Storey v. Early

Mr. Justice Breese delivered the opinion of the Court: In the case of Regnier v. Cabot,, 2 Gilm. 38, this court, apparently with great care, laid down as a rule of law, in actions of this kind, “ that where a defendant does not justify, he may mitigate damages in two ways only: first, by showing the general bad character of the plaintiff; and, second, by showing any circumstances which tend to disprove malice, but do not tend to prove the "truth of the charge/’ Before that time it had been a question whether, under the general issue, the defendant could be permitted to show specific facts which tend to cast suspicion of guilt upon the plaintiff, upon which (it is there said) there had been a conflict of authority. . The authorities in other States and in England were in that case examined, and the rule with its qualifications was laid down as stated above. In an earlier case (Young v. Bennett, 4 Scam. 46) it had been decided, where defendant pleaded the general issue to the whole declaration and justified as to part of the counts, that it is not competent to prove, in mitigation of damages, “that a particular rumor prevailed in the neighborhood that plaintiff was guilty of the charge.” In Sheahan v. Collins, 20 Ill. 328, the rule laid down in Cabot’s case, supra, was again" laid down and applied. That action was for libel, and it was there held incompetent to show that the libelous article had appeared in another newspaper in the city shortly before its publication by the defendants. The qualification to the proposition, that defendant in such case ‘ ‘ may prove any circumstances which tend to rebut malice,” is that, if such circumstances tend to prove the truth of the charge expressed in the slander or libel, the proof must be rejected. This qualification excludes, not only such circumstances as the law recognizes as competent evidence tending to prove the truth of the charge, but all circumstances which in the popular mind tend to cast suspicion of guilt upon the plaintiff. There can be no question that the proof offered in the case at bar, and hereinafter mentioned, tends to rebut the inference of actual malice in the defendant. The turpitude of the publication of matter believed to be true is plainly of a character much less malignant than that of the publication of the same matter when known to be false, and less than the publication of the same matter without any reason to suppose it to be true. The proof offered, plainly, did tend in some degree to rebut malice. It tended to reduce the offense of defendant from that of vindictive and virulent malice, or that of utter recklessness, to that of a want of proper care in ascertaining the truth before publication. It was, therefore, competent unless it be excluded by the qualification to the rule. The question in this case is, did the proof so offered tend to cast suspicion of guilt upon the plaintiff? If so, it was properly rejected by the circuit court; if not, it ought to have been admitted. The substance of what defendant offered to show to the jury was that plaintiff was a worthy and estimable young woman living in Bockford, Illinois, and that two letters purporting to be written by two reputable citizens of Bock-ford were forged by some unknown person, and sent through the postoffice to defendant in Chicago, and that defendant was thereby imposed upon and induced to publish t|ie libelous article, at the time supposing the charge to be true, and that no one in Rockford had ever heard a suspicion of the purity of plaintiff until the publication of defendant, and that the publication excited universal indignation. Does this statement tend in the slightest degree to excite in the minds of the jury, the bystanders, or the public a suspicion of the probability of guilt on the part of plaintiff? We think not. On the contrary, it furnishes a vindication of her purity more complete than could any verdict of a jury saying, merely, “ She is innocent, and the publication was malicious.” The proof here offered differs from the case of an attempt merely to prove that rumors in support of the charge were in circulation before the publication, and from the case where it was proposed merely to prove that a like charge had been published in another journal. Proof that prior rumors existed, or that a prior publication of the charge had been made in another journal, would tend to excite in the minds of the jury a suspicion against the purity of plaintiff, and would tend to cast additional reproach upon the plaintiff. That would be simply a repetition of the slander, with no accompanying antidote to neutralize the virus. In fact, a statement by a defendant that rumors were prevalent against the chastity of a woman, or that an article charging such impurity upon her had been published in a public journal, would constitute of themselves ground for another action. Not so with the statement offered to be proved in this case. The publication of the statement offered in proof could not be made the subject of action by the plaintiff, for it in no way suggests to the mind a suspicion of impurity in her. In many cases the application of this rule of exclusion may be difficult. It may not be easy at all times to distinguish between that which is free from the suggestion of guilt in plaintiff, and that which is r.ot. The propriety of this exclusion of some matters, though they may seem to rebut malice, seems to rest upon the idea that while the law will allow a guilty defendant to mitigate, if he can, the degree of his guilt, this is a privilege which must not be exercised if to do so involves the necessity of casting reproach upon an innocent plaintiff, who has done no wrong. The proof on this point offered in this case, taken as a whole, tended in no degree to cast additional reproach upon the plaintiff, and ought to have been admitted. The sixth instruction for plaintiff was improperly given ; it in substance says to the jury that, in fixing the amount of damages to be awarded as compensation to plaintiff for the injury she has sustained, “the wealth and standing of the defendant” might properly be considered. It is not perceived how the injury actually done to plaintiff by the publication of this libel could be affected either by the wealth or standing of Wilbur F. Storey. This is not a slander uttered personally by the defendant, nor is the libelous matter contained in any communication having the sanction of his name. The extent of the circulation of the newspaper of defendant, and the character and standing of that newspaper for fairness, justice, and truth, might well be considered upon that question. The wealth of the publisher might be great and his social standing high, and yet the paper might be of such character as to exert but little influence upon the public mind. On the other hand, the publisher might be insolvent, and his position in society very low, and yet the paper might be very attractive and have a very large circulation, and enjoy the confidence of the public to such a degree, for justice and truth, that statements in its columns might carry great weight. There is a clear distinction between a publication of slanderous matter in a newspaper as a matter of news, and the publication of slanderous matter upon the personal truthfulness and responsibility of the defendant. Again, the injury actually suffered in no sense is to be measured by the wealth of defendant. It must be observed that this instruction does not reiste to vindictive or punitive damages, but solely to compensatory damages. For the errors stated the judgment must be reversed and the cause remanded. Judgment reversed.