Ball v. Evening American Publishing Co.

Mr. Justice Scott delivered the opinion of the court: The refusal of the court tó direct a verdict for the defendant at the close of all the evidence is assigned as error. It was contended in support of that motion that the article was not libelous. Without entering at length into a discussion thereof, we are satisfied that if the publication set out in the narr. was published of and concerning the plaintiff an action lies for libel. It is also urged that the motion should have been allowed because there was a variance between the proof and the declaration, in this: that the declaration averred that the article in question was published of and concerning the plaintiff, while the proof shows, without contradiction, that it was not so published, but was published of and concerning a person other than the plaintiff. It is to be observed that the declaration charges not only that the picture or likeness published as that of Pearl M. Ball was, in fact, that of the plaintiff, but also that the printed words were published of and concerning the plaintiff. In considering the question of the alleged variance it seems appropriate also to consider a question raised as to the propriety of an instruction given on the part of the plaintiff, the determination of the questions turning somewhat upon the same matters. The instruction so referred to was No. 4 given at the request of the plaintiff, and is in the words following: “The court instructs the jury, as a matter of law, that if you find, from a consideration of the evidence and the law as stated in these instructions, the publication in question is as to the plaintiff untrue and was made by the defendant, it is libelous, and the plaintiff is entitled to such damages as shall afford a reparation for all the injury, including mental suffering and humiliation, which has naturally and approximately resulted from the publication, if any, shown by the evidence.” It is to be observed that this instruction omits the element that the alleged libelous words were published of and concerning the plaintiff, and it is in this respect that the instruction is criticised. The plea of the general issue alone was filed. There was no contention that the words were true as to the plaintiff, and the instruction, standing alone, was an instruction to find for the plaintiff, because it advised the jury that the publication was libelous and eliminated the only other defense relied upon, viz., that the words were not spoken of and concerning the plaintiff. Where the words published or spoken do not refer to the plaintiff by name, the proper practice is, as was done here, to aver that they were spoken of and concerning the plaintiff, and the plea here filed put this averment in issue. It is elementary that an alleged libelous publication must be interpreted in the sense in which readers would understand it, andf in this State it has been held in slander suits that the testimony of the hearers as to the sense in which they understood the words spoken is admissible. (Nelson v. Borchenius, 52 Ill. 236.) This rule applies to a statement of the witness to the effect that he understood the alleged slanderous words were spoken with reference to the plaintiff, where the plaintiff’s name was not used. (Dexter v. Harrison, 146 Ill. 169.) Where the words are ambiguous or equivocal in meaning, the question of the meaning to be ascribed to them is for the jury, although the question as to whether or not any particular meaning is libelous is, of course, for the court. Where, as here, there is a controversy as to whether or not the words were published of and concerning the plaintiff, the question whether they were so spolce-n is for the jury. In each of the cases of VanVechten v. Hopkins, 5 Johns. 211, Miller v. Butler, 6 Cush. 71, Goodrich v. Davis, 11 Metc. 473, Prosser v. Callis, 117 Ind. 105, Stoken v. Morning Journal Ass. 73 N. Y. Supp. 245, and Palmer v. Bennett, 31 id. 567, the words complained of did not name the plaintiff, and it was held that the question whether they were of an d concerning the plaintiff was one of fact to be determined by the jury. The defendant contends that the law is so, and the plaintiff, in effect, agrees, as she states by her brief that the “rule for interpretation of an alleged libel is what the world would generally understand it to mean,” and “whether the article was published of and concerning the plaintiff is a question for the jury.” Plaintiff contends that the case is to be regarded as one where the defendant published libelous words of and concerning a woman, and then, exhibiting a likeness of the plaintiff, states, in effect, “this is the picture of the woman of whom the words are published;” while, on the other hand, the position of the defendant is, that, so far as the printed words are concerned, the entire article applied only to Pearl M. Ball, as appears from a reading thereof, and that there is no evidence which indicates that any part of' the publication was of and concerning the plaintiff. We do not regard either position as tenable. A little reflection will show that it does not necessarily follow from the publication of the picture that the words in the article had reference to the plaintiff. If, for example, a newspaper should publish a statement to the effect that a female child (naming her) had died of cholera infantum and that her picture appeared at the foot of the article, while at the place indicated there appeared a likeness, not of a child but of a bearded and aged man, with the name of the babe printed thereunder,' it would be at once evident, whatever the rights of the subject of that picture were, that the words in reference to the death, and the cause thereof, were not spoken of and concerning him.