(after stating the facts not within [ ] as above).
1. The initial question is whether the trial court erred in holding that as a matter of law the words used were not libelous per se.
A number of relevant principles are beyond controversy. Published words may be defamatory per se; that is, defamatory without proof of special damage. As to what constitutes such words, Mr. Justice Mitchell said, in Byram v. Aiken,
More specifically, words charging misconduct in office, want of official integrity or fidelity to public trust, and words which tend to deprive an official of his office, are libelous per se. State v. Norton, supra, page 99,
In determining whether the specified matter is libelous per se, two rules of construction are conspicuously applicable: (1) That construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in
Defendant divides its argument that the matter was not libelous per se into two parts: Its first argument is based on this particular sentence: “Tawney, proved a falsifier of public documents by his' misquotation upon the floor of congress of a letter from the secretary of the treasury and his misstatement of facts with respect to an investigation and exposure in the bureau of .engraving and printing.” This, it insists, asserts two facts: (a) That Tawney misquoted a certain letter; (b) That Tawney misstated certain facts. From the existence of these two facts, the writer of the article draws the conclusion that Tawney is “proved a falsifier of public documents.” He concludes that “the opinion or conclusion that it [defendant] drew from these facts, cuts no figure. * * * If the article complained •of simply read, Tawney is a falsifier of public documents,’ an altogether different question would be here presented.” The published matter was not libelous, but simply “diseommendatory” (see McDermott v. U. C. Co.,
This reasoning is obviously unsound. Defendant eliminates the first charge that plaintiff was a falsifier of public records on the floor of congress, and attributes an innocent meaning to “misquotation” and “misstatement.” The difficulty is that these words, “a falsifier of public documents,” occur and are significant. They must be dealt with on the same principle which requires even headlines to be considered. Landon v. Watkins,
The imputation of falsehood, which was here made, when published in writing, is libelous per se. Cooper v. Stone, 24 Wend. (N. Y.) 434, at page 441; Riley v. Lee,
Defendant, however, invokes authority to the effect that words, susceptible of carrying a libelous or slanderous meaning may be deprived of that quality by association with other parts -of the context. Thus to charge a man with false assertion may be shown by. the context to mean to charge “that he reasons from false premises,, or draws false conclusions from correct premises,” ■ and therefore not to be libelous. Walker v. Hawley,
In the case at bar the specification that the defendant falsified by misquoting or misstating might be regarded as adding force and point to the charge. Such clauses are certainly not inconsistent with it, and they do not tend to negative the express allegation of wilful and deliberate wrong on the part of the defendant set forth in the complaint. They are not “an antidote to a bane.” This is not a case where something to a man’s credit is to be considered with something to his discredit. To say that a man is a thief is not freed from an objection by adding that he has taken one man’s horse or kept another man’s cow. But to say that a man is a thief because he has converted one man’s horse and appropriated another man’s cow is to aggravate the charge by specification. So to call a man a liar is not diminished in defamatory character by citing instances in which he has made misstatements. We conclude that the modifying clauses did not destroy the libelous character of the main charge and that this sentence was libelous per se.
With this view falls the argument from inconvenience, for under the view here adopted whether the charge of misquoting and misstating, alone, may or may not be made without liability in libel, is neither considered nor determined.
Defendant’s second argument is that the remainder of the article excluding the particular sentence is not libelous. . The use of plaintiff’s name in connection with Senators Burton,- Mitchell, and Hermann (who had all been charged or convicted of crime) .'was, according to defendant, rendered innocuous by Crashley v. Press Pub. Co.,
Whether, however, these other parts of the article, outside of the particular sentence previously considered, had a natural tendency to defame, it.is really unnecessary to here determine. The question is not whether that article can be divided into .two parts, and each of those parts so analyzed separately from each other that each would appear to be free from defamatory meaning. The article must be construed as a whole. The remainder of the article tended, not to destroy, but to increase, the natural defamatory character of the particular sentence previously considered. Due weight must, moreover, be given to .plaintiff’s formal allegations of the sense in which the words were used and understood. We conclude it was error to hold as a matter of law that the words were not libelous per se.
2. The truth of the charge did not appear as a matter of law on the face of the pleadings. With their truth in fact we are not concerned on this motion for judgment. It is elementary that, to make out the defense of truth in an action for libel, the plea in justification must be substantially as broad as the charge. The plea of truth must, moreover, not only extend to the entire language complained of,'but must allege its truth in the sense imputed to it by plaintiff (Morse v. Times Republican Printing Co.,
If, however, what was meant to be charged was, not that plaintiff had misquoted, but that he had “misstated or misrepresented,” or had misconstrued the letter, then the defendant failed, on the pleadings, to make o-ut the defense of truth to that charge; for, in addition to setting forth the words themselves, the complaint further alleges that defendant charged plaintiff with deliberately and wilfully falsifying public documents on the floor of congress. The letter set forth in the answer may or may not have warranted the inference plaintiff had drawn. This there is no occasion to now consider or determine; for, upon the assumption that the letter would not justify plaintiff’s conclusion, it still does -not appear that plaintiff had misconstrued the letter with any but an innocent intention. The truth of what defendant published, in the sense imputed to it by the complaint, was therefore necessarily not made out by the answer. So in Wernher Co. v. Markham, [1901] 18 Times L. R. 143, [1902] 163, the defendant called plaintiffs “thieves and swindlers,” and pleaded that the words were true in substance and in fact. It was there attempted to say that in using the words “thieves and swindlers” he did not mean to impute criminal dishonesty. This was held insufficient.
This conclusion is the more readily reached, inasmuch as the -plaintiff’s argument that he had truthfully stated the facts of the 'letter rests to an indefinite extent on matters which are not i-n the record'. How far these extrinsic facts are the necessary and proper objects-of proof, and how far this court will take judicial notice of such matters, or of other matters involved therewith in defendant’s argument on that -point, are questions naturally arising upon trial, and are best
In this view it would be superfluous to inquire into the truth of the charge made with respect to the investigation and exposure in the bureau of engraving and printing, or into the extent to which similar reasoning concludes that controversy; for, upon the assumption that this part of the charge was true in fact, the justification as a whole could not be as broad as the charge.
3. Nor has the defendant made out the defense of qualified privilege or of fair comment as a matter of law. On this subject, there is particular confusion and disagreement. 24 Law Q. ¡Rev. 235. The uncertainty begins at the threshold. It is frequently, perhaps generally, said that a libelous publication is actionable, unless justified or privileged; that privilege may be absolute or qualified; and that newspaper comment on public men is a qualified privilege. It is, however, also insisted that this does not mean that such words are published on a privileged occasion in any strict sense of the term (see authorities collected in 25 Cyc. 401, note 77), but that comments on matters of public interest should he treated as a separate defense, and not included as a species of the genus general privilege. Odgers, L. & S.
It is not necessary, however, that this controversy should be here determined, for the complaint charges defendant with express malice. This must be treated as admitted for the purposes of the present motion. In any view, the defense under these circumstances was not made out; for it is clear that the right to comment and to criticize, viewed as a separate defense, or viewed as an instance of qualified privilege, does not exist where express malice is shown.
The English rule is: “In an action of libel, where the defense is that the writing complained of is fair comment upon a matter of public interest, evidence that the defendant was actuated by malice towards the plaintiff is admissible, upon the ground that comment which is actuated by malice cannot be deemed fair on the part of the person who makes it, and, therefore, proof of malice may take a criticism that is prima facie fair outside the limits of fair comment.”
Reversed.