42 N.H. 137 | N.H. | 1860
The evidence offered to show the character of the donation party, and the conduct of the persons attending it was rightfully rejected. Under the general issue the defendant can not prove that the plaintiff was guilty of the acts charged, either in justification, or to mitigate damages or rebut malice. Dame v. Kenney, 25 N. H. 318; Pallett v. Sargent, 36 N. H. 496; Knight v. Foster, 39 N. H. 576. The offer to show the character of the party and the conduct of the persons attending it, could have had no bearing except so far as it tended to show the plaintiff’s conduct, and under this plea such proof was not admissible.
Another question is, was it competent to prove the understanding of witnesses that the libel applied to the plaintiff. The meaning of the defendant in this respect is undoubtedly a question of fact to be found by the jury, under the instructions of the court. 2 Greenl. Ev., sec. 417, and notes; Oldham v. Peake, 2 W. Bl. 959, 962. Whether the libel was of and concerning the plaintiff is a question for the jury to decide. Van Vechten v. Hopkins, 5 Johns. 211. So far there is no conflict in the authorities, but the important question is, how far is the testimony of witnesses, stating how the libel was understood, to be received. In Van Vechten v. Hopkins it was held that the opinion of witnesses that, on reading the libel, they believe the plaintiff to be the person intended, was not admissible; and so are Gibson v. Williams, 4 Wend. 320, 325; Beardsley v.
Upon the other hand it has been held that it was competent to show, by persons to whom the libel was published, that they understood it to apply to the plaintiff, and that the terms used being ambiguous, so far as they related to the persons intended, it was a question for the jury to determine whether they did so apply or not; and, consequently, it was incumbent upon the plaintiff, by proper averments and proof, to show that the defendant intended to apply his remarks to the plaintiff; and, also, to show that the persons who read the libel so understood it. 2 Greenl. Ev., sec. 417; 2 Stark. Ev. 861; 2 Stark, on Slander 320, 350; Miller v. Butler, 6 Cush. 71; Phillips v. Barber, 7 Wend. 439; Norton v. Ladd, 5 N. H. 200; Smalley v. Stark, 9 Ind. 142; Sasser v. Rowe, 13 Ired. 142; Pond v. Hartwell, 17 Pick. 268; Woolwich v. Meadows, 5 East. 463. In that case Lord Ellenborough held that the plaintiff must show the intention of the defendant to impute the crime to the plaintiff, and that it was so understood by the hearers. In Bowker v. Warren, 2 C. & P. 307, where the person was designated by five asterisks, held it was sufficient, if those who knew the plaintiff' understood it; and witnesses were allowed to state how they
The distinction that the understanding of the hearer is received for no other purpose than to show the sense in which he received it, and not how it was intended, is recognized in Leonard v. Allen, 11 Cush. 241; Sasser v. Rowe, 13 Ired. 142, and Hawkes v. Patten, 18 Geo. 52. There are some cases, however, which hold that the understanding of the hearers is not admissible for any purpose, as Snell v. Snow, 13 Met. 278; Gibson v. Williams, 4 Wend. 320; White v. Sayward, 33 Me. 322; Van Vechten v. Hopkins, 5 Johns. 211. In the latter ease it was held 'that the opinion of the witness from reading a libel, that it applied to the plaintiff was properly excluded; but it appeared that the witness had no knowledge of the circumstances except what he obtained from reading the libel, nor did it appear that he was one of the persons to
Upon a careful examination of the cases, we are inclined to hold that the true rules to be deduced from them are these: That where the words are ambiguous, and the application doubtful, it must be shown by the plaintiff. (1) That the words were actually used in their actionable sense, and were applied to the plaintiff. (2) That the hearers so understood them; and, upon this point, the testimony of the hearers, as to how they understood them, is admissible, although it would have no legal tendency to show in what sense they were actually used, inasmuch as the hearers may have been under a total misapprehension, both of the meaning and the application, and it would be hard that the defendant should be responsible for such mistake.
Had it appeared, then, as in the ease before us, that the meaning was ambiguous and the application doubtful, and that the witness was one to whom the libel complained of was published, his understanding of it would be admissible, especially if it appeared that he was acquainted with the circumstances to which it related. Great.care, however, should be taken, that under the pretense of showing how the hearers understood an ambiguous expression, the mere opinion of the witness, as to the interpretation of the language, should not be received. And we are
Upon the subject of the alleged variance, the court charged the jury that if the article adduced in evidence agreed substantially, in its sense and meaning, with the libel charged, it was sufficient, and this we are inclined to think is correct. Miller v. Miller, 8 Johns. 74; 2 Greenl. Ev., sec. 414; Whitney v. Smith, 13 Pick. 372; Pearsons v. Bellows, 6 N. H. 289; Bassett v. Spofford, 11 N. H. 127. But all the words need not be set forth, only enough to show the sense and connection in which those set forth were used. Edgerly v. Swain, 32 N. H. 478; 1 Chit. Pl. 405.
In respect to the fifth count, in which part of the published article is omitted, if what is set out is the same in substance, that is, contains the same charge, not altered substantially by what is omitted, it is well enough. If, however, by taking the whole together it makes a different charge from what is made by the part set out alone, the variance is fatal, although it may have contained a substantial slander, but of a different nature. But we think that the libel, with or without the part omitted, is substantially the same, and in either form, if applied to the plaintiff, is clearly actionable. But it is said that whether there be a variance or not is matter of law, where there is no dispute as to the words. If this be so, still, as the words are before us, and we can see that the jury have found, as the court would pronounce the law, no injury is
The court properly declined to instruct the jury as requested — that if the defendant acted bond fide- in the discharge of what he believed to be his duty, the action could not be maintained without extrinsic proof of express malice. The conductor of a public press has the same rights to publish information that others have, and no more. He has no peculiar rights or special privileges or claims to indulgence. He. may publish the truth, but has no right to publish falsehood to the injury of others. The case of a conductor of a public press does not come within the class of persons privileged in their communications. Sheckel v. Jackson, 10 Cush. 25. If false, the law infers malice from the publication, although in a newspaper, unless the contrary is shown. King v. Harvey, 2 B. & C. 259. There is no right in printers more than others to do wrong, and they are not justified because they did not write the article, or did not know the plaintiff'; that does not disprove malice, but often aggravates it by showing a wantonness and indifference whether it be true or false. Story, J,, in Dexter v. Spear, 4 Mason, 115. The liberty of the press is not endangered by the punishment of libelous publications. Any publication is a libel which tends to degrade, injure, or bring a person into contempt and ridicule; or accuses him of crime or other act odious or disgraceful. It is even held in England, that a report of proceedings and testimony in a preliminary examination of the plaintiff, before a magistrate, if false and injurious, is a libel. Duncan v. Thwaites, 3 B. & C. 556. So it is held that a publication in a newspaper is actionable, though the editor believed it to be true, and did it from good motives. Usher v. Severance, 20 Me. 9. And so in Hotchins v. Oliphant, 2 Hill 510— held no defense that he copied from another paper.
Where many persons are included in the same attack,
Our conclusion, then, is, that there was error in admitting the opinion of the witness, as to the application of the libel to the plaintiff, and therefore the
Verdict must be set aside.