- As stated above, the publication, must be given the same meaning that would be attached thereto by the readers, and in determining what that meaning was, it was proper for the jury to take into consideration the facts and circumstances surrounding these two women and the facts and circumstances attendant upon the death of Pearl M. Ball. There is no pretense that the printed words were untrue in reference to Pearl M. Ball, other than the statement that the picture published was her likeness, and excluding the picture there is no contention that anything was said in print of and concerning Rose Ball, the plaintiff, so that no application of the article to Rose Ball would be apparent to any person reading it, except such persons as would be able, by their acquaintance with her or knowledge of her, to recognize the picture published as her likeness. The plaintiff lived at or near Charlotte, Iowa, until she came to Chicago, in 1893, when she was about eighteen years of age. Her family still resided in Iowa in 1901 and seem to have been people in very moderate circumstances. Prior to coming to Chicago she had studied stenography. A young lady, also a resident of Iowa, came with her. The two resided for a time with a married lady with whom they were acquainted before they came, and later lived in a rooming house or boarding house until the young lady who accompanied the plaintiff married a man by the name of Rowe. After that, .for a time the plaintiff lived with this couple. For about two years after coming to the city she seems to have been employed only occasionally, but after that she was usually employed as a stenographer. According to her testimony her circle of acquaintances in Chicago was not an extensive one. About three years after she came to Chicago she left the Rowes and thereafter lived in various boarding houses. During the last .five years she was in Chicago she was in the employ of a publisher and did regular stenographic work in his office. In December, 1900, she returned to her home in Iowa, where she remained for. a month or so, and after that went to Helena, Montana, upon the suggestion of the Rowes, who then resided at that place. She was there employed in a dry goods store until the latter- part of September, 1901. During the time she was in Chicago she had several photographs made at a studio, owned and conducted by a man by the name of Godfrey. Pearl M. Ball, an unmarried woman, died suddenly in Chicago at her father’s home, where she lived, on the evening of August 28, 1901. On the next morning, newspaper reporters, representing the defendant’s paper, The Chicago Record-Herald, The Chicago Tribune and The Chicago Chronicle, all newspapers published in Chicago, called at the residence of the father to ascertain the facts in connection with the death of his daughter. The representatives of the four papers named were there at the same time, and asked, among other things, whether the father would let them take a picture of the daughter for publication. ■ The father told them that Godfrey had made photographs of his daughter and had the negatives, and that he (the father) would not object if Godfrey saw fit to give them a picture. At least two of the reporters went to Godfrey’s, and sooner or later all obtained from him copies of a picture of the plaintiff although they were seeking a picture of Pearl M. Ball. Godfrey kept a register and an index of his negatives, and. in examining the list for the purpose of locating the negative of Pearl M. Ball he overlooked her name upon his records, although it was there, and stated to the only reporter who was then present, in substance, that he had no negative of Pearl M. Ball but that he had a negative of Rose Ball. The evidence tends to show that this reporter then stated to him. that Rose Ball and Pearl M. Ball were one and the same; that Pearl M. Ball sometimes went by the name of Rose Ball and that he would recog-, nize the negative of Pearl M. Ball. Godfrey then exhibited the negative of Rose Ball and the reporter stated that it was the negative of Pearl M. Ball. Just exactly what occurred there at the studio is somewhat in doubt, owing to the fact that neither Godfrey nor any of the reporters who talked with him testified. It is certain, however, that Godfrey, following the conversation just detailed, printed photographs from the negative of Rose Ball and furnished each of the newspapers named above with a copy. Each of the newspapers published an account of the death of Pearl M. Ball, and with it, as a picture of Pearl M. Ball, published the likeness of the plaintiff. Copies of some of these publications were sent to Rose Ball at Helena, Montana, where she was then living, by a friend in Chicago, and during the month of September,, 1901, she returned to Chicago and shortly thereafter instituted several suits on account of these publications. Pearl M. Ball had lived in Chicago all her life and at the time of her death was twenty-four years of age. She was widely known in musical circles. She was an accomplished pianist and was a composer. Her father was Charles H. Ball, and she lived with him at his home at No. 2 in Forty-seventh place. He had been engaged in the piano business for a number of years in the Auditorium building. In determining what meaning would be put upon the publication by the readers thereof in order to decide whether the words printed were printed of and concerning the plaintiff, as against the fact, on the one side, that plaintiff’s picture was published as that of Pearl M. Ball 'in connection with the article, it.was the duty of the jury to consider, on the other side, the fact that the