Gregory v. Atkins

[248] The opinion of the court was delivered by Prout, J. This is an action on the case for an alleged libel, in which it is insisted by the defendant that the county court made several erroneous decisions, and to which exceptions were taken. The case was tried upon the general issue and notice of special matters of defense. First, as to the admissibility of the deposition of F. A. Wright, which was offered as supporting the issue under the notice and excluded. Matter of justification, to be of any avail or admissible in evidence, must meet and answer substantially, if not exactly, the substance of the libel declared upon. It must answer it in the sense of the prefatory averments and inuendoes of the declar- - ation. When the publication contains a direct and specific libeT ous charge, matter justifying it, as that the truth of the charge will-be relied upon and proved, limits and confines the ¡Darty to proof, upon every principle of pleading, to that very issue, and he cannot go outside or beyond it. Otherwise, there is_involved the absurdity of allowing proof of the truth of another and different charge, which is never admissible. In the present case, that portion of the libelous article, which it is claimed the deposition tends to justify, is a charge of swindling, and the notice in justification sets forth a transaction with the witness which, if proved, justifies it. The allegation of the notice is that, at the time, etc., the plaintiff fraudulently intended to cheat, and in respect to the trade he then entered into, and to which the deposition relates. This allegation of intent is material, and is an allegation of matter of fact, which constitutes the very essence of the offense, and the pleader seems to have so regarded it. Now, the deposition falls far short of showing that fact. Indeed the witness swears that he cannot say but that the plaintiff acted in good faith, and with an honest intent. Non-payment of the claim, it is true, is a fact or circumstance aiding in the proof of the issue to a certain degree, but it is only a step, á single link in the chain of evidence necessary to make out the fact, and of itself does not prove the issue. The court were, therefore, correct in excluding it, the defendant not offering any evidence in aid of it. Second. These views have an ajiiplication, somewhat, to the exception to the decision excluding evidence to prove the plaintiff’s [249] marriage to Ellen Banton. That transaction, if real, is not within the scope and meaning of the libel, which, neither in terms or inference, refers to it. The publication consists of specific charges of acts and conduct, and a justification of acts outside of it does not answer or meet the gravamen or gist of the plaintiff’s complaint. Then again, the plaintiff did not claim to recover under so broad a construction of the libel as the evidence offered implies, but only for charges of particular acts of misconduct, or acts of misconduct of the character charged in the publication. There was no error in excluding this testimony. Third. The charge, it is insisted, was erroneous, and that the court encroached upon the province of the jury. A portion of the article, which is quoted in the exceptions, the court told the jury was libelous if published in the sense alleged, leaving, of course, the meaning to be ascertained by the jury. There being no controversy as to the fact of publication, was the court justified in saying that the article, wherein the plaintiff is charged with being a false minister, regardless of truth and decency, with traitorously turning his back upon his own church, and with inventing and publishing the gravest slanders against that church, etc., was libelous, qualified, as it was, in respect to its sense and meaning ? The plaintiff was a regularly ordained minister of the gospel, and in regular standing in his denomination, and this language seriously touched him in that capacity and relation. It needs no authority to show that imputations of this character are libelous. But it is claimed, and strenuously, that the exception is clearly right, as that question was for the jury, and Dickey v. Andros, 32 Vt., 55, is cited as sustaining the position. That action was case for slander. The language or words “were equivocal, not necessarily or naturally implying” the offense claimed to have been charged. Upon the evidence the court directed a verdict for the defendant', and on exceptions that judgment was affirmed, which the court would have hardly done if the question whether slander or not was wholly for the jury. This is all there is of that case, and inferentially it seems to sustain the view of the county court in this case. But however that may.be, where there is no ambiguity in the language, as in a case where there is an unequivocal [250] charge, acctising one of an infaniou's crime, or of conduct calculated to bring Mm into disgrace, which is injurious and affects him in his situation and station, whether it is libelous or not would seem to bo a question of law, or “ the judgment of law on facts and intent.” If it is not, the case goes to the jury unfettered by any legal rule or guide. Generally they are judges only of the facts, and the action of case for libel is no exception to the rule, which, in respect to civil actiohs-, is universal. Their province, in an action of this character, is to find whether or not the publication was made by the defendant, whether it was with intent to injure the plaintiff, or whether it was malicious and false, as well as to find that its sense and meaning is as set forth in the declaration. These are all elements and matters of fact which enter into and constitute the article libelous; but with these facts ascertained, the legal quality of the article is for the court, and as much so as the language of a written contract, which is always, when unambiguous, a matter of legal construction. If some of the cases mean more than that the questioti, whether a libel or not, is for the court-, and the sense and meaning for the jury, we regard them, upon the facts of this case, as unsound. Starkie, 32T, treating of the criminal división of this subject, says “ the quality of the alleged libel, as it stands -on the record, either simply, -or as explained by averments and innuendoes, is plainly a question of law for the consideration of the court,” and that'this “ position rests not only on precedent-, but legal analogies, and on obvious grounds of reason and experience.” In alluding to the question as arising upon demurrer or writ of error, he remarks that it is plainly one of law, and it must be decided by the court as such. The question, as all are aware, may be raised after Verdict, on motion in arrest, and independent of the finding of the jury. This is wholly inconsistent with the defendant’s theory and claim, that the question is -exclusively for the jury. When the language is ambiguo'us, or susceptible of -a double meaning — one innocent and harmless, the other libelous and injurious — the sense is always for the jury to find, as well as to find -and say whether the innuendoes of the declaration, explanatory of the meaning, are justified by the words ; and it is in this view that the question, whether a libel or not, is for the jury. [251] In Dalloway v. Turrill, 26 Wend., 382, relied upon as supporting the defendant’s view of the law, the question arose upon a charge that the only question for the jury to consider was whether the defendant had been proved guilty of publishing the libel. This instruction was held erroneous, as the jury was not allowed to pass upon the s'ense, intent and tendency of the publication. In the present case, the court submitted the question upon that rule, in effect saying to the jury that that part of the article in question is libelous, provided they found it was published by the defendant in the sense alleged in the declaration. This rule is recognized in the case in Wend., where it is remarked that “the intent must be collected from the words used. Where they have a certain definite meaning, the jury cannot rightfully indulge in conjectures not warranted by the legal import of the words ; but if it is doubtful whether the words impute crime, or may bo satisfied by ascribing to them a meaning which renders them not actionable, then the intent is a fair subject before the jury or “ whenever the words are capable of more than one construction, it is the province of the jury to determine in what sense they are meant.” This was the rule of the county court, and we think it the correct one. 1 Am. L. Cas., 132-137. Woodworth v. Meadows, 5 East, 463 ; Roberts v. Camden, 9 Id., 93 ; Carter v. Andrews, 16 Pick., 1; Graves v. Waller, 19 Conn., 90; Townsend on Slander and Libel, § 284. Fourth, as to the motion in arrest. The declaration consists .of six counts, all declaring upon the same, .or portions of the same libelous article, but the court told the jury that the plaintiff was not entitled to recover on the fourth and fifth .counts, thus throwing those counts out of the case. The third count we think sufficient, as it refers to the inducements and prefatory averments of the first count, and the innuendoes are not inconsistent with them or the language of the libel. Act of 186.5, No. 12. 1 Am. L. Cases, 145. The other counts w.e have not examined critically, and as we should, had it been pointed out wherein it is claimed they are faulty. The motion is overruled. The exception to the charge in relation to the transaction with Herrick was not insisted upon. The judgment is affirmed.