Graves v. Waller

Ellsworth, J. The question for our consideration, is, should the judge below have charged the jury as claimed by the defendant ? We see no ground of error whatever. There is no pretence, but that the publication, as entire, is libellous and actionable, if it be untrue. Now, to involve this question, the defendant selects a part of the libellous matter, and asks the court to Instruct the jury, that such extract, separate and isolated, is not defamatory. The plaintiff had not claimed, that it was. He had only claimed, that the entire writing was. Hence the defendant showed no occasion or propriety for the charge asked for. He might, with equal propriety, have dissected the publication into as many parts as there are lines, words, or letters; and then asked for a charge that such part was not libellous. This is no way of construing a libellous publication, or any other writing. The parts are generally dependent; each giving character to the other, and to the whole. It was never pretended, that what the defendant said of himself was libellous, though it was true that what the defendant said of his kindness and sympathy to Merwin's family, did, by contrast, make more striking and pungent, the conduct imputed to the plaintiff towards his daughter and her children. The court could not, with any propriety, have charged the jury in a different manner. They were told, they might consider the whole matter together, in connexion with the circumstances proved or admitted, and from the whole, say, whether the writing was libel-lous, according to the definition given. Any other course would have been alike embarrassing to the jury, unjust to the plaintiff, and puerile in the court. There is no complaint that the definition of a libel given to the jury, is not satisfactory and correct. How then, if they have done their duty, can the defendant complain ? It is said further, that it belonged to the court to declare what part of the writing is, and what part is not, libellous. Doubtless it is the duty of the court to construe and interpret an isolated writing, as a whole ; but this is rarely the case with a libel. If the fact be so, the court may declare that a paper, or any part of it, is libellous ; but generally, the question of libel or not, involves more than the writing alone. That may be designedly ambiguous: it may be a story, a caricature, a picture, an innuendo. In such cases, the eolio95 i'¡uium and proof may be all-important; when the whole must be left to the consideration of the jury. Even if the extract selected by the defendant, had been claimed by the plaintiff to be libellous, or had been distinct from the other parts ; even then, it would have been proper for the court to submit the whole to the consideration of the jury, in connexion with the proofs. This is the rule given by this court, in Haight v. Cornell, 15 Conn. R. 75. and likewise by Greenleaf, in 2 Greenl. Ev. 331. We Ro not say, the court might not, had the plaintiff asked it, have stated, that this writing, and parts of it even, was libellous on its face ; but the plaintiff did not ask it, but was willing the whole should go to the jury ; and it would have been absurd for the court to break it into parts, at the request of the defendant. Besides, we see no ground of complaint for the omission in the charge. No damages were given by the jury, for what the defendant said of himself: this is not the libel published, by the defendant, of and concerning the plaintiff. We cannot suppose the jury gave damages because the defendant said of himself, he harnessed up his horses, took two of his beds to Merwin’s house, carried his childrén there, &c. This was not claimed to be libellous, except by its connexion with what follows, which is clearly libellous. It is irrational to suppose — indeed, it is against the legal presumption — that twelve sensible men gave damages against the defendant, for the kind things he said of himself. A different rule prevails in analogous cases. If there be good and bad counts, or good and bad matter in the same count, the presumption, in our courts, is, that damages are given on the good parts. We do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.