Williams Printing Co. v. Saunders

113 Va. 156 | Va. | 1912

Keith, P.,

delivered the opinion of the court.

This is a writ of error to a judgment of the Law and Equity Court of the city of Richmond, rendered in an action for libel brought by Clyde Saunders against Rufus C. Williams and Roy H. Williams, partners doing business as the Williams Printing Company, and Adon A. Yoder. There was a verdict and judgment for the plaintiff for $1,600.

During the progress of the trial the defendants reserved a number of exceptions to the rulings of the court, the propriety of which will be the subject of inquiry.

The declaration contains three counts. The first two set forth as libels certain publications which were printed and published by the Williams Printing Company and of which Yoder was the author. The third count is under the statute for insulting-words, and sets forth the publications mentioned in the first and second counts and one peculiar to itself, entitled “Buying Votes in Manchester and Richmond.”

There was no demurrer to the declaration, and the only plea was that of not guilty; but the defendants, at the request of the plaintiff, stated their grounds of defense as follows: (1) Not guilty; (2) privileged communication; (3) fair or proper criticism or comment upon the plaintiff when running for public office or position; (4) no malice; and (5) erroneous construction of the words of the publication. No plea of justification was filed; the defendants deeming it unnecessary so to do.

Numerous exceptions were taken to the introduction of evidence offered by the defendant in error, and admitted by the court, despite the objection of plaintiffs in error. They may be considered under three heads: (1) Articles published in The Idea of and concerning the defendant in error, Saunders, prior to the institution of the suit, other than those mentioned in his declaration; (2) articles published after the institution of the suit of and concerning the defendant in error; and (3) articles published which did not refer to defendant in error, but to others, and were admitted as tending to prove the general scope and character ■of The Idea, as edited by Yoder, and printed and published by the Williams Printing Company. All of these articles, embraced in the three classes, were admitted by the court for the purpose •of showing malice, and for that purpose only, and the jury were instructed that the plaintiff could not recover for any words published, either before or after the bringing of the suit, except the words declared upon; and with reference to those publications concerning other members of the community than the plaintiff, the jury were told that they might be considered as showing a reckless indifference to the rights of others, and as furnishing a basis for the inference that they were malicious in fact, but that before such other publications could be considered the jury must be satisfied from the evidence that they were false and defamatory.

In Newell on Libel and Slander, at p. 331, it is said: “Any other words written or spoken by the defendant of the plaintiff, either before or after those sued on, or even after the commencement of the action, are admissible to show the animus of the defendant, and for this purpose it makes no difference whether the words tendered in evidence are themselves actionable or not, ■or whether they be addressed to the same party or to some one else. Such other words need not be connected with or refer to the defamatory matter sued on, provided they in any way tend to show malice in the defendant’s mind at the time of publication. And not only are such other words admissible in evidence, but also the circumstances attending the publication, the mode •or extent of their repetition. The more the evidence approaches proof of a systematic practice of libeling or slandering the plaintiff, the more convincing it will be.”

Odgers on Libel and Slander, pp. 270-73, inclusive, is to precisely the same effect; and adds: “The jury no doubt should be told, whenever the other words so tendered in evidence are in themselves actionable, that they must not give damages in respect of such other words, because they might be the subject matter of a separate action; but the omission by the judge to give such a caution will not amount to a misdirection. But the defendant is always at liberty to ..prove the truth of such other words so-given in evidence, for he could not plead a justification as to-them, as they were not set out on the record.”

“It must be remembered,” says Odgers, “that this evidence-of former or subsequent defamation is only admissible to determinequo animo the words sued on were published; that is, they are only admissible when malice in fact is in issue. If there is no question of malice, no such other libels would be admissible, unless they had immediate reference to the libel sued on; and even then it would be better that they should be set out in the statement of claim. * * * And it is now clear law that whenever the question of malice or bona fides is properly about to be left to the jury, evidence of any previous or subsequent libel is admissible, even though it be more than six years prior to the libel sued on; and even though a former action has been brought for the libel now tendered in evidence and damages recovered therefor. The law is the same in America.” See Russell v. Macquister, 1 Campbell 49, n.; Camfield v. Bird, 3 C. & Kir. 56; 2 Starkie on Slander, p. 55; Pearson v. Lemaitre, 5 M. & Gr. 719-

Objection was made to questions asked the defendant in error, as follows:

“Q. Has that decline in your business been marked or otherwise? A. Very perceptible, commencing in July. The first notice the books show that trade had fallen off was in July.

“Q. What, in figures, was the amount of that diminution?' A. About $4,000—three thousand, nine hundred and some dollars.