person named in the article was Pearl M. Ball; that Rose Ball then lived at Helena, Montana; that the subject of the article, as therein stated, lived in Forty-seventh place, Chicago; that the plaintiff was a stenographer, and the dead woman, as appeared from the publication, was a pianist and composer of music; that the plaintiff’s family had never resided in Chicago; that the family of the dead woman, as stated by the article, resided in Chicago and her father was engaged in business there; that the family of the dead woman had a family physician in Chicago, according to the article; that the family of the plaintiff never resided in Chicago and in the usual course of events would not have had a family physician there. We conclude, therefore, that the question whether there was a variance depends upon the meaning which, under the evidence, the jury would find would be ascribed to the publication by the readers thereof, and that for this reason the motion for a peremptory instruction could not be allowed upon the ground of the existence of a variance. We are also of the opinion that the question whether the article was published of or concerning the plaintiff was improperly eliminated from the instruction which is above set out. It is contended by plaintiff, however, that the instructions, as a whole, state the law correctly, and that the missing element in this instruction is supplied by plaintiff’s given instruction No. 2. That rule does not obtain where; as here, the erroneous instruction directs a verdict upon proof of certain facts. Moreover, we find, upon examination, that the plaintiff’s instruction No. 2 does not supply the missing element. That instruction merely required the jury to find “that the defendant published the portrait of the plaintiff, Rose Ball, in connection with the story of Pearl Ball, as charged in the declaration.” The instruction contains no requirement in reference to finding that the written part of the publication was of and concerning the plaintiff. On the other hand, the court refused instruction No. 4 asked by the defendant, which correctly .stated the law in this regard. Plaintiff then states that the third instruction asked by the defendant assumed that the publication was made of and concerning the plaintiff, and that the question whether it was so made has by that assumption been eliminated from the realm of contest. We find that this instruction contains no assumption whatever that can be regarded as applying to the words of the publication. The alleged assumption pointed out is only in regard to the portrait. It is also contended by plaintiff that the mere publication of the picture of another without the consent of that person is a violation of the right of privacy; that plaintiff was entitled to recover in this case irrespective of the publication of any words. Whether this be a correct statement of the law is immaterial. The declaration does not seek to recover for a violation of the right of privacy. The declaration sought, and the instructions permitted, the recovery of damages for the words printed as well as for the publication of the likeness. The motion for a directed verdict was properly refused. The giving of the instruction above set out was reversible error. There is no evidence whatever in the record indicating that Pearl M. Ball was ever known or called by the name of Rose Ball, and there is no competent evidence in the record •indicating which newspaper the reporter represented who made statements to Godfrey to that effect. Nor is there in the record any evidence that Rose Ball was ever known by any name other than her own. The publication for which the suit was brought was made in an evening edition of the newspaper published on August 29, 1901. For the purpose of proving repetitions of the libel, the plaintiff, over the objection of the defendant, was permitted to introduce in evidence three articles published in editions of the paper subsequent to that in which the article counted upon appeared. One of these subsequent publications was in a late edition published on August 29, 1901, and the other two were published on the next day. The publication made in the later edition on August 29 was identical with the one counted upon and was properly admitted in evidence as a repetition. As to the articles published on the 30th, however, while each was accompanied by the likeness of the plaintiff purporting to be a picture of Pearl M. Ball, both were materially different and neither could be regarded as identical with the articles published on the 29th. Both give the results of later investigations made for the purpose of ascertaining the cause of the death of Pearl M.' Ball, and both contained statements, not contained in the articles of the 29th, which, if made of and concerning the plaintiff, would in the light of the testimony in this record be libelous. A material alteration makes a different libel, for which a suit may be maintained or upon which a count may be joined. ‘Defendant insists that the alleged libelous statements found in the articles of the 30th which were not in the article counted upon render the publications of the 30th inadmissible. Whether subsequent publications of independent libels differing in character from the first, not connected therewith and not counted upon, may be proven for the purpose of showing malice of the defendant, is a question in reference to which the authorities are in conflict. It has never been passed- upon by this court. The defendant, in this connection, relies principally upon the case of Root v. Lowndes, 6 Hill. 518. Plaintiff says that case has been repudiated and discredited by a discussion found in Wig-more on Evidence. The judgment in that