53 Tenn. 369 | Tenn. | 1871
delivered the opinion of the court.
The defendants, Rolfe S. Saunders and Isaac S. Clark, were, on the 4th of September, 1870, the proprietors and publishers of a newspaper in the city of Knoxville, called the “ Sunday Whig and Register.” At that time a litigation was pending in the Chancery Court at Knoxville, in which John Baxter, the plaintiff in this action, was the complainant, and Jos. A. Mabry and others were the defendants; and on the day aforesaid, air article, purporting to be a speech delivered by Joseph A. Mabry in said chancery cause, appeared in the columns of the said Sunday Whig and Register. The article contains an angry and violent defamation of the character of the plaintiff and his family, and was introduced to the public in the words following: “ Knox county Chancery Court.
On the day the above letter was written, the plaintiff replied thereto in the words following:
“'Tour favor is received. I can accept no private apology or explanation for the wrong which you have done me. If you want to repair the wrong, do it in an open and manly way. If you do not, my*374 duty to myself and family is a plain one and I will discharge it.”
This correspondence was had on the 5th of September, 1870. It appears that no public explanation was made, and on the 10th of September thereafter this action was commenced. After the beginning of the action, and on the 12th of January, 1871, the following article appeared in the columns of the defendants’ newspaper:
“Another Unfortunate Editor. — From the article we copy below from the Cincinnati Enquirer, it will be seen another editor has put his foot in it for $50,000 damages, and the fund will now swell to $400,000!!!
“ The Enquirer of Monday says: ‘A Col. Baxter, of Tennessee, had a considerable amount of character to dispose of and managed to get himself libeled. He has brought suit against the following papers and persons: Nashville Banner, $50,000; Union and American, V $50,000; Athens Post, $50,000; Sweet Water Enterprise, $50,000; Knoxville Whig and Register, $50,000; Joseph A. Mabry, $50,000. If Col. Baxter gets paid for the amount of his damages he will have $350,000 — a very comfortable sum. • But if lie has any character left, he had better keep it. He can not afford to dispose of much more even at the highest market price.’”
This latter publication was introduced upon the trial on behalf of the plaintiff to indicate the quo animo and intent of the prior publication of the 4th of September, 1870, upon which the action was brought.
In the progress of the trial the defendant’s counsel was proceeding to read to the jury certain letters and articles contributed to the Chronicle newspaper by the plaintiff, of a highly inflammatory character, charging Jos. A. Mabry and others with fraud and corruption in the management of certain public moneys, and tending to illustrate the ferocity of a long and angry feud, which for many years had existed between said Mabry and the plaintiff. The plaintiff objected to partial extracts from those articles, and insisted upon his right to have the whole submitted to the jury: whereupon it was -agreed between the parties that the whole should be considered as read and the subject of comment in argument. This opened a wide field of argument not germain to the issues involved in this cause, but which, so far as it related to the matter discussed in these several publications, was rendered legitimate by the agree
These are cardinal principles, which assume different shapes as they are uttered by different courts, but they are everywhere to be found in the text-books of the common law, and it is upon their due and proper enforcement the inviolability of the right of trial by jury reposes. Let us apply them to the facts of this case. It will be observed that Joseph A. Mabry was the author of the libelous publication on which this action is brought. He it was who had sold to these defendants the press in which the publication was made.
We are of opinion that the ruling of the court in permitting such latitude to the plaintiff in the argument of this cause was irregular and reprehensible. We are not prepared, however, to reverse the judgment on this account, especially iir the absence of a request by the defendants for specific instructions as to the effect of the plaintiff’s statement: Larkins v. Tarter, 3 Sneed, 686. But we prefer to reserve the question.
2. It is urged with great earnestness on behalf of the defendants that' there was error in the judgment of the court below in disallowing the demurrer. We do not think so. It is true that a bona fide report of the proceedings in a court of justice, in the absence of express malice, is not a libel, though the publication may be injurious to the character of an individual: 6 Bac. Abt, 349. Privileged communications of this nature are those made by counsel in the regular course of justS.ce; but to be protected they must be pertinent and material to the matter in controversy: Gilbert v. The People, 1 Denio, 41.
