Chaffin v. Lynch

Lewis, P., (after stating the case), delivered the opinion ■of the court. The first question is, whether the declaration is demurrable. It contains but one count, and the demurrer thereto, which the circuit court overruled, was based on two grounds: (1) That the provisions of the statute, under which the action was brought, now contained in the second section of chapter one hundred and forty-five of the Code, 1873, apply only to words spoken, and not to words written or printed; and (2), that, if this be not true, then the action is for defamation at common law, and also for insulting words under the statute, which causes of action cannot be properly blended in one count. The question involved in the first of these propositions was suggested, but not decided, in Moseley v. Moss, 6 Gratt. — 112 — 534, and has not been heretofore adjudicated by this court. We, however, entertain no doubt respecting it. The object of the statute, which was originally passed in 1810, was-the suppression of what in its preamble is termed “the barbarous custom of duelling”; and to effect its object it contained some very stringent provisions. It declared killing in a duel murder in the first degree; and, moreover, disqualified from holding office under the government of the State all persons who should violate its provisions, either by sending or accepting a challenge to fight a duel.. It also prescribed a test-oath; and to provide a remedy for insults which tend to violence and breach of the peace,, wherein the common law was deficient, it was enacted by the eighth section, that “all words which, from their usual construction and common acceptation, are considered as insults, and lead to violence and breach of the peace, shall hereafter be actionable, and no plea, exception or demurrer shall be sustained in any court within this Commonwealth to preclude a jury from passing thereon, who are hereby declared to be the sole judges of the damages sustained.” 1 Rev. Code (1819), p. 584, sec. 8. These provisions of the statute so clearly indicated the intention of the legislature, that in Brooks v. Calloway, 12 Leigh, 466, it was held that in an action under the statute, no plea of justification was admissible. In other words, that for uttering insulting words, no matter whether true or false, there was no justification or excuse; for, said the court, the words “ may be true, and their very truth give venom to the sting of insult.” It was also held in Moseley v. Moss, supra, that although evidence tending to prove the truth of the words used was admissible, yet that it could be admitted only in mitigation of damages. And it would seem to be equally clear, looking to the whole statute and the circumstances under which it was passed, that the intention, in enacting the eighth section, — 113 — was to provide a remedy for all insults occasioned by words, either written or spoken. A different conclusion is not fairly warranted by the terms of the act, nor consistent with its object. The language is “ all words,” of the character described, shall be actionable; and it can hardly be supposed that the legislature, in an effort to suppress duelling, intended to make all insulting words actionable, without justification or excuse, if spoken, and not to provide for such words if published to the world in a newspaper. For, as defamatory or insulting words written (and the term includes words printed) indicate greater deliberation and malice, and in general are more permanent and extensive in their operation than words spoken, which often proceed from sudden passion, and may be soon forgotten, so are they more wounding to the feelings of the person aggrieved, aud consequently more likely to lead to violence and the commission of the offence which was designed to be suppressed. It is true that written defamation is actionable at common law, and that any writing is libellous which tends to injure the reputation of a person, or to render him odious, contemptible or ridiculous. Villers v. Monsley, 2 Wils. 403; Adams v. Lawson, 17 Gratt. 250; 4 Min. Insts. (1st ed.) 382. But if it were conceded that all written words, which are usually construed as insults, are comprehended within the definition of a libel, the fact remains that the remedy at common law was, in the judgment of the legislature, inadequate for the redress of the grievances it had in view. For it is essential, to maintain an action for libel, that the publication complained of be false and malicious, and therefore its truth may be pleaded in bar of the action; and this the legislature meant to forbid in actions .under the statute for insults. If when the injured party sues, said Judge Allen, in Brooks v. Calloway, he could be “ met with a plea of jus — 114 — tification, and bis whole life be investigated before an assembled community, his feelings would be doubly outraged. Tbe law wbicb proffers redress for insult would furnish tbe opportunity of aggravating tbe outrage, and be itself an insulting mockery.” “ Tbe insult,” be added, “ is tbe ground of action, and tbat tbe law considers injurious, whether true or false.” These remarks forcibly show tbe policy of the legislature in passing tbe statute as it originally was. And although it has been since amended, and a later statute, now contained in tbe fiftieth section of chapter one hundred and seventy-two of tbe Code of 1873, permits the truth of tbe words declared on to be pleaded in any action for defamation, whether at common law or under tbe statute, yet tbat circumstance does not affect tbe question before us. Tbe amendment was made, at tbe revision of 1849, by striking out of tbe statute so much thereof as provided tbat