Washington Gas Light Co. v. Lansden

9 App. D.C. 508 | D.C. | 1896

Mr. Chief Justice Alvey

delivered the opinion of the Court:

It has not been seriously contended that the article itself as published is not libellous; but the question is, who are liable for the publication ? Any and all publications in writing or in print, imputing to another crime, or disgraceful, or fraudulent, or dishonest conduct, or which are injurious to the private character or credit of another, or which tend to render a party ridiculous or contemptible in the relations of private life, are libellous, and an action for damages is maintainable against the writer and publisher, unless the publication is embraced within that class of communications which are termed privileged communications, or unless the libeller can prove the truth of the libel. Digby v. Thompson, 4 B. & Ald. 821. And so, if, by such writing or print, it be imputed to a party that he is unfit to be trusted with money, or that he is guilty of treachery or ingratitude to his friends and benefactors, or of misconduct in an office of trust, an action will lie. Cheese v. Scales, 10 M. & W. 488,

Of course there can be no question at this day as to the right of the plaintiff to maintain an action for libel against the gas light company, a corporation, if the corporation has authorized or made itself liable in any manner for the publication of the libel. Phil., Wilm. & Balto. R. Co. v. Quigley, 21 How. 202; Fogg v. Boston & Lowell R. Co., 148 Mass. 513.

In this case, as we have stated before, the principal question is, whether the defendants, or any of them, against whom the judgment below was rendered, are or is responsible for the publication of the libel set out in the declaration ? It is conceded that the alleged libel was not actually written and published, in the terms of the article printed in “ The Progressive Age,” by any of the defendants; but it is contended that the article was composed and published by their authority or procurement, or that they conduced to such publication.

In 2 Starkie on Libel and Slander (2d Eng. Ed.) 28, it is said “ that the declaration generally avers that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary, either in a civil or criminal proceeding; in civil proceedings the principal is to all purposes identified with the agent employed by him to do any specific act. A consent by the master to the act of the servant in printing a libel is prima fade evidence of publication by the master, and an allegation that the defendant published the libel is satisfied by proof that it was published by his agent, if an authority from the principal to the agent can be proved.” And again, at page 225, of the same volume, it is laid down by the author as text law, that, “ according to the general rule of law, it is clear that all who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication; thus, if one suggest illegal matter, in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication, when it has been so effected.”

And in the work of Sir Frederick Pollock on the Law of Torts, p. 168, in treating of the law of defamation, the author says: “On the general principles of liability, a man is deemed to publish that which is published by his authority. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general sense and substance of his request.”

This principle would seem to result from an obvious principle of reason and justice; for otherwise an irresponsible person might be put forward, and the person really producing or inciting the publication, and without whose contribution it would not likély ever have been published, might remain in entire safety. This would not be according to the well settled principles of law, which intend that a party who really instigates or incites a wrongful act shall be responsible therefor.

This principle of liability, as applied in the case of libel, is very fully and clearly illustrated and enforced in the case of Parker v. Prescott, L. R. 4 Exch. 169, in the Exchequer Chamber. That action was against two defendants, and the question turned upon the sufficiency of the evidence to hold the defendants liable for the publication of the libel. The learned judge before whom the case was tried at nisi prius thought the evidence insufficient, and directed a verdict for the defendants. The case was taken on bill of exception into the Exchequer Chamber, and was.there heard before five judges, three of whom held the ruling below to have been erroneous. They held it to be clear law, that where a man makes a request of another to publish defamatory matter, of which for the purpose he gives him a statement, whether in full or in an outline, and the agent publishes that matter, adhering to the sense and substance of it, although the language be to some extent his own, the man making the request is liable to an action as the publisher.

