Bruce v. Reed

Chief Justice Mercur delivered the opinion of the court, January 7th 1884. The defendants are the proprietors of a daily newspaper, called the Commercial Gazette, published in the city of Pittsburgh. This suit is to recover damages for the composing and publishing as editorial in the columns of that paper, an article, reflecting on the plaintiff, which the jury have found to be libelous. The first and second specifications of error are to the rejection of evidence of substantially the same character, offered by the plaintiff. [414] Whether the evidence was properly rejected depends on the liability of the defendants for the conduct of Dr. Palmer, who was one of the editors of the paper. A master is liable for the wrongful act of his servant when the injury is committed by authority of the master either expressly conferred or fairly implied from the nature of the employment, and the duties thereby imposed: 1 Black. Com. 429; Wood on Master and Servant § 279. He is liable for the act of his servant within the scope of his employment, and incident to the performance of the duties intrusted to him, although the specific act of injury be in opposition to the express and positive commands of the master: Id. § 307; Mechanics’ Bank v. Bank of Columbia, 5 Wheat. 326. This may be said to be the settled rule of law applicable to the liability of masters generally for the acts of their agents. The liability of the proprietors of a newspaper for the act of an agent, to whose management they have intrusted the paper is more broad. The proprietor is presumed to have published the libel which appears therein, and in a criminal prosecution therefor, it is no defence for him to show that it was published without his knowledge and in his absence: R. v. Walter, 3 Esp. 21; King v. Gutch, 1 Moody & Malkin 433; Roscoe’s Crim. Ev. 6 Am. ed. 621; Commonwealth v. Morgan, 107 Mass. 199. The material for this libel appears to have been drawn from the fact that a reporter of the paper sought to “ interview ” the plaintiff, and asked his opinion, for publication, on a question of law, which the plaintiff declined to give, and stated reasons therefor. The offers, inter alia, were to prove this conversation, and that it was reported to Dr. Palmer who was in the employ of the defendants, that he had the charge and management of the column in which the article was published, not subject to the supervision of the defendants; that he subsequently wrote, and the defendants published the libel in question; and that Palmer was pecuniarily irresponsible, and is now dead. The defendants objected to the evidence, claiming it to be incompetent as the plea was “ not guilty ” and the only question was that of publication. They made no objection ,to proving the publication of the libelous article, but claimed their liability was restricted to what they actually published. The court rejected both offers. If the defendants gave to Palmer such charge and control of an editorial column, reserving no supervision, he was practically authorized by them to write and publish therein any article he thought proper. The very purpose of his employment was to collect information and write articles for publica [415] tion. If they imposed such duties upon him, and gave him such powers, limited only by Pis discretion, they are liable for injuries resulting from an act of his, clearly incident to the performance of his duties, in the scope of his employment. He stood in their place. If the libel was written under the authority of his employment and in furtherance of their business, they are responsible whether the wrong resulted from his mere negligence or from a wanton and reckless purpose to accomplish the business in an unlawful manner : Howe v. Newmarch, 12 Allen 49; Ramsden v. Boston & Albany R. R. Co., 104 Mass. 117; Hawes v. Knowles, 114 Id. 518; or from his willfulness: Wood on Master and Servant, pp. 576 and 583. If Palmer were still living be might be sued jointly with them for this libel, or he and they might be sued separately : Odgers on Libel and Slander.*157, *294. Every one in any way connected in the publication of a libel is equally responsible for all the damages which flow from that publication: Id. *328. It is true it has been held that express malice in an employee who has written a libel, cannot be invoked to swell the damages against the employer, if ho was ignorant of the publication and not negligent: Detroit Post Co. v. McArthur, 16 Mich. 447: Scripps v. Reilly, 38 Id. 10; Robertson v. Wylde, 2 Moo. & Rob. 101. It was, however, held in Goddard v. Grand Trank Railway Co., 57 Me. 202, that whenever exemplary damages would be recoverable, if the act had been done by the master himself, they are equally recoverable when the act is done by his servant. So in Wood on Master and Servant § 323, it is said, “ in many instances it has been held not only that the master is liable for the wanton and malicious acts of his servant in the execution of the authority given him by the master, but also, that in all such cases the wantonness and malice may be shown to enhance the damages,” citing Hawes v. Knowles, supra. This conclusion flows logically from the ground on which the liability of the master rests. If he so authorizes the act, that he commits it through the agency of another, he cannot claim exemption from any of the legal consequences flowing from the act. If this rule of law is applicable to any employer, we are unable to see why it shall not apply to the proprietor of a newspaper, who employs others to write for its columns. The proprietors do not always reside in the city in which the paper is published. They may be in foreign countries much of their time. They direct as to the general course to be pursued; but do not restrict the writers as to the specific means by which the desired end shall be attained. If the proprietors are asked to give the name of the author of any article, they refuse to do so, and a person aggrieved, as a general rule, has no means of [416] ascertaining the name of the writer. If they are not held responsible for what they cause to be written and published, every person connected therewith may escape those punitive damages which the law frequently imposes. As was said in Barr v. Moore, 6 Norris 385 “the liberty of the press should at all times be justly guarded and protected ; but so should the reputation of an individual against calumny. The right of each is too valuable to be encroached on by the other.” The defendants are charged with having composed, as well as having published, the libelous article. It follows that evidence was admissible to prove, for the purpose of swelling the damages, the careless, reckless or wanton conduct of the employee in writing the article, in execution of authority given him by the defendants. Under their plea of not guilty, the defendants may. prove, in mitigation of damages, the facts and circumstances which induced the writer to erroneously make the charge, provided such facts and circumstances do not tend to prove the truth of the charge made. It follows, from reasons already given, the learned judge erred in charging substantially as matter of law, that if the defendants had no personal knowledge of the article before it was published, and afterwards in good faith, did what was reasonable to make amends and reparation, it was not a case for punitive damages. If the facts were found as stated they were for the jury to consider in mitigation of damages; but they should not be considered alone, as controlling such damages. They should be considered in connection with all the other evidence submitted to the jury justly tending to enhance the damages. We discover no error in the 3d and 4th assignments to correct. The language of the article did not expressly charge any fraudulent or corrupt conduct or motives. In the declaration the plaintiff put his construction on the meaning of the language used. The learned judge charged if the jury found the meaning to be as there averred, it was libelous. The plaintiff has no just cause of complaint with this answer, besides the jury found the language to be libelous. There is no merit in the 5th assignment. Judgment reversed and a venire facias de novo awarded.