no plea or exception should preclude a jury from passing on tbe words complained of; and, in tbe section of tbe Code above mentioned, it is provided tbat “in any action for defamation, tbe defendant may justify by alleging and proving that tbe words spoken or written were true.” But this does not take away tbe right, wbicb existed before, to maintain an action like tbe present, although tbe effect may be to do away with one of tbe reasons for originally extending tbe statute to written insults. Indeed, tbe statute just quoted would seem to have been passed with reference exclusively to actions for insults; for why enact tbat tbe truth of tbe words may be pleaded in an action for slander, either spoken or written, when tbe common law already so provided ? And this brings us to consider whether the declaration in tbe present case is obnoxious to the second objection urged against it. We think it is not. After tbe usual — 115 — averment of the plaintiff’s good character and reputation, the declaration sets out the card published by the defendant on the twelfth of March, 1884, which it alleges to be malicious and libellous, and then, referring to the objectionable words therein, avers that they are such as, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace; by reason whereof, it concludes, the plaintiff has been greatly injured, etc. This undoubtedly is a good declaration for an insult under the statute. So much of it as follows the common law form of a declaration for libel is mere matter of inducement, and unobjectionable. It is true the publication declared on is alleged to be malicious and libellous; but it is alleged so to be, because of the words therein, particularly mentioned, which are averred to be insulting, etc., in the language of the statute itself. We see no objection to this form of declaring; for although a publication be libellous at common law, yet if it contain insulting words, there is no reason why it may not be declared on under the statute; and the declaration will be good, if it shows by proper averments that the words are within the statute. It will be faulty, however, if a common law and statutory cause of action are blended in one count. Hogan v. Wilmoth, 16 Gratt. 80. In the present case, the declaration sets out with sufficient precision a single cause of action, and that under the statute, and therefore the demurrer was rightly overruled. The next assignment of error is, that the circuit court erred, at the trial, in refusing to instruct the jury as prayed by the defendant, and in giving the instructions which were given to the jury. And here the principal question is, whether the instructions which were given, and those which were refused, correctly propound the law relating to what are called privileged communications. — 116 — This question must be decided upon the same principles-which apply to an actiop for libel or slander at common law; since in action for insults under the statute, no less-than in a common law action for defamation, malice is the-gist of the action, which must be expressly or substantially alleged. To insult, says Webster, is “ to leap upon; to treat with abuse, insolence or contempt; to commit an indignity upon,, as to call a man a liar.” So that without malice, which in this connection denotes ill-will, or an intent to injure, or to-offend, or to wound the feelings of, another, there can be no-insult. Each case must, therefore, be governed by its own. circumstances, the chief of which is the animus of the defendant in using the words complained of. For it is obvious; that some words, which if spoken contemptuously or from ill-will, would be universally construed as insulting and tending to violence and breach of the peace, would, if spoken under other circumstances, be considered as unexceptionable. Even words of praise, spoken ironically, may be intended and accepted as insults, while, on the other hand,, many words usually construed as insulting may be used harmlessly and in jest. Hence, to arrive at a just conclusion, the jury must look to the whole case and all its surroundings, and therefore it is enacted that no demurrer-shall preclude the jury from passing on the words which form the subject of the action. It is not always necessary, however, to prove malice expressly. The' law infers malice from the unauthorized publication of matter which is insulting or defamatory. The plaintiff, therefore, makes out & prima facie case simply by proving the words, whether written or spoken, as laid in the declaration. But the rule is not inflexible. A publication is sometimes justified by the occasion, that is, made-under circumstances which rebut the presumption of malice,, as, for example, when made in good faith, in the perform — 117 — anee of a duty, legal or moral, and with the honest purpose on the part of the defendant of protecting his own interest. Such instances constitute a recognized exception to the general rule, and make it incumbent on the plaintiff to prove malice in fact. If, however, malice, be shown, then the defense resting on the occasion of the publication is rebutted; for to make a communication privileged, two things must concur: (1) The occasion must be privileged; and (2) it must be used bona fide, and without malice. Therefore, if a communication goes beyond the occasion, and language is used which unnecessarily defames the. plaintiff, such language is not considered as having been used in the due performance of a duty, or in the protection of the defendant’s interest, and is not privileged. And the same rule applies where the publication is more extensive than, the circumstances of the case reasonably require. Wilson v. Collins, 5 C. & P. 373 (24 Eng. C. L. 367); Odgers, Lib. and Sland. 