Vactor v. Walkup, 46 Cal. 124

Vactor v. Walkup

46 Cal. 124 | Cal. | 1873

By the Court:

The plaintiff was one of the Supervisors of Placer County, and the defendant the publisher of a newspaper in the same county. The action is for libel, and was tried before a jury, which rendered a verdict for the defendant; and the plaintiff, having moved for a new trial, which was denied, has appealed from the judgment and from the order denying his motion. The alleged libel related to a sale by the plaintiff and two other Supervisors of said county, under the authority of a special Act of the Legislature, of certain shares of the capital stock of the Central Pacific Railroad Company, which belonged to the county. It was published in the defendant’s paper, and stated that the Act of the Legislature gave to the Supervisors power to sell the stock upon such terms and conditions as they should deem expedient; that under this authority they sold the stock; “and after they had had the two hundred and fifty thousand dollars counted out to them, they then made such terms and conditions that the money never reached the County Treasury. These terms were, that D. O. Mills & Co. should keep the two hundred and fifty thousand dollars four months, and with it buy up our bonds at a discount, and then pay over the bonds to the Supervisors, as so much gold coin at par. Instead of the money being in the treasury here, it never was inside of Placer County, for the Supervisors swapped it off in Sacramento, and a villainous swap it was. Two things appear plain: one is, who struck Billy Patterson? and the other is, who whipped the devil around the stump, and thereby m,ade money?” The statement on *132the motion for new trial contains none of the evidence, and only the charge of the Court to the jury, which was excepted to by the plaintiff. Whether the charge was correct or otherwise, is the only question raised by the plaintiff on the appeal.

After correctly defining a libel and stating the pleadings, the Court instructed the jury that they are to decide whether the article is libelous, and if it be, whether it refers to the plaintiff—“that is to say, does it charge the plaintiff with corruption in office?” * * * “It is not pretended that the article complained of charges the plaintiff in express terms with corruption in office, or with dishonesty in his official or private conduct; but it is averred that the defendant intended to so charge, and that it was understood by those who read it as so charging. How, this is the meaning assigned to the article by the plaintiff in his complaint, and it is for you to determine whether that is the true meaning of the alleged libelous article. In order to determine this question, you will read and consider the article itself, and also consider and weigh the evidence offered, for the purpose of illustrating the true and real meaning of the alleged libelous article. You are to read and understand the alleged libelous article according to the ordinary import of the language used.” If the charge had stopped here, it would have announced the law precisely as the plaintiff claims it to be. This portion of the charge is certainly not amenable to the criticism addressed to the remainder of it by the plaintiff’s counsel. It submits the whole publication to the. consideration of the jury, in order that they may determine whether the language employed was used in a libelous sense. But the Court proceeds to recite the substance of the publication, and instructs the jury that all that portion of it from the commencement down to and including the words “ and a villainous swap it was,” “cannot be understood as charging the plaintiff with doing anything dishonest or *133with corrupt motives;” that it amounts only to a statement “that the exchange of the money for the bonds was unwise, improvident, and disadvantageous to the County of Placer. It is true, the transaction is called ‘a villainous swap,’ but I suppose no one reading the article down to and including those words could or would be justified in believing that it was intended to charge the plaintiff with corruption in office. The word ‘villainous’ evidently was used to express the degree of improvidence or injudiciousness of the exchange, and not the motives or inducements that led to it.” It is this portion of the charge to which the plaintiff particularly excepts; and he insists that the phrase, “and a villainous swap it was,” in the connection in which it was used, is capable of being interpreted, in its ordinary and popular sense, as imputing to the plaintiff dishonest conduct and motives, and that it was for the jury, and not the Court, to determine in what sense it was used and understood. When the language is ambiguous, that is to say, when it is capable of two meanings, one of which is harmless and the other libelous, it is undoubtedly the province of the jury to determine in which sense it was used. But it is equally clear that it is the province of the Court to determine whether, on its face, the alleged libel is capable of a double meaning. “It is for the Judge to decide whether the language is capable of the meaning ascribed to it by the innuendo, and for the jury to decide whether such meaning is truly ascribed to it.” (Townsend on Libel, Sec. 284, and cases there cited.) The Court, therefore, did not exceed its authority in deter•mining the question whether the phrase, “and a villainous swap it was,” is capable of the meaning ascribed to it by the plaintiff. But whether it correctly decided the question is open to review on this appeal. In ascertaining the meaning of a particular sentence, it must, of course, be construed in connection with the remainder of the publication of which it forms a part. An isolated phrase, if standing alone, or *134used in a different connection, may be capable of a meaning of which it is not susceptible in the connection in which it is used. The familiar illustration of this proposition, as given in the books, is that to say of a man that “he is a thief,” is, of course, actionable, as importing a charge of crime; but if it be added, “because he stole a lady’s heart,” it becomes apparent that the words were used in a harmless sense, and are not capable of a different interpretation.

In determining whether the language is capable of a double meaning, one of which may be libelous, it must, therefore, be construed in connection with the remainder of the publication; and the Court below fell into the error of separating the alleged libel into two parts, and construing each part separately, without reference to the other. If the phrase, “and a villainous swap it was,” in connection with what preceded it, is not capable of being understood as imputing to the plaintiff dishonesty in his private or official capacity, this certainly cannot be affirmed of it when considered in connection with what immediately follows, viz.: “Two things appear plain. One is, who struck Billy Patterson ? and the other is, who whipped the devil around the stump, and thereby made money ?” It may be that all these phrases were used in a harmless sense, but it cannot be said that they are incapable of being understood in any other; and it was for the jury, and not for the Court, to decide in what sense they were used.

Judgment reversed, and cause remanded for a new trial.