Cramer v. Noonan

By the Court, WhitoN, C. J. The motion for a nonsuit, which was made after the evidence on the part of the plaintiff had been given, and the motion in arrest of judgment, were both founded on supposed defects in the declaration. It will be necessary, therefore, to examine the declaration, and ascertain whether it sets out a good cause of action. It contains three counts. The first count (rejecting the inuendoes) sets out the alleged libel as follows: “ Since the postmaster forged sentiments and words for Silas Wright, which he never uttered, no one need suppose that he would be scrupulous about this last publication. He is as versatile as the famous Monroe Edwards in circumventing the law of right; but the Sentinel, in its better and more honorable days, would not have consented to be the tool of a person of so desperate a character.” This count contains a colloquium to the effect that Monroe Edwards was a man of odious character, had committed many frauds and forgeries, and had become notorious for the same, and for the ingenuity practiced in their commission, and had been tried and convicted of the crime of forgery, and imprisoned therefor in one of the state prisons of the state of New York. But there is no colloquium to show who Silas Wright was, nor what was his character or standing. It is true that the declaration contains a statement by way of inuen-do, that he was formerly governor of the state of New York, but as an inuendo can only be resorted to for the purpose of applying the words to a particular subject matter already introduced into the declaration, and cannot enlarge or extend their mean [238] ing; the inuendo, in this case, was misapplied, and must be rejected as surplusage. 1 Starkie on Slander, 421; Van Vechten vs. Hopkins, 5 Johns. R. 220; Thomas vs. Croswell, 7 id. 271; Bloss vs. Tobey, 2 Pick. R. 329. The charge contained in this count, then, is in substance, that the plaintiff had forged sentiments and words for Silas Wright, which he never uttered, and that the plaintiff was as versatile in circumventing the law of right as the famous Monroe Edwards, who was a man of odious character, had committed many frauds and forgeries; had become notorious for them, and for the ingenuity used in their commission, and had been tried and convicted of the crime of forgery, and imprisoned therefor. A libel has been defined to be a censorious or ridiculous writing, picture or sign, made with a mischievous and malicious intent towards government, magistrates or individuals. Steele vs. Southwick, 9 John. R. 215. It has also been defined to be any malicious printed slander, which tends to expose a man to ridicule, contempt or hatred. 5 Binney R. 340. It has also been called a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt and ridicule. 4 Mass. R. 168. Without attempting to give a formal definition of a libel, or to point out the difference between verbal and written slander, it will be sufficient for the purpose of disposing of this case, to apply the well settled principles of the law applicable to cases of this kind. We understand from all the authorities, that a malicious publication which accuses one of a crime, or blackens his character and exposes him to public hatred, contempt and ridicule, is libelous. To accuse a person of forgery without qualification, would be libelous, because forgery is a crime. But the term “ forged ” is not used in the case before us in such a manner as to import a crime; it is applied to sentiments and words, and means no more than this, that the plaintiff had stated that Silas Wright had uttered certain sentiments and words, and that this statement of the plaintiff was false; it does not charge that the defendant knew them to be false. This does not, in our opin [239] ion, come witbin any just definition of a libel. It neither charges a crime upon the plaintiff, nor does it blacken his character or expose him to public hatred, contempt or ridicule. It is to be observed, that the alleged libel does not state what the sentiments and words were, but merely that sentiments and words had been forged by the plaintiff for Silas Wright, which he never uttered. All that a person who read the paragraph would learn, would be, that the plaintiff had imputed certain sentiments and words to Silas Wright, which he never uttered, and this, in our opinion, does not amount to a libel. The other charge contained in 'this count of the declaration is, we think, clearly libelous. The count contains a colloquium setting out the character of Monroe Edwards to be that of a notorious forger, and the words alleged to be libelous are in substance that the plaintiff was as versatile in circumventing the law of right as Monroe Edwards. It was argued by the counsel for the defendant, that the word “ versatile” did not import any breach of morality, and that the paragraph meant no more than that the plaintiff was skillful in circumventing the law of right. This, it was insisted, was not libelous. It may not be libelous to say of one generally, that he is skillful or versatile in circumventing the law of right, but that is not the charge contained in this count of the declaration. The plaintiff is charged with being as versatile in circumventing the law of right, as a person who was a notorious forger, and who had been in prison for the crime of forgery. The character of the plaintiff is held out to the world as-that of a forger. To every one who read the paragraph, and who was acquainted with the character of Edwards, that would be the idea communicated. It is needless to say that this charge is libelous. These observations apply to the second count, which sets out the same words. The third count (after stating that one Lewis Tappan was the proprietor of a certain mercantile agency in the city of New York, for the procurement of information relating to business men and merchants) sets out in substance the following words, “ the plaintiff, as we have been credibly informed, was not long since a spy of that noted abolitionist, Lewis Tappan, on the mercantile community of this city. His slanderous reports nearly ruined some of our best merchants.” We have no doubt that [240] these words are libelous. To charge one in a public newspaper with making slanderous reports in regard to the mercantile community, by means of which some of the best merchants of a city were nearly ruined, would, if the charge was believed, excite against the person charged with making the reports, the strongest feelings of hatred and indignation ; and these feelings would not be at all mitigated if the reports were made to the proprietor of a mercantile agency in New York city. This count, therefore, is clearly good. The bill of exceptions shows that many exceptions were taken to the rulings of the judge at the trial; though they were not all insisted on at the argument. The most material of these which remain to be considered, are those which were taken to the instructions which the judge gave to the jury upon the subject of the damages, and in regard to the nature of the alleged libel. It appears that the judge instructed the jury that they might give any amount of damages up to the amount claimed in the declaration — ten thousand dollars. Since the decision of this court in the cases of McWilliams vs. Bragg (3 Wis. R. 429), and Birchard vs. Booth, not yet reported, we do not suppose it will be contended that the jury have not the power to give exemplary or punitory damages in cases of this nature; and it is only in cases where the- amount of damages awarded by the jury is so great as to show that they were governed by improper motives in fixing the amount, that this court can interfere and set aside the verdict for the reason that the damages are excessive, when the action is one in which exemplary damages can be given. If it should be admitted that the sum at which the judge told the jury they might fix the damages, is so great as to show that the jury would have been governed by wrong motives if they had given a verdict for that sum, and that the judge committed an error, still the verdict shows that the error (if one was committed by the judge) worked no harm to the defendant. The instructions which the judge gave to the jury in regard to the nature of the alleged libel, remain to be considered. We are of opinion that he committed an error in instructing the jury, that the words which charged that the plaintiff had [241] forged sentiments and words for Silas Wright which he never uttered, were libelous per se. We have before stated, that in our opinion this charge was not libelous. If we are correct in our opinion in regard to it, this part of the charge of the judge is of course erroneous. It follows, from our. view of the law applicable to the case, that the judgment of the court below must be reversed.