225, 280 et seq. There are, indeed, some cases in which, upon grounds of public policy, the privilege is absolute, of which words spoken in his place by a member of the legislature, or by a judge on the bench, or a witness on the stand, in the course of a judicial proceeding, are examples. But with this class of cases we are not concerned in the present case. Whether the occasion is privileged is a question for the court j whether it has been used bona fide, is a question for the jury. In an ordinary action for defamation, however, (i. e., not a case of privileged communication), it is error to submit to the jury the question of malice, for that the law implies, though it has been held that evidence of malice may be given to increase the damages. Bowage v. Prosser, 4 B. & C. 247 (10 Eng. C. L. 321); Clark v. Molyneux, 3 Q. B. D. 237; Hamilton v. Eno, 81 N. Y. 116. The reported cases on the subject of privileged commu — 118 — nications are very numerous, and they show that while the law as to such communications is well settled, its application to particular cases is often attended with difficulty. They also show that the law in this particular was formerly more restricted than at present, the rule having been gradually extended, on the ground that it is to the interest of society that correct information should be obtained as to the character and standing of persons with whom others have business or social relations; so that it is now settled, as laid down by Baron Parke in the leading case of Too-good v. Spyring, 1 C. M. & R. 181, that a communication honestly made in the performance of a social duty, is no less privileged than one made in self-defense, or in the protection- of one’s own interest. And a communication made under such. circumstances, and without malice, is protected, notwithstanding its imputations be false, or founded upon the most erroneous information. Coxhead v. Richards, 52 Eng. C. L. 569; Davies v. Snead, L. R. 5 Q. B. 608; Blackham v. Pugh, 2 C. B. 611 (52 Eng. C. L. 611); Coward v. Wellington, 7 C. & P. 531 (32 Eng. C. L. 616); Todd v. Hawkins, 8 C. & P. 88 (34 Eng. C. L. 304); Whiteley v. Adams, 109 Eng. C. L. 569 ; Clark v. Molyneux, 3 Q. B. D. 237 ; Stevens v. Sampson, 5 Exch. D. 53; Stace v. Griffith, L. R. 2 P. C. 420; Van Wick v. Aspinwall, 17 N. Y. 190; Swan v. Tappan, 5 Cush. 104; Shurtleffy. Stevens, 51 Vt. 501; Hamilton v. Eno, 81 N. Y. 116; White v. Nicholls, 3 How. 266; Garrett v. Dickerson, 19 Md. 418; Dillard v. Collins, 25 Gratt. 343; Moore v. Butler, 48 N. H. 161; 6 Rob. Pr. 885, 903; 1 Am. Lead. Cas. marg. p. 168, notes to Howard v. Thompson. According to these principles, while it is true that one insult cannot be set off against another, (Bourland v. Eidson, 8 Gratt. 27,) yet if a man is attacked in a newspaper, he may reply; and if his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, — 119 — it will be privileged. The rule, deducible from the authorities, is expressed by a modern text-writer as follows: “Every man has a right to defend his character against false aspersion. It may be said that this is one of the duties that he owes to himself and to his family. Therefore, communications made in fair self-defense are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, when such retort is a necessary part of my defense, or fairly arises out of the charges he has made against me.” Odgers, Lib. and Sland. 228. In the present case, the defendant contended in the court below that the publication declared on was privileged, and that the jury should be instructed to find for the defendant, if they believed from the evidence that he had acted honestly, without malice, and in the protection of his own interest. The court, however, refused to instruct the jury to that effect, and gave two instructions of its own. The first is as follows: “ The jury are instructed that if they believe that the words complained of in the declaration as published by the defendant in the Richmond Dispatch, of March 12, 1884, were such words as from their usual construction and common acceptation are construed as insults, and tend to violence and breach of the peace, they should find for the plaintiff, unless they believe from all the evidence that such words are substantially true, in which event they should find for the defendant.” This instruction is erroneous, and the error consists in this: that it wholly withdraws from the jury the consideration of the question whether the publication declared on falls within the protection which the law extends to privileged communications. Under proper instructions, the jury might have found that although the language used was not true, yet that the defendant in good faith believed — 120 — it to be true, and that it was used honestly, without malice, in self-defense, and in the reasonable protection of his own interest; and if the jury had so believed from the evidence, it would have been their duty to have returned a verdict for the defendant. Yet it seems to have been supposed that this question could be considered only in connection with the measure of damages. For the court in its second instruction, after again telling the jury, in effect, that they must find for the plaintiff, if they believed that the words complained of were not true, proceeds further to instruct them, that “ if they believed that the defendant had reasonable cause to believe, and did believe, that, the words were true, and that he was provoked to the publication thereof by the plaintiff’s card in the Dispatch of March 11, 1884, and shall further believe that the defendant in publishing such card of March 9, 1884, was actuated, not