The case was held under advisement, and the learned justice, in delivering the opinion of the majority of the court, said: “ The libels complained of were the reports of certain proceedings at a meeting of the board of guardians for the parish of St. Marylebone, which were published in some local newspaper. It appeared in evidence that at the meeting a discussion took place respecting the conduct of the plaintiff towards his daughter, who was then an inmate of the workhouse, and the history of the qase, as stated at the meeting, in the absence (be it observed) of the plaintiff, and the remarks made upon it, were of a highly defamatory nature ; indeed, the story was spoken of by one of the defendants at the meeting as a very scandalous case with reference to the conduct of the plaintiff. The defendant Prescott was chairman of the meeting, and Ellis, the other defendant, was also present, taking part in the proceedings. Reporters of local newspapers, in which the libel appeared, attended the meeting. The following evidence was given to connect the defendants with the publication. The defendant Ellis said he hoped the local press would take notice of this very scandalous case, and requested the chairman to give an outline of it. This was done by several members of the board, and the chief facts were then taken down by the reporters. The defendant Prescott also said, in the course of his statement relative to the case: ‘ I am glad gentlemen of the press are in the room, and I hope they will take notice of it.’ On which the other defendant Ellis said, ‘ and so do I.’ The defendant Prescott also said he hoped publicity would be given to the matter. It was proved by the reporters that the reports published were a correct' summary of what took place, and one of the reporters stated that he had told the editor of the paper what the defendants had said before the publication.”

It was contended that what was said by the defendants ■ did not amount to a request to the reporters to publish the proceedings, but was a mere expression of a wish or hope that such proceedings should be published. In answer, however, to this contention the court said: “ But upon consideration of the circumstances of this case, I think there was evidence for the jury on the two questions which ought to have been submitted, viz: First, of a request to publish the proceedings of the meeting relating to the plaintiff’s conduct; and, second, that the reports contained a correct account of the proceedings as the defendants meant it should appear.”

After stating the evidence bearing on these questions of fact, the court proceeded to say: “Whether the libellous matter published is in pursuance of, and in accordance with, the request, or a departure from it, and so unauthorized, would be a question to be considered on the circumstances of the particular case.” And further on, in answer to the argument for the defence, the court said: “It was strongly urged for the defendants, that they could not be liable unless they authorized the libel in the very words in which it was published. If this argument is correct, then it must follow that a man could never be liable when he desired another to make and publish an outline or summary of a speech or writing, because such an outline or summary necessitates condensation and consequent alteration of language. But the argument cannot, as it seems to me, be correct. The man who requests another to make and publish an outline or summary of a speech, writing, or proceedings, must know that the words will be to some extent those of him who makes such summary or outline, and he must, therefore, be taken to constitute him an agent for the purpose, and be answerable for the result, subject always to the question whether the authority has been really followed. If this be not so, a man might become a libeller with immunity. Again, if the very words of the libel and not its substance, are in these cases to be regarded, a man who gives the manuscript of a libel to an agent to print and publish would not be answerable, if by accident or negligence there were variations in some of the words, although' hot in the substance of the libel.” The ruling of the court below was reversed, and a new trial ordered.

In all such cases as the present it is a question for the jury to determine whether the corporation sought to be held liable had authorized or ratified the publication', or whether the publication complained of was made or directed by its servants or agents, in the course of their employment. Fogg v. Boston & Lowell R. Co., 148 Mass. 513. In this case, as we have seen, the defendant Leetch was the general manager of the business and affairs of the gas company, and it was fully within the scope of his duties as such general manager, to protect and look to the general welfare of the company. In these and other circumstances there was evidence furnished to be submitted to the jury, to establish the fact that the libel was published by the authority of Leetch, while acting for and on behalf of the company, and within the scope of his authority as such general manager.

This question of fact was fully and fairly submitted to the jury by the first instruction given at the instance of the plaintiff, and as modified by the court. There was a redundancy of phraseology employed, it is true, but there 1S nothing in the language that could mislead the jury. The plaintiff’s case as against the gas company and its general manager was fully embraced by that instruction. By that instruction the jury were directed, that if defendant Leetch wrote and sent the letter of the 13th of February, 1894, to Brown, in the course of his duties as general manager of the defendant company, knowing Brown to be the publisher of “ The Progressive Age,” a paper devoted to the interest of gas producers, “ then it was a question for the jury to determine, from all the facts and circumstances of the case whether the said letter was or was not so written and sent for the purpose of supplying the data which it contains for a publication in said ‘Progressive Age,’ or with the knowledge that it was likely to be or probably would be used for such purpose; and if the jury believe from the evidence that it was so written and sent maliciously for such purpose or with such knowledge, and that the article complained of in the plaintiff’s declaration was in fact published and circulated in said ‘Progressive Age,’ then, to the extent that the contents of said article were suggested and inspired by said letter, if the jury shall believe from the evidence that such contents were so suggested and inspired, the defendant gas company and the defendant Leetch are legally responsible for the publishing of said article; and if the jury believe from the evidence that said article falsely and maliciously charges the plaintiff with having testified contradictorily and falsely before any committee of Congress, from improper motives and in violation of his duty to the Washington Gas Light Company, his former employer, and that such charges were fairly and naturally suggested and inspired by said letter, then the plaintiff is entitled to a verdict against the defendants the gas company and Leetch.”