The publisher of libelous words, in the contemplation of law, is particeps eriminis with the utterer. A want of personal acquaintance with the party defamed is no excuse to the publisher, nor is a want of knowledge of the publication by a joint publisher any excuse to
3. We can not interfere with the discretion of the jury upon the argument that the damages assessed in this case are excessive. We intimate no opinion upon that point but as the defendants are to have the benefit of a new trial, we content ourselves with stating some general rules upon that subject. The rule in such cases is, that the actual damages are lo be assessed upon a careful consideration of the charge against the plaintiff, the circumstances of the publication, the extent of the circulation, and the natural and necessary consequences of such a publication, according to the results of human experience: Hil. on Rem. Torts, 456. This principle was, in substance, embodied in the charge of the court to the jury. Upon this subject the Supreme Court of the United States, in Day v. Woodworth, 13 H., 363, uses the following language: “A jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers,, but if re
But we hold that there are certain cardinal rules upon this subject which the court and jury must not lose sight of. While it is true that the citizen can not be compensated in money for the injury done to his family by an atrocious libel or slander, yet the gist of the action is the malice, the temper and disposition with which the publication is made. The guilt, says Chancellor Kent, and the essential ground of action for defamation consists in the malicious im-
To illustrate briefly the conflicting views of the courts upon this subject, it is only necessary to state that in some cases the admissibility of other words or writings has been limited to those which were not in themselves actionable: Mead v. Daubigny, Peak’s Col., 125; Bodwell v. Osgood, 3 Pick., 376; Defries v. Davis, 7 C. & P., 112; or for which damages have been recovered: Symmons v. Black, 1 M. & Rob., 577. In other cases it has been restricted to words or writing relating to those alleged in the declaration: Finnerty v. Tipper, 2 Camp., 72; Delegal v. Highley, 8 C. & P., 444; Barnell v. Adkins, 1 M. &. G., 807; Ahem v. McGuire, 1 Armstrong & Macartney, 39; Bodwell v. Osgood, 3 Pick., 376. In others the admissibility of subsequent words has been limited to cases where the intention was equivocal or the words ambiguous: Stuart v. Lovell, 2 Stark R., 93; Pearce v. Ormsby, 1 M. & Rob., 455; while in the case of Fisher v. Patterson, 14 Ohio, 418, it was held that distinct or separate libels not declared on, can not be introduced in evidence and relied on by either plaintiff or defendant to show malice, or to aggravate or mitigate damages. And so, says another authority, if the words declared on are not ambiguous, or the libelous intention be not equivocal, evidence of subsequent words of the same import has been refused: 2 Saund. PI. and Ev., 951. Libels published in the same paper six years before the publication of the libel com
It is the prevailing doctrine, says Hilliard, though the authorities are conflicting, confused, and by no means reconcilable, that evidence of defendant’s subsequently repeating the slander or libel is inadmissible; but such evidence, or evidence of previous words, when the defendant’s intention is- at all equivocal, is clearly admissible to show malice: 1 Hil. Torts, 311. Upon this distinction, it is said, with great good sense, that the purpose of such evidence as stated seems rather verbal than practical, inasmuch as the amount of damages in this action must always materially depend upon the motives of the defendants: Vid. 32 N. H. Rep., 458. In Finnerty v. Tippin, 2 Campb., 72, which was an action for a libel published in a periodical, Mansfield, C. J., refused to admit in evidence subsequent numbers of the work unless they expressly referred to the libel for which the action was brought; for the subsequent publication, he said, might contain the most scandalous matter, while the former libel may have contained almost nothing, and the necessary consequence would be that the jury would give damages for the second libel in an action for the first: 3 Phil. Ev., 467. In Vincent v. Dixon, 5 Ind. R., 76, it is said that the
In view, therefore, of this great conflict and confusion of authority upon this question, and of the reasons of the law, we feel a sense of safety in adhering to our own rulings upon this subject, that a plaintiff in an action for libel can not adduce in evidence for any purpose a publication of the defendant made subsequent to that sued on, unless the subsequent one be an explanation or confession of the former, or contain an express admission of the malicious intent in the first publication. We think that in this ruling of our fathers lies the sense and reason of the law.
Reverse the judgment and remand the cause for a new trial.