by malice against the plaintiff, but by an honest desire to protect his business, believing in good faith that the statements made in said card and the accompanying certificate of Mr. Harper were true, then the jury are instructed that in assessing the plaintiff’s damages, such belief upon his, the defendant’s part, should mitigate the amount of damages.” The theory of these instructions is, that malice is not an essential ingredient in a case arising under the statute, and that if the words complained of be not true, they are not protected, no matter whether the defendant believed they were true, or what were the circumstances under which they were published. We cannot concur in this view. According to the statute as it originally was, and as it was construed in Brooks v. Calloway and in Moseley v. Moss, no plea of justification was admissible in an action under it;' and therefore, as we have seen, the defendant was not permitted to plead in bar of the action that the words uttered were true. To change the law, as thus con — 121 — strued, the legislature passed the statute already referred to, permitting the truth of the imputation to be pleaded in any action for defamation. Nor did it stop there. It went further, and amended the statute, giving a remedy .for insults by striking out of it the theretofore controlling provision that “ no plea or exception” should preclude the .jury from passing on the words complained of; thus leaving an action under the statute substantially subject to the same rules in respect to the defense by plea which apply to an action for defamation at common law. And it cannot be doubted that if the statute had been the same as it now is when Brooks v. Calloway and Moseley v. Moss were decided, those cases would have been decided the other way, without the help of the statute, subsequently passed, permitting the truth to be pleaded in justification, as it may now be done. And if the truth of the words may be pleaded by virtue of the amendment of the statute itself, So may the defendant show, if he can, that the publication declared on is justified by the circumstances under which it was made. In other words, a communication which would be privileged in an action at common law, will, if made under substantially the same or similar .circumstances, be likewise privileged in an action- for insults under the statute. For there is nothing to indicate that the legislature intended, when amending the statute, to leave the hands of a defendant tied, and to preclude him, when assailed, from defending himself, or protecting his interest, within the limits prescribed by the common law. The truth doubtless is, that when the amendment was made the legislature had arrived at the conclusion that, as a means of suppressing duelling, the statute, so far at least as the civil remedy given by it was concerned, was a failure, and therefore determined to permit any plea to be filed in an action under it which is admissible in an action for slander at common law. At all events, such is the — 122 — effect of the amended statute. The instructions given in the present case are consequently erroneous. The facts are, that on the ninth of March, 1884, the defendant published in the Dispatch a card, denying “ the rumor ” that the firm of which he was a member had retired from the real estate business, and imputing misconduct to the agents of H. L. Staples & Co., in that, by misrepresentations and otherwise, they habitually sought to prevent the defendant’s correspondents from seeing him or his firm. He also announced his purpose to bring an action at once against H. L. Staples & Co., for damages, saying further that his firm had established an extensive business at great cost, and meant to protect themselves “against all such sharp practice.” To this the plaintiff replied, two days thereafter, in the same newspaper, charging the defendant with having published in his card “ a contemptible, cowardly, malicious lie.” How, in this state of things, the defendant was warranted in believing that a twofold duty was imposed upon him,viz.: (1) To defend himself against the disreputable charge made against him; and (2) to protect his interest by preventing, if he could, unfavorable impressions respecting his published statement of alleged grievances, lest such impressions, if formed in the community, might tend to his prejudice upon the trial of his proposed action. Accordingly he published the card which is the subject of the present action, in which he declared that, owing to the plaintiff’s “known character as a liar,” he could “ not recognize him in the way a gentleman should be recognized and further, that he expected to sustain the truth of the statements contained in his previous card by the evidence of a competent witness, when his suit against H. L. Staples & Co. was brought to a trial. Under these circumstances, the occasion of the publication was clearly privileged, and the jury ought to have — 123 — been instructed to find for the defendant, if they believed from the evidence that it had not been abused; that is to-say, that the defendant had not laid hold of the occasion as a mere color or excuse for gratifying his private malice with impunity, but had honestly and reasonably acted in the performance of a duty, or in the protection of his own interest. It is needless to say more. To consider seriatim the numerous instructions which were offered by the defendant, and refused, would unduly extend this opinion, already too long. The principles applicable to the case are sufficiently indicated by what has been said. The judgment will therefore be reversed, and the case remanded for a new trial. Judgment Eeveesed.