Washington Herald Co. v. Berry

Air. Chief Justice Shepabd delivered the opinion of the Court: The lengthy statement of the evidence, — much of which is irrelevant and unimportant, — as well as of other parts of the record, is due to the motions to direct a verdict, and to the numerous exceptions that were taken. [338] Nineteen errors have been assigned, which, however, it is unnecessary to discuss separately. 1. The last error assigned is on the denial of the motion in arrest of judgment. Plaintiff did not demur to the declaration, but pleaded thereto, and the case went to trial. There was no error committed. Rudd v. Buxton, post, 353; Baker v. Warner, 231 U. S. 588, 58 L. ed. —, 34 Sup. Ct. Rep. 175. In Baker v. Warner it was said: “Such motions are not favored. In considering them, courts liberally construe the pleadings, giving the plaintiff the benefit of every implication that can be drawn -x- * * favor. Sentences and paragraphs may be transposed. The allegations in one part of the complaint may be aided by those in another, and if, taken together, they show the existence of facts constituting a good cause of action, defectively set forth or improperly arranged, the motion in arrest will be denied.” 2. The first assignment of error is founded on the exception to plaintiff’s reading the entire article published by defendant on July 23, 1911, part only of which was set out in the declaration. The libelous parts of the article were set out in the declaration. This was all that was necessary, as the other parfs did not alter or affect their meaning. Weir v. Hass, 6 Ala. 881, 887; Blethen v. Stewart, 41 Minn. 205, 42 N. W. 932. While plaintiff was not required to read any more than the part complained of, no possible injury was done defendant by reading the whole; moreover, it had set out the entire article in its third plea. It has nothing to complain of. 3. Certain other assignments relate to the refusal of the court to permit the defendant to read in evidence the articles set out in its third plea. So far as these relate to the articles published in the Herald, the same had been read by the plaintiff in proving his own case, and were before the jury. The publications in the Times and Star were properly excluded. 1 They were not reletant, and constituted no justification for .the defendant’s libel. Hotchkiss v. Lothrop, 1 Johns. 286. That other papers may have published articles relating to the [339] plaintiff and his controversy, whether libelous or not, afford no justification for defendant’s publication. The plea did not make a case of conditional or qualified privilege. The plaintiff was a private person who had resigned from public office, and while the article relating to him may have made “a good story” in the view of the publishers of the Herald, it was not a privileged one. A newspaper has no peculiar privilege in such matters. Fitzpatrick v. Daily States Pub. Co. 48 La. Ann. 1116, 1135, 20 So. 173; Burt v. Advertiser Newspaper Co. 154 Mass. 238, 243, 33 L.R.A. 97, 28 N. E. 1; Haynes v. Clinton Printing Co. 169 Mass. 512, 515, 48 N. E. 275. See also Peck v. Tribune Co. 214 U. S. 185, 189, 53 L. ed. 960, 962, 29 Sup. Ct. Rep. 554, 16 Ann. Cas. 1075; Russell v. Washington Post Co. 31 App. D. C. 277, 283, 14 Ann. Cas. 820. 4. There was no error in refusing to entertain defendant’s requests for instructions to the jury unless presented in writing. This is required by the 3d section, rule 44 of the Common Law Hules of the Supreme Court of the District. This rule — a most reasonable one — governs tbe courts in special term. 5. The exceptions to the charge of the court will be considered in their order. (1) Where the charges in a publication tend to bring the plaintiff into contempt, ridicule, or disgrace, they are libelous per se, and it is not necessary that they charge a criminal offense also. Bailey v. Holland, 7 App. D. C. 184, 189; Washington Gaslight Co. v. Lansden, 9 App. D. C. 508, 530; Washington Times Co. v. Downey, 26 App. D. C. 258, 263, 6 Ann. Cas. 765; Russell v. Washington Post Co. 31 App. D. C. 277, 282, 14 Ann. Cas. 820; Peck v. Tribune Co. 214 U. S. 185, 190, 53 L. ed. 960, 962, 29 Sup. Ct. Rep. 554, 16 Ann. Cas. 1075. (2) Where words are libelous per se the trial justice can so instruct the jury, leaving to them only the determination of damages; where they are not, and in the light of the extrinsic facts cannot possibly be construed to have a defamatory meaning, be may withdraw the case from the jury; if not libelous per se, yet in the light of extrinsic facts are susceptible of being [340] construed to have a defamatory meaning, they are to be submitted to the jury. Baker v. Warner, 231 U. S. 588, 58 L. ed. —, 34 Sup. Ct. Rep. 175. There was no error in refusing to direct a verdict for the defendant. (3) We agree with the learned trial justice that the words published were susceptible of a meaning that would hold the plaintiff up to public contempt and ridicule and disgrace. The charges that he was a “disgruntled fanatic;” had been deposed from office; and that he was getting off easy when he was simply deposed and nothing more was said concerning the manner in which he had filled the office of chief of the division, were susceptible of a meaning that would reasonably bring the plaintiff into ridicule and contempt, and injure his standing in the community. ‘ But the court did not direct the jury that the article was libelous per se as matter of law; but left it to them to find whether the reading public would interpret that language, as they read the article in connection with the context published, in that way; and if they found that it would not be so commonly understood they-should find for the defendant. Notwithstanding .the statement of the court that the words were susceptible in law of a defamatory meaning, it was left to the jury to say whether, as matter of fact, the readers of the article would, under the circumstances attending the publication, have so understood them. (4) It was not error to charge the j.ury that they could assume that none of the charges v'as true. Defendant had not pleaded the truth of the charges. Lauder v. Jones, 13 N. D. 525, 101 N. W. 907; Atwater v. Morning News Co. 67 Conn. 504, 34 Atl. 865; Bickford v. Talbott, 28 App. D. C. 498, 506. (5) The measure of compensatory damages was not incorrectly defined in the charge. Washington Times Co. v. Downey, 26 App. D. C. 258, 262, 6 Ann. Cas. 765. Nor was it- error to charge the jury that they might find punitive or exemplary damages if the publication was made with i wilful or reckless disregard of the plaintiff’s rights. Bailey v. Holland, 7 App. D. C. 184, 189. In that case it was said: [341] “Malice consists in doing intentionally and without justification that which must work injury to another.” Every assignment of error has been considered, but it is unnecessary to discuss them specially. Finding no error in the proceedings on the trial, the judgment is affirmed, with costs. Affirmed.