“Q. Can you state whether there was any other reason, either known to you or reasonably to be conceived by you, for that diminution, other than the publication of this libel? A. I know of none whatever, as I have lost no contract, and the contract work was excluded from that calculation. It was taken from the regular current trade work.”

The words alleged and proved to have been used by the defendant must have been injurious to the plaintiff’s reputation, and are, therefore, actionable per se; and the plaintiff may recover a verdict for substantial damages without giving any evidence of pecuniary loss. Odgers on Libel and Slander, sec. 289. And at page 314 the same author says: “Loss of custom or diminution of profits * * * is general, not special damage, and can only, therefore, be proved where the words are actionable-per se.”

And in 25 Cyc., p. 505, it is said: “When the defamation complained of is one affecting plaintiff’s business, from which the law presumes general damage, evidence of general diminution or loss of business is admissible in proof of general damages.”

It is further to be observed here that the jury were instructed not to award the plaintiff speculative or conjectural profits, but only such sum, if any, as they believe from the evidence will compensate him by way of general damage for the injury, if any,, occasioned by the publication.

Before considering the instructions to the jury, we shall consider two propositions of law—first, is it permissible for the defendant to an action for defamation such as that under consideration to allege and prove, under the plea of not guilty, that the words spoken or written were true, or must he plead a special plea of justification?

The plaintiffs in error rely, with confidence, upon the case-of Commonwealth v. Morris, 1 Va. Cas. (3 Va.) 176, in support of their contention that the plea of justification is not necessary in this State, where the publication concerns a candidate for office. That case was an information filed against the defendant,, who pleaded not guilty, on which the issue was joined, and tendered two special pleas, to the effect that it was lawful for him to write and publish the paper writing charged in the information to have been written and published by him, because he saith that all the charges therein set forth were true, and all the acts therein charged to have been done and committed were in fact and truth done and committed. The second plea was also one of justification, and differed only from the first in that it recited that the-plaintiff, at the time the writing in question was written and published, and before that time, was a public officer—to-wit, the-high sheriff of the county; and then set forth that the charges were true as in the first special plea. The circuit court adjourned to the general court, and requested its decision upon the following points: 1st. Whether the defendant to an indictment or information for a libel can in all cases plead the truth of the libel in justification? 2d. If not, whether he can give the truth of such libel in evidence on the plea of not guilty. 3d. Whether in this particular case the defendant can, in either way, and which, give evidence of the truth of the matters stated in the writing alleged to be libelous. .

The general court held as follows: “It is the unanimous opinion of the court that, by the common law, truth is no justification of a libel, and cannot as such be given in evidence on-an indictment or information for the offense. In this Commonwealth, the second article of the Bill of Rights having declared ‘that all power is vested in, and consequently derived from the people, that magistrates are their trustees and servants, and at all times amenable to them/ it follows, as a necessary consequence, that the people have a right to be informed of the conduct and character of their public agents. In the case of an indictment or information for a libel against public officers, or candidates for public office, truth is a justification, and may be given in evidence as such under the general issue, and this forms an exception to the general rule established by the common law, but even in such case any libelous matter which does not tend to show that the person libeled is unfit for the office cannot be justified because it is true.”

In the note to that case it is said that “Although, in a criminal prosecution for a libel, the truth forms no justification in England, in any case whatever, yet, in mitigation of the fine, it may be shown to the court, after the verdict rendered. In Virginia, the truth may be given in evidence before the jury in mitigation of the fine, because here it is rendered, by act of Assembly, the duty of the jury to assess the fine.”

It is admitted that the plaintiff, Saunders, was a candidate for office, and within the class referred to in Commonwealth v. Morris, and that the defendants are entitled to its protection, if that case is to be considered as establishing the law of this State in actions for defamation.

Since that case was decided more than a century has elapsed, and, so far as we have been able to discover, it is the only reported case in our books of a criminal libel. Many civil suits for damages for defamation, however, are to be found in our reports, covering almost every conceivable aspect of the subject, and Commonwealth v. Morris appears never to have been cited. In Minor's Law of Crimes it is referred to, under the head of “Offenses Against the Public,” at page 165. It is reported also in 5 Am. Dec. 515, with no other comment than the citation of Commonwealth v. Clapp, 4 Mass. 163, reported also in 3 Amer. Dec. 212, where a different conclusion was reached. Indeed, wherever1 we have found any mention made of Commonwealth v. Morris, in digests, encyclopedias, or text-books, it has always been with reference to a criminal prosecution. Either that case must be held to apply only in prosecutions by the Commonwealth, or its authority must be considered as completely overruled by subsequent decisions of this court.

