Hagan v. Hendry

Bowie, C. J., delivered the opinion of this court. The questions presented by the bills of excepuon in this case, arise and depend chiefly upon the extent to which the pleadings in actions for libel are modified by the Act entitled, “An act to simplify the rules and forms of pleading and practice in the courts of law,” 1856, ch. 112. The suit was instituted on the 1 tli of November 1856, by the appellant against the appellee, for certain supposed libelous publications. The declaration and pleas are framed under the Act referred to. [188] Four exceptions were taken below, the first, upon the refusal of the court to allow the plaintiff to except to a previous ruling of the court, which had been submitted to without reserving the right to except, and to which, at a subsequent stage of the trial, he undertook to except. This exception has not been urged by the appellant before this court; the ruling of the court below, however, seems to be consonant with the most approved authorities. Chitty’s Gen. Prac., 915. Graham’s Prac., 326. The second and third exceptions present the question of the admissibility of the evidence embodied in them, under the issue joined. The nar. contained two counts, framed under the Act of 1856; ch. 112, sub-ch. 3, sec, 33, to each of which counts the defendant, in the language and form of said Act, sub-ch. 3, sec. 61, pleaded, “He did not commit the wrong alleged.” Tt would be difficult to condense, within reasonable limits, the effept and operation of this law upon the rules of special pleading previously recognized and sanctioned in this State. It will be sufficient, for the purposes of the case, to cite a few of ttye sections relating immediately to the subject. Among the; “General Rules of Pleading applicable to all cases,” this fundamental rule is laid down, “The pleadings shall be so conducted as to evolve upon the record, by the effect of the allegations themselves, the questions of law and of fact disputed between the parties, and present them as the subject-matter of decision.” Article 2d. “There shall be only two forms of traverse, viz: a direct traverse and an indirect traverse. The general issues, and the replication de injuria, and the formal traverse with an absque hoc, shall not be u.spd,” Sec. 46. “ Where to any action for injury to person or character or property, any matter af excuse or justification is pleaded, the plaintiff shall, in the replication, deny it in the words of the excuse or justification, or to the like effect, or may plