and others cited by counsel for respondent in support of the correctness of the instruction under consideration, are not in point. They, in effect, decide that other libels or slanders than the one sued
Counsel for respondent argues that, the Constitution having clothed the jury, in suits and prosecutions for libel, with power to determine the law and the facts, and in this case the jury having found a verdict against the plaintiff, it "becomes immaterial how erroneous the- instructions of the court may be; that no error can be remedied by appeal, because the instructions are merely advisory, and may be disregarded by the .jury in the exercise of this power to determine the law and the facts. The history of this provision shows it is the outgrowth of an act of the English parliament, adopted in 1192, and known as the “Eox Libel Act.” Its enactment, in modified forms, into the Constitutions of many of the States of the Union has followed, some of them limiting its operation to criminal prosecutions for libel, while others extend it to civil actions for libel as well; in some is omitted the clause “under the direction of the court,” in others it is incorporated, as has been done in the Constitution of this state. (Cooley’s Constitutional Limitations, pp. 160, 463.) This provision has received the earnest consideration of the courts of last resort of many of the states, and there exists great contrariety of opinion as to the extent of power conferred upon the jury, independently of the court, to determine the law and the facts and judge of the whole case. A review of the cases relating to this subject can serve no useful purpose here, as the questions whether the jury is required to accept the in
The duty of the court to instruct the jury being recognized, it follows as a corollary that a correct declaration of the legal principles involved should .be given to the jury, otherwise the requirement to instruct would be a needless formality, barren of all useful purpose.
There are other assignments which have been examined but there is no merit in them. Because of the errors referred to, the judgment and order are reversed, and the cause remanded for a new trial.
Reversed and remanded.
Concurrence Opinion
: I concur in the conclusion and in what is said in the opinion, except as to so much thereof as states or implies that, to say of a school teacher that he has done more damage and less good than any teacher the district ever had “cannot be said to impeach him in any of those qualities which are essentials of an accomplished school teacher, and to falsely assail which it is slanderous or libelous per seR