In Bourland v. Eidson, 8 Gratt. (49 Va.) 27, decided in 1851, all the Virginia authorities upon the subject of defenses in actions of slander were considered. Judge Allen, speaking of Cheatwood v. Mayo, 5 Munf. (19 Va.) 16, said: “The defendant offered in mitigation of damages, and not by way of justification, to prove facts which, if they did not altogether, almost established the truth of the charge. He could not offer such evidence in bar of the action, because he had failed to file the plea of justification. But if permitted to introduce it in mitigation of damages, the same impression would be made on the minds of the jury, and the plaintiff could not know what defense he was to meet. The case therefore establishes that evidence falling short of a full justification, but tending to prove the truth of the words charged, and leaving that impression on the minds of the jury, is inadmissible, notwithstanding the declaration that it is offered in mitigation of damages, and not by way of justification.”

The case of McAlexander v. Harris, 6 Munf. (20 Va.) 465, was to the same effect.

The syllabus of the case of Bourland v. Eidson, supra, is that “ In an action of slander, under the plea of not guilty, the defendant may, in mitigation of damages, prove any facts as to the conduct of the plaintiff, in relation to the transaction which was the occasion of the slanderous language complained of, which tend to •excuse him for uttering the words, provided the facts do not prove or tend to prove the truth of the charge complained of, but in fact relieve the plaintiff from the imputation involved in it.”

Language could not be used more strongly to establish the proposition that the truth of the charge cannot be shown under the plea of not guilty.

In Newell on Slander and Libel, p. 651, it is said: “The defendant cannot prove, under the plea of the general issue, at common law, the truth of the defamatory words, either in bar of the action or in mitigation of damages. If he desires to confess the publication of the defamatory words and avoid the consequences by asserting the truth of the same, he can do so under the plea of justification. The truth of the defamatory words is, if pleaded, a complete defense to any action of libel or slander, though alone it is not a defense in a criminal trial.”

The same author, at p. 652, says: “A justification must always be specially pleaded, and with sufficient particularity to enable plaintiff to know precisely what is the charge he will have to meet. If the libel makes a vague general charge—as, for instance, that the plaintiff is a swindler—it is not sufficient to plead that he is a swindler. The defendant must set forth the specific facts which he means to prove in order to show that the plaintiff is a swindler. The plea is always construed-_strictly against the party pleading it. It must justify .the whole_of the words to whicíTit is pleaded, and set forth factsjssuably.”

It would seem, therefore, to be a dangerous plea, and one not lightly to be resorted to. It has the further effect, if not maintained, of being a strong circumstance going to establish malice, and it is not to be wondered at that cautious and astute counsel, in difficult or doubtful cases, do not rely upon it.

See 1 Starkie on Slander, 466, where the law is thus stated: “If the defendant means to rely on the truth of that which he has published, either in bar of action or mitigation of damages, he must plead it specially.”

In Townshend on Slander and Libel, note to sec. 211, it is said: “The defense of truth must be pleaded, and cannot be given in evidence under the general issue, either in bar or in mitigation of damages”; and in support of this proposition there is a great array of authorities, English and American.

In 4 Minor’s Inst. (1st. ed.), Pt. 1, at page 384, it is said: “It seems clear, therefore, that the legislature designed to change the previous policy, as expounded in those cases of Brooks v. Calloway and Moseley v. Moss, and to allow and require the truth to be pleaded specially in bar of the action, as at common law. If so, the truth of the specific accusation cannot be given in evidence under the general issue in mitigation of damages, and much less can facts of bare suspicion.” See Underwood v. Parks, 2 Strange 1200, and the Virginia cases to which we have already referred; Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; 1 Barton’s L. Pr., sec. 126; Hogan v. Wilmoth, 16 Gratt. (57 Va.) 80.

Authorities might be multiplied almost without limit to the same effect, but why should authority be cited when the controversy is covered by statute?

In the Code of 1849, p. 669, there was first enacted a statute which has passed into our present Code as section 3375, which declares that “In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and (after notice in writing of his intention to do so, given to the plaintiff at the time of or for pleading to such action), may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action. * * *”

The language used, that “the defendant may justify by alleging and proving that the words spoken or written were true,” plainly intends that the truth shall be specially pleaded, for if the legislature had intended that the proof should be given in under the plea of not guilty, there was no occasion to require that it should be alleged.

