Osborne v. Troup

TobkANCE, J. The plaintiff brought an action for libel against the defendants, as publishers of a newspaper, and, the case was tried to the court and judgment rendered in favor of the plaintiff for substantial damages. The court below made a finding of facts, and the case comes before us upon an appeal by the defendants. In the reasons of appeal several errors are assigned. The first is general in its nature, and under the statute cannot be considered. The others will be considered in the order stated in the reasons of appeal. The first of the claimed errors is thus stated: — “ The court erred in rendering judgment for the plaintiff on the *491 finding, in the absence of any evidence showing that the plaintiff bad ever requested the defendants to mate a retraction in the manner provided by statute, and in the absence of any allegation or proof of special damages.” The record shows that no special damages were alleged or attempted to be proved. It also shows that the plaintiff never requested the defendants to make any retraction. The court does however find, as a matter of fact, and upon all the evidence in the case, “ that there was malice in fact in the publication of the article complained of, and that said article was neither wholly nor substantially true that “the motive of such publication was wrong, improper and unjustifiable ; ” and “ that there was not a careful or reasonable investigation as to the real facts, and no sufficient, occasion or excuse for such publication, and that it was recklessly published in disregard of the plaintiff’s rights and of the consequences that might result to him.” The published article complained of charged in substance that the plaintiff, in order to obtain the property of his wife’s mother, persuaded her to make a will in his favor, and then, lest she should change or destroy the will, drugged her, and while she was unconscious from the effect of the drugs, caused her to be confined as a lunatic in an asylum. The defendants, under section 1116 of the General Statutes, gave proof of intention. The court finds, from the evidence in the case, that the charges contained in the article were not true, and also “ that there was malice in fact in the publication of the article complained of.” Assuming then for the present that the court has found upon proper evidence the existence of “ malice in fact,” within the meaning of the statute above referred to, it is somewhat difficult to see how the court erred in rendering judgment for the plaintiff for general damages. By the very terms of the statute, if the defendant gives evidence of intention, the plaintiff is barred of his right to recover general damages only in case he fails to prove “ malice in fact ” or a failure to retract upon request. If he proves “ malice in fact ” he is entitled to recover general damages, notwith *492 standing the fact that the defendant gives proof of intention, or the fact that no retraction has been demanded, or the fact that special damages have neither been alleged nor proved. Indeed, we perhaps do the defendant’s counsel an injustice in supposing they make the claim in the form in which it appears in the reasons of appeal. In their brief it appears in this form : — “Upon the finding of the court, and in the absence of any request on the part of the plaintiff for a retraction, and of any allegation or proof of special damages, and there being no evidence to show malice in fact ■except the inference drawn ly the court, as stated, was the plaintiff entitled to a judgment ? ” This form of the claim assumes that “ malice in fact ” has not been proved. This is entirely different from the error assigned in the reasons of appeal, unless we assume that the former is but an amplification of the latter, and perhaps this is the fairest way to regard the matter. This assumes that the plaintiff has failed to prove “ malice in fact.” If this assumption is correct, then undoubtedly the court erred in rendering judgment for the plaintiff. If it is not correct, if the court has correctly found upon proper evidence the existence of “ malice in fact,” then the court did not err in rendering judgment under the circumstances as claimed. This leads to the consideration of the next reason of appeal, which is thus stated: — “ The court erred in finding that the defendants were guilty of malice in fact, upon the facts found by the court.” The court below has found that at no stage of the case did the plaintiff offer any evidence to show that the defendants were actuated by malignity, spite or hatred towards the plaintiff, nor does it find that this was the case in point of fact. But the court further finds as follows: — “ But that the motive of such publication was wrong, improper and unjustifiable, I do find, as a conclusion of fact from evidence derived from the character of the published article, and from the fact that in my judgment the article itself, and the evidence offered of the circumstances attending its preparation and publication, prove that there was not a careful or rea *493 sonable investigation as to the real facts, and no sufficient occasion or excuse for such publication, and that it was recklessly published in disregard of the plaintiff’s rights and of the consequences that might result to him.” This we feel bound to regard as a finding of the existence of “ malice in fact ” within the meaning of our statute, as it has been construed in the following cases: Moore v. Stevenson, 27 Conn., 14; Hotchkiss v. Porter, 30 id., 414; Wynne v. Parsons, 57 id., 78. In the case at bar the question whether such malice existed was a question of fact, to be decided by the trier. The conclusions drawn by the court below, that the motive of such publication was