cause was the pronouncement of able judges. To their professional knowledge, theoretical in character, had been added wisdom acquired by long experience in the actual practice and administration of the law in the courts. We do not regard the force of that adjudication as.an authority as at all weakened by Prof. Wigmore’s unfavorable criticism of the court’s views. We are of opinion, however, that .the publications of the 30th cannot be regarded in this case as independent of the publication counted upon. On the contrary, they were connected therewith. They are like unto the later installments of a serial story. They form a continuation of the relation of the alleged facts relative to the death of Pearl M. Ball, and of the circumstances surrounding that event, as those facts and circumstances had been ascertained to exist after the first publication, and they carry the recitation down to the time of her funeral. Being so connected with the original publication and bearing upon the same matter as that publication, they were by the great weight of authority admissible in evidence as tending to show malice on the part of the defendant. The cases on the subject are collated at pages 496 and 497 of 25 Cyc. Whether the later publications would be admissible if they charged a libel wholly independent of, having no connection with and differing in character from the original publication is not here to be decided. The publications of the 30th, however, could not, upon the declaration filed in this case, be made the basis, in and of themselves, of a verdict for the plaintiff. With the proof in this condition the court gave to the jury the first instruction requested by the plaintiff, which reads as follows: “The court instructs the jury that any publication the necessary tendency of which is to expose a person to the hatred, contempt or ridicule of his or her fellow-men is a libel, and if you find, from the evidence, that defendant, as charged in the declaration in this case, published anything the necessary tendency of which was to expose the plaintiff to hatred, contempt or ridicule, you will find the issues for the plaintiff.” The instruction is somewhat awkwardly drawn. It is to be perceived, howevei;, that it permits a recovery for the publication of any libel of the plaintiff by the defendant which was charged in the declaration. No publication except the original one was counted upon, but the declaration charges that the defendant repeated the publications of the libelous article in subsequent issues of the paper, “amplifying, illustrating and embellishing said libel.” We think the jury would consider the subsequent publications as having been charged by the declaration, and that the instruction just set out was erroneous because it would be regarded by the jury as authorizing them to return a verdict in favor of the plaintiff upon the theory that the later publications were libelous, even if they did not regard the defendant as having been guilty of libel in making the publication counted upon. Instructions in reference to which an analogous question arose have heretofore been held by this court to be erroneous. Chicago and Alton Railroad Co. v. Rayburn, 153 Ill. 290; Ratner v. Chicago City Railway Co. 233 id. 169; Hackett v. Chicago City Railway Co. 235 id. 116. In his final argument to the jury counsel for the plaintiff made a statement in reference to what occurred in the Appellate Court in the trial of the case brought by the plaintiff against the Tribune Company. ' The court sustained the objection and said that the statement wras one which the jury should not consider. Defendant insists this did not cure the error. The statement was improper. Counsel for plaintiff will no doubt refrain from making it upon another trial. The plaintiff having sought damages by a declaration which states a good cause of action for alleged libelous printed words which, standing alone, apparently concerned the life and death of Pearl M. Ball, and having asked instructions (which were given) directing the jury, in the broadest terms, to return a verdict in her favor if they found that said printed words were untrue as to the plaintiff, now insists that the publication of the picture, in connection with the article, as the picture of Pearl M. Ball was libelous, and that such publication of the likeness not being denied and being clearly proven the judgment should not be disturbed. Had the declaration been framed averring that the printed account of the death of Pearl M. Ball, setting it out literally or stating its substance, was published by the defendant, and that in connection with that article defendant published the portrait of the plaintiff as the likeness of Pearl M. Ball, and containing further apt language necessary to charge libel in publishing the picture in connection with the article, and not charging that the publication of the words in and of itself constituted a libel, a very-different case would be presented from that now before us. The course just suggested was not pursued, but instead the plaintiff charged, and was permitted to recover on the theory, that all of the printed words contained in the article were of and concerning her. It follows that we cannot, under the declaration filed, affirm the present judgment merely because it is clearly proven, and not denied, that the picture is that of the plaintiff. Alleged errors not above referred to have been discussed. We deem it unnecessary to consider them. The judgment of the Appellate Court and the judgment of the circuit court will be reversed and the cause will be remanded to the latter court for further proceedings consistent with the views hereinabove expressed. Reversed and remanded.