To this instruction the court added the following, as a qualification or explanation:

“ But if you believe from the evidence that they communicated any false and libellous matter about the plaintiff to said Brown, knowing it to be false, with the intent or consent, express or implied, that the same should be published, you will be justified in finding malice therefrom, unless you shall believe from the whole evidence that no malice existed. The meaning of malice as here used is not confined to its ordinary meaning of hatred or ill will, but means also án intention to injure the plaintiff or a reckless disregard of his rights and of the consequences which might result to him from the false publication.”

With respect to the defendant Bailey, the second instruction given on request of the plaintiff presents a case against him, upon the assumption of the truth of the facts therein stated. There was evidence sufficient tending to establish those facts. And the court committed no error in refusing to direct a verdict in favor of any of the defendants against whom the jury found a verdict. There was no ground for contending that there was any such fatal variance between the libel set forth in the declaration and the evidence, as would defeat the action as against the defendants found, guilty by the verdict of the jury.

In regard to the third instruction given on request of the plaintiff relating to the question of damages, we do not understand that there is any serious objection to that instruction. • It would seem to be quite free from any substantial^ ground of objection. And in this connection, it is proper to observe, that the jury were expressly instructed by the fourteenth prayer of the defendants, which was granted by the court, that the plaintiff was not entitled to recover punitive damages against any of the defendants. Hence the ruling of the court in admitting evidence as to the financial condition of the defendant, the gas company, could not be prejudicial to the defendants, and that ruling, therefore, does not constitute reversible error.

The defendants offered twenty-one prayers for instruction to the jury; but of this number only four were granted. There were many questions attempted to be raised by the prayers that were rejected. Only a portion of them, however, are made the subjects of error specially assigned in this court.

By the seventh prayer of the defendants, the court was asked to instruct the jury that if they should find from the evidence that the. defendants did not request or solicit the publication of the article in “The Progressive Age,” and that the article set out in the declaration was published without their knowledge, then their verdict should be for the defendants. This the court refused for obvious reasons It plainly ignored the evidence as to one of the defendants; at least; and instead of the prayer thus offered, the court instructed the jury, “ that if they should find that the defendants did not request, solicit, intend, or inspire the publication of any article in ‘ The Progressive Age ’ of and concerning the plaintiff, and that the article set forth in the plaintiff’s declaration was published without their knowledge or procurement, directly or indirectly, then their verdict should be for the defendants and for each defendant not so participating in the publication thereof.”

The defendants excepted to the refusal of their prayer and to the granting of the substitute therefor.

Some of the terms employed in the substituted instruction are objected to as being indefinite and inappropriate. Whether the terms objected to are the most appropriate that could have been selected to express the thought intended to be conveyed by the instruction, may admit of some question; but the instruction must be read in the light of the evidence and in connection with all the other instructions given. In so considering it, we perceive no ground for supposing that it was misleading to the jury, nor do we perceive that there was any error in the ruling of the court thereon.

In the eighth prayer of the defendants, the court was requested to instruct the jury, that if they found that the article complained of as libellous was not composed and published, or procured to be composed and published by the defendants as an entirety, as charged by the plaintiff, then their verdict should be for the defendants. This was rejected, and the defendants excepted. The court, in our opinion, was clearly right in rejecting this prayer. The proposition involved has been disposed of in what we have already said in regard to the main question of publication, and in considering the questions presented by the instructions granted at the instance of the plaintiff. Parker v. Prescott, supra.

The defendants set up the defence of privileged communication, and by their thirteenth prayer they requested the court to instruct the jury that the letter of February 13, 1894, signed John Leetch, general manager, is a privileged communication, and before they could find a verdict against the defendants they must find the existence of malice against the plaintiff—that is, an intention to injure the plaintiff— as the motive of the defendant or defendants in writing such letter, and their verdict must be in favor of any and all the defendants in whom no malice or intent to injure the plaintiff was shown to exist at the time of the writing of said letters. This application for instruction was rejected, and the defendants excepted ; and this ruling of the court is assigned as error.

This request to declare the letter of the 13th of February, 1894, a privileged communication, had nothing, either of law or fact, to support it. In the first place, that letter is not the libel declared on ; it is only a part of the evidence to show the authority, aid and assistance furnished for composing and publishing the libel set out in the declaration. In the next place, the occasion of the publication furnished no privilege to any of the parties. The writing complained of was not composed and published in pursuance of any right or duty, legal or moral, private or public, on the part of the defendants. The defendants were under no obligation to furnish the data or information requested by Brown to be published in “ The Progressive Age; ” or to enable him to compose and publish the libellous article complained of. By furnishing the data requested, knowing the purpose for which it was to be used, they incurred the responsibility for the act of Brown, to the extent of the authority, aid and assistance given. If, however, the letters written by Leetch to Brown, could be regarded as privileged as between themselves, they certainly could not furnish matter to be entitled to privilege that was intended to be published in a public journal or periodical. The privilege, if it were conceded to exist as to the letters of Leetch, could not extend to the publication of the contents or substance of those letters in a public journal or periodical, issued for circulation among the public generally. Phil., Wilm. & Balto. R. Co. v. Quigley, 21 How. 202. In such publication the libellous article would lose all the right to privilege which it might otherwise claim. Without the protection of privileged communication, the publication of a libel is a wrongful act, presumably injurious to the party to whom it relates, and in the absence of legal excuse gives a right of recovery irrespective of the intent of the defendant who published it; and this although he had reason to believe the statement to be true, and was actuated by an honest or even commendable motive in making the publication. Holmes v. Jones, 147 N. Y. 59. The question of damages depends upon other considerations. It is clear, therefore, the court was right in rejecting the thirteenth prayer of the defendants.

There is a question raised in this court, by assignment of error, which was not raised or passed upon in the court below; and that is as to the sufficiency of the verdict of the jury. As we have already stated, the action was brought against five defendants, and they all pleaded jointly the general issue plea of not guilty. The verdict was rendered against three of the defendants, and there does not appear to have been any finding at all as to the other two. This was a defective verdict, and if a motion in arrest of judgment had been made, it would have been set aside. But there is no such motion made, and the defendants against whom the verdict was found were content to allow judgment on the verdict to be entered against them. After suffering judgment to be entered on the verdict without question, it is too late now, in this court, to raise the question as to the validity of the verdict and judgment thereon. Every intendment must be made in support of the verdict and judgment. After judgment entered, it may well be presumed that the defendants who were not included in the verdict of guilty were intended to be found not guilty; as in the cases of Gulf, etc., R. Co. v. James, 73 Texas, 12, and Lockwood v. Bartlett, 7 N. Y. Supp. 481. Or, it might well be presumed, that on the plaintiff taking judgment against the three defendants found guilty on the general issue, that he, by implication and intendment, discharged the other defendants by way of nolle prosequi, which could be entered as well after as before verdict, and even after judgment.

“ In cases of tort against several defendants, though they all join in the same plea, and are found jointly guilty, yet the plaintiff may, after verdict, enter a nolle prosequi as to some of them, and take judgment against the rest. The reason is said to be, that the action is in its nature joint and several; and, as the plaintiff might originally have commenced his suit against one only, and proceeded to judgment and execution against him alone, so he might, after the verdict against several, elect to take his damages against either of them.” Minor v. Mechanics’ Bank, 1 Pet. 46, 74; Ward v. Taylor, 1 Pa. St. 238. There can be no question of contribution as between the defendants, if that were supposed to be material.

Upon the whole case, we find no ground for reversal of the judgment, and the same must be affirmed; and it is so ordered. Judgment affirmed.

Case Details

Case Name: Washington Gas Light Co. v. Lansden

Court Name: District of Columbia Court of Appeals

Date Published: Dec 9, 1896

Citation: 9 App. D.C. 508

Docket Number: No. 683

Court Abbreviation: D.C.