wrong, improper and unjustifiable; that there was no careful or reasonable investigation of the facts; that there was no sufficient occasion or excuse for such publication ; and that it was recklessly made, in disregard of the plaintiff’s rights and of the consequences that might result to him, must all be regarded, under the circumstances, as conclusions of fact. The evidence was of such a nature that the trier must determine, not only the facts which it established, but also the inferences to be drawn from such evidence and such facts. No general rule of law is applicable in such a ease. Men equally honest, fair-minded and capable, might possibly draw different inferences as to whether there had been a reasonably careful investigation of the facts before publication, or whether there was a sufficient occasion or excuse for the publication, or whether it was made in reckless disregard of the rights of others. In such cases the trier or triers must of necessity determine whether “ malice in fact ” within the meaning of the statute existed or not, and the conclusions of the trier in such cases cannot, as a general rule, be reviewed as to the question whether it was or was not correctly drawn from the evidence and facts found. Farrell v. Waterlury Sorse R. R. Co., (ante, p. 239.) In accordance with these views the existence of malice in fact was held to be a question of fact, to be found by the jury, in Moore v. Stevenson, supra. If however the question were one of law, which we could *494 review, we think the facts found justify the conclusions to which the court below came. The real contention however of the defendants on this part of the case, as we gather from the brief, seems to be, that there was no legal evidence before the court from which the conclusions aforesaid could be drawn. The claim seems to be that the court below drew its inference chiefly, if not wholly, from the language of the publication itself. It is said in the brief: — “It certainly was not the supposition of the legislature which passed that statute, to leave it to the courts to infer from the language of the publication malice in fact, unless there was evidence to prove such malice.” Again: — “ If the court can infer malice in fact from the mere language of the article complained of, then it is equivalent to saying that the court may in all cases find a judgment for the plaintiff whenever the language is actionable in itself.” If the record furnished any foundation for such a claim it would be entitled to our serious consideration, but it has no foundation in fact. The record shows that the conclusions of the court were based upon “ all the evidence in the case,” upon “ evidence derived from the character of the published article,” and upon “evidence offered of the circumstances attending its preparation and publication.” These “ circumstances” were shown with minuteness and particularity. The language of the published article was only a part of the evidence, and, in connection with the other evidence, was a legitimate part of the evidence which the court might consider. In speaking of the case of Moore v. Stevenson, 27 Conn., 14, this court, in the case of Hotchkiss v. Porter, 30 id., 421, said: — “ By that decision it was settled that, under the act, the right of the plaintiff to recover general damages shall not depend on the mere legal presumption of improper and unjustifiable motive, derived from the fact of publishing that which is untrue, but upon the question whether such improper and unjustifiable motive has been proved or disproved, as a matter of fact, by evidence adduced for that purpose on *495 tbe trial; that tbe legislature did not intend to prescribe any new rule as to tbe kind or degree of malice, or as to the character or kind of evidence by which the existence of improper and unjustifiable motive should be proved; that all they intended was that the fact of improper and unjustifiable motive should appear in proof, and not be presumed; but whether in proof from the character of the libel, the res gestee or circumstances attending its publication, of from evidence of other facts tending to show the real motive of the publisher, they did not intend to say.” The conclusions of the court below thus seem to be based upon the kind of evidence which this court has said was legitimate and proper evidence. The court below has thus, upon proper evidence, found as a fact the existence of “ malice in fact,” and, this being so, it did not err in finding the defendants guilty of “ malice in fact,” and it did not err in rendering judgment for the plaintiff for general damages. The other errors alleged relate to the rejection and admission of evidence. The first relates to the rejection of the testimony of Mrs. Jane Forbes. The plaintiff had produced before the court as witnesses all the persons now living, and within the jurisdiction of this state, (including four physicians,) who had the charge of Mrs. Tyler, the mother-in-law of the plaintiff, during a period of mental derangement. They all testified to the symptoms of mental derangement manifested by her, which they considered evidences of insanity of the type of acute melancholia. The defendants, to rebut this evidence, offered no testimony from a physician or expert, but offered the testimony of Mrs. Forbes. She had known Mrs. Tyler for several years, but had not seen her at all during her sickness and derangement. She had on some occasions taken care of the sick in her own family, and had had for a few weeks the care of a person suffering from the morphine habit. Her testimony as to the symptoms manifested by the patient suffering from the morphine habit, whom she had attended for a few weeks, and her opinion based upon her experience as to the effect