64 P. 290 | Cal. | 1901
Appeal from a judgment for the defendant and from an order denying a new trial. The suit was for libel, published in the defendant's newspaper, reflecting on the plaintiff as one of the board of trustees of the town of Los Gatos. The article complained of is as follows: —
"The facts are these: The town clerk advertised for bids to build a certain culvert, the bids to be in at the town hall by five o'clock on Monday last. The august Wringers met and awarded the contract to the lowest bidder about nine p.m. on Monday night; the material for the said culvert was at the Los Gatos depot by five o'clock, a.m., Tuesday. *226
"Now, this looks as if the Wring was well twisted, as Mr. Sylvester, the contractor, must have known long before the board met that the contract was his, as it was impossible, after nine p.m. on Monday night, to order the lumber, load it on the car, and get it here next morning by five o'clock.
"Can our City Wringers explain this unjust and discriminating action to the people of Los Gatos? If a reasonable explanation is not forthcoming, I will add my mite with others to prevent the payment of any bill contracted so illegally.
"JUSTICE."
It is alleged in the complaint that the article was published of and concerning the plaintiff (Code Civ. Proc., sec. 460); and that this was the case, appears from the fact that of the five trustees constituting the board, only three, including the plaintiff, participated in the award of the contract. It is claimed by the appellant that the article published is libelousper se, and that, in the absence of justification, he was entitled to a verdict for at least nominal damages. If so, he is now entitled to a reversal. (Lick v. Owen,
The definition of libel in our code is taken from Field's New York Civil Code (sec. 29), and is but a statement of the common-law rule as given in the cases there cited. (2 Kent's Com. 17; Stone v. Cooper, 2 Denio, 293; Cooper v. Greeley, 1 Denio, 347; Steele v. Southwick, 9 Johns. 214.) The effect of these and other cases is thus stated — almost in the language of the code — by Mr. Odgers: "In cases of libel, any words will be presumed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, which tend to injure him in his profession or trade, or to cause him to be shunned or avoided by his neighbors." (Odgers on Libel and Slander sec. 21; O'Brien v.Clement, 15 Mees. W. 435; Crop v. Tilney, 3 Salk. 226; Villersv. Mously, 2 Wils. 403.) There is indeed an apparent difference between the code definition and the older definitions, in the use, by the former, of the words, "false and unprivileged," as descriptive of a libelous publication; but this language does not materially change the rule. The burden of proving the truth of the libel, or the privilege claimed, still lies on the defendant, as at common law. (Newell on Slander, and Libel, secs. 71, 72; Odgers on Libel and Slander, sec. 169; *227 O'Brien v. Clement, 15 Mees. W. 435.) The difference is therefore merely verbal. According to the old definition, a libel may be justified by proving its truth, or that it is privileged; under the code definition, the publication, if it can be thus justified, is not a libel. Under either point of view, therefore, it will be necessary to consider separately the question as to the general character of the publication and the question as to its justification.
1. The first question to be considered, therefore, is, whether, in the absence of justification or privilege, the publication complained of is, in itself, a libel; and this, I think, must be determined affirmatively. Where there is a statutory definition, — it has been said by this court, — "language which is fairly included in such definition is libelous per se. It is only when the libelous meaning of the publication is covert — not apparent on the face of the language used — that averment and proof of special damage is required." Our code defines libel as follows: "Libel is a false and unprivileged publication, by writing, pictures, effigy, or other 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." (Civ. Code, sec.
To constitute a libel it is not necessary that there be a direct and specific allegation of improper conduct, as in a pleading. The charge may be either expressly stated or implied; and in the latter case the implication may be either apparent from the language used, or of such a character as to require the statement and proof of extrinsic facts (inducement, colloquium, *228 and innuendo) to show its meaning. In the last case, proper allegations and proofs of the facts necessary to make the meaning of the language apparent will be required. Otherwise, whether the charge be directly made or merely implied, the publication — without averment, colloquium, or innuendo — will, in itself, constitute a libel. "The construction which it behooves a court of justice to put on a publication which is alleged to be libelous is to be derived as well as from the expressions used as from the whole scope and apparent object of the writer." (Cooperv. Greeley, 1 Denio, 358.) Thus in the case cited, the charge was not "made in an open and direct manner"; "but," it was said by the court, "an imputation made in that form is not the less actionable." So in the case of Steele v. Southwick, 9 Johns. 214, — where the charge was not direct, — it was said: "If the words do not import perjury in the legal sense, they hold the plaintiff up to contempt and ridicule, etc. . . . . In this view the words are actionable, for a writing published maliciously, with a view to expose a person to contempt and ridicule, is undoubtedly actionable; and what was said to this effect by the judges of the C.B. in Villers v. Mensley (Wils. 403) is founded in law, justice, and sound policy. . . . . To allow the press to be the vehicle of malicious ridicule of private character would soon deprave the moral taste of the community, and render the state of society miserable and barbarous."
The libel charged in this case not only expressly avers that the trustees referred to — of whom the plaintiff was one — had in some way treated the citizens in a manner "most contemptible, illegal and unjust, . . . . and unworthy of a body of citizens elected to look after the best interests of [the] town," and that their action was "unjust and discriminating," but it charges them, by implication, as plainly as though it were directly alleged, with constituting, or being members of, a "ring," — by which, as used in the context, must be understood, according to the most obvious and familiar sense of the term, a combination for illegal or otherwise improper purposes (Edwards v. Pub. Soc.,
2. Two affirmative defenses are set up in the answer, which may be conveniently referred to as a plea of justification and a plea of privilege. The former is to the effect that the article is "a true and fair report" of the proceedings referred to, published "without malice." (Civ. Code, sec.
It was, however, competent for the defendant to show, under the general issue, that the alleged libel was privileged, or as otherwise expressed, that "it was published on some lawful occasion." (O'Brien v. Clement, 15 Mees. W. 437.) It remains, therefore, to be considered whether, on the evidence, such a claim can be maintained. The theory of the defense on this point is, that the proceedings referred to in the article were correctly reported, and that the rest of the publication was merely a comment upon them, which the writer, as a citizen, had a right to make, and the defendant to publish. The privilege thus claimed, if it can be sustained at all, must — it would seem — rest upon the provisions of subdivision 3 of section
Other points made by the appellant are, that the court erred in allowing defendant's witnesses to testify, over his objections, that the plaintiff's standing and reputation in the community were in fact not deleteriously affected by the libel; and that the court erred in refusing to instruct the jury, at his request, that upon a plea of justification and failure of proof to sustain it, the plaintiff would be "entitled to exemplary damages." The admission of the testimony objected to was erroneous. (Titus v.Sumner,
I advise that the judgment and order appealed from be reversed and the cause remanded for new trial.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are reversed and the cause remanded for a new trial.
McFARLAND, J., Temple, J., Henshaw, J.