We conclude, therefore, that in this State, in an action of defamation, the truth of the publication, if relied upon by the defendant, either as a bar or in mitigation of damages, must be shown under a special plea of justification, and not under a plea of not guilty.

The second contention upon the part of plaintiff in error is that, as Saunders was a candidate for office, the occasion of the publications complained of was privileged; and that may be conceded. A candidate for office is considered as putting his character in issue, with respect to his fitness or qualification for the office he seeks, and publications of the truth on this subject, with the honest intention of informing the people, are not libels.

“A privileged communication is one made in good faith upon any subject-matter in which the party communicating has an interest, or in reference to which he has, or honestly believes he has, a duty to a person having a corresponding interest or duty, and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable.” Newell on Libel and Slander, p. 388.

Privileged communications are of four classes: 1st, where the author or publisher of the alleged slander acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests; 2d, anything said or written by a master in giving the character of a servant who has been in his employment; 3d, words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used; 4th, publications duly made in the ordinary mode of parliamentary proceedings.

The privilege may constitute a bar to an action—for instance, words used in the course of a legal or judicial proceeding, or publications made in the ordinary mode of parliamentary proceedings; but the privilege with which we are here to deal, which grows out of the fact that the plaintiff, Saunders, was a candidate for office, is known as a qualified privilege.

In all actions for defamation of character, whether by libel or slander, in order that damages may be recovered, malice must be alleged and proved. Where the communication is not privileged malice may be presumed, but where the communication is privileged, even though it be but a qualified privilege, there is no presumption of malice, and in order to recover the plaintiff must prove actual malice or malice in fact. Whether or not a communication, oral or' written, is privileged, is a question for the court; and it is for the jury to say whether or not the privilege has been abused—that is to say, whether or not the publication was actuated by a malicious motive. Chaffin v. Lynch, 83 Va. 106, 1 S. E. 803; Tyree v. Harrison, 100 Va. 540, 42 S. E. 295.

Publications of the truth regarding the character of a public officer, and relating to his qualifications for such office, made with intent to inform the people, are not libelous; but the publication of falsehood and calumny against public officers and candidates for public office, is a very high offense. Commonwealth v. Clapp, 4 Mass. 163.

“The term ‘privileged’,” says Newell on Slander and Libel, at p. 566, “as used by the judges, does not mean privileged by reason of the occasion, in the strict legal sense of that term. The meaning really is that the words are not defamatory—that criticism is no libel. If such criticism was privileged in the strict sense of the word, it would in every case be necessary for the plaintiff to prove actual malice, however false and however injurious, the strictures may have been; while the defendant would only have to prove that he honestly believed the charges himself in order to escape all liability; and this clearly is not the law.”

“Criticism and comment on well known or admitted facts are very different things from the assertion of unsubstantiated facts. A fair and bona fide comment on a matter of public interest is-an excuse for what would otherwise be a defamatory publication. The statement of this rule assumes the matters of fact commented upon to be somehow ascertained. It does not mean that a man may invent facts, and comment on the facts so invented in what would be a fair and bona fide manner, on the supposition that the-facts were true. If the facts, as a comment upon which the publication is sought to be excused, do not exist, the foundation fails.. There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing' to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct. To state matters which are libelous is not comment or criticism.” Newell, p. 568.

“So long as a writer confines himself to discussing the public conduct of public men, the mere fact that motives have been unjustly assigned for such conduct is not of itself sufficient to destroy this defense. A line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives, unless there is so much ground for the imputation that a jury shall find not only that he had an honest belief in the truth of his statements, but that his belief was not -without foundation.” Newell, p. 572.

While discussing the general principles of the law of libel and slander pertinent to the case in hand, it will not be improper to refer to the “liberty of the press,” which has been much urged in argument.

The press has no exclusive privilege. It does not matter by whom the report is published; the privilege is the same, as a matter of law, for a private individual as for a newspaper. Newell, p. 552.

Speaking on this subject, Mr. Cooley says: “A candidate for public office does not surrender his private character to the public, and he has the same remedy for defamation as before; and the publication of false and defamatory statements concerning him, whether relating to his private character or public acts, is not privileged. * * *

“Liberty of the press is not license, and newspapers have no privilege to publish falsehoods or to defame, under the guise of giving the news. It is held that the press occupies no better position than private persons publishing the same matter; that it is subject to the law, and if it defames it must answer for it.” Cooley on Torts (3d eel.), 443.

By “liberty of the press” indeed is merely meant that the publications in the press shall not be subject to an antecedent censorship, but, in the language our bill of rights, “any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right.”

We come now to the consideration of the instructions asked by plaintiffs in error and rejected by the court, and those given to the jury by the court, to which the plaintiffs in error excepted.

Instruction No. 1, which was refused, was approved in Gatewood v. Garrett, 106 Va. 552, 56 S. E. 335, as applied to the facts appearing in that case, in which it seems that the evidence was not made a part of the record by proper bill of exceptions; but as instructions are to be considered in the light of the facts proved, it may well be that an instruction proper upon one state of facts would be altogether improper upon a different state of facts. Then, too, the value of a case as a precedent is affected by the consideration that the precise point for which it is relied upon as authority was presented in argument and considered by the court. The opinion says that it was not denied in that case that the instruction asked for was a correct statement of the law; and comparing the facts befóle us with those existing in Gatewood v. Garrett, no two cases could be more dissimilar.

Instruction No. 3, it is claimed, is also supported by the opinion in Gatewood v. Garrett, supra, and we accept as law the instruction as it appears in Gatewood v. Garrett. It declares that the conduct of candidates for public office is open to public criticism, and it is for the interest of society that their acts may be fully published with fitting comments or strictures; but one of the differentiating features between the case before us and Gatewood v. Garrett is that, while the comments and strictures in that case were fitting— that is to say, suitable and proper to the occasion—those set out in the declaration in this case transcend the bounds of propriety prescribed by law, are in excess of the right and duty of a citizen to make complaint of any misconduct or act showing a lack of qualification or fitness for office of a candidate, and attribute moral turpitude to the defendant in error.

The second instruction asked for and refused is, we think, sufficiently covered by instruction No. 15, which was given by the court.

Instruction No. 4 was properly refused, because it left it to the jury to say whether or not the publications were true, when, there being no plea of justification in the case, they are conclusively presumed to be false; and, secondly, that their verdict should be for the defendants if Yoder’s expressed belief was justified by the facts as the jury found them, or was such as he might reasonably and justly hold from such facts—“then the jury must hold that the occasion was privileged.”

The law is, as we have seen, that it is for the court to say whether or not the occasion is a privileged one, and, if it be one of privilege, whether a qualified or an absolute privilege, and by its instructions to guide the jury to a right conclusion. As the privilege with respect to the criticism of public officers, or candidates for public office, does not extend to the imputation of moral delinquency with reference to their private character, such imputations are libelous, and the party making them may be held liable therefor in a suit for slander, unless he can prove the charges to be true. In such case it is not sufficient to prove that the party publishing had good reason to believe and did believe them to be true, as a publication of this character is not even conditionally privileged. From the publication of such libelous charges the law implies malice, as well as damages to the plaintiff; and the jury may, therefore, on proof of the publication only, render a verdict for substantial damages. Sweeney v. Baker, 13 W. Va. 158, 31 Am. Rep. 757. And just here we will state that this case is one of unusual authority. It was an action for libel upon a man who was a candidate for the House of Delegates of West Virginia. The opinion was delivered by a judge of great distinction, and is a mine of learning and sound reasoning. It cites all of the Virginia cases upon the subject prior to the creation of the State of West Virginia, such cases being as binding authority in the new State as in the old. The case, therefore, may be accepted without hesitation as one of the highest authority.

Instruction No. 5 depends upon No. 4, and must fall with it.

No. 6, while rejected in the form in which it was offered, was given with an addendum in No. 10 of the instructions by the court, which is, we think, a correct and sufficient statement of the law.

Instruction No. 7 was properly refused, if for no other reason, because there is nothing in the evidence which would have warranted the jury in reaching any such conclusion as the instruction suggests.

We are of opinion that the cases and text-books consulted establish the following propositions:

1. That the truth of defamatory words, written or spoken, cannot be shown under the plea of not guilty, but that there must be a plea of justification.

2. That it is the right and duty of the citizen to criticise public officers and candidates for public office, and that proper criticism

is privileged, and imposes no liability unless express malice be shown; that it is for the court to say whether or not the occasion is privileged, and for the jury to say whether or not it has been abused.

3. That, while proper criticism of the conduct or fitness of public officers and candidates for public office is privileged, the privilege does not extend to the imputation of moral delinquency to such persons, and that he who attacks their private character and attributes to them moral turpitude must stand prepared to prove the truth of his statement under a plea of justification; otherwise the presumption is that the defamatory language, written or spoken, is false, and will, -without more, support a verdict for substantial damages.

4. That the press enjoys no special privilege or immunity, but stands in all respects, before the law, upon the same footing as the great body of citizens.

For these reasons we are of the opinion that the judgment should be affirmed.

Affirmed.