of morphine and other drugs upon the human system, was offered “ for the purpose of *496 showing that the symptoms of acute melancholia were different from those described by the plaintiff and his witnesses, and also for the purpose of showing that the symptoms which Mrs. Tyler had manifested in her sickness were like those of the victim of the morphine habit whom Mrs. Forbes had attended.” Mrs. Forbes was really called as an expert, and the main purpose and object in calling her in rebuttal was that she might give her opinion as an expert. It is true that certain questions which did not call for an opinion were asked of her and excluded, but these were merely preliminary questions, and the answers to them would have been useless unless the witness had been allowed to express her opinion upon. Mrs. Tyler’s condition, based in part at least upon such answers. If she ought not to have been allowed to testify as an expert, then the action of the court in rejecting her testimony, as it is stated upon the record, was right. The court has found that she had received no medical education, nor any training or education as a nurse ; that she Aid not know anything about what quantity of morphine, bromide of potassium or chloral, were or would be given in any dose by any physician, and had no other knowledge of the cases to which she referred than any woman of ordinary intelligence might have had under similar circumstances. Under these circumstances the court did not err in rejecting her testimony. The next error alleged is stated as follows : — “ The court erred in rejecting the testimony offered by the defendants to show what took place between the defendants and the plaintiff’s counsel before and at the time of the publication of the retraction.” It appears from the record that the present suit was instituted the next day after the publication of the alleged libel; that immediately after the institution of the suit one of the defendants made an investigation in order to ascertain the truth or falsehood of the published story; that he was informed that Mrs. Tyler had not been drugged, but had been temporarily insane, and was fully advised of her condition *497 when brought to and while at the asylum; and that he opened negotiations with counsel for the plaintiff for a compromise and settlement of the case, and offered as a part of such settlement to publish a retraction. After this testimony had been admitted, the defendants then offered to show what “ was said or passed between themselves and the plaintiff’s counsel concerning the publication of a retraction and the settlement of the whole affair.” This was offered “ for the purpose of its being considered in mitigation of damages, and also for the purpose of showing, in connection with the other testimony which had been admitted, that the defendants were not guilty of malice in fact.” The court on the plaintiff’s objection excluded the testimony. We think this testimony was rightly excluded. The defendants were permitted to show what they did, namely, that they opened negotiations for a compromise and settlement of the case and offered to publish a retraction. What was said in so doing was of no consequence. They were also permitted to show that they did publish a retraction, and to put the published retraction in evidence. This was certainly all and perhaps moi’e than they were entitled to show in regard to this matter, either to mitigate damages or disprove malice in fact. The defendants did not claim on the trial that the ■ plaintiff’s counsel had made any independent admissions or admissions of any kind in their favor during- the negotiations for a compromise and settlement, and if they had, we cannot, in the present state of the record, say that such admissions would necessarily be admissible in evidence against the plaintiff. . Nor does it appear that the defendants made any statements during the negotiations in their own favor that would have been admissible. It was not even claimed on the trial that the rejected evidence would have explained in any way the apparent delay in publishing the retraction. The publication was made October 29th, 1889, and the retraction was published December 30th, of the same year. If it had been shown to have been admissible for the purpose of explaining this apparent delay, still, inasmuch as the court has found that the retraction was published in a reasonable *498 time under all the circumstances, its rejection would have furnished no ground for a new trial. We think the evidence in question was admissible neither in mitigation of damages nor to disprove malice in fact. The last error claimed relates to the admission of the testimony of Dr. Osborne. It appears from the record that after the plaintiff had rested the defendants called Dr. Osborne as a witness and asked him a variety of questions. On cross-examination he was asked by the plaintiff’s counsel certain questions, detailed on the record, which were objected to by the defendants for the reason that they were irrelevant and not pertinent to the direct examination. The court held them to be germane and relevant and admitted the testimony. Afterwards the points in question were testified to more fully and in detail by Dr. Osborne in his testimony in reply, and without objection; and they were material to the case. Therefore, even if it should be conceded that the court erred in admitting the testimony objected to, still its admission cannot possibly have harmed the plaintiff. Moreover we think the court did not err in admitting it. To say the least, it was clearly within the discretion of the court, and we think the discretion was wisely exercised. There is no error in the judgment complained of. In this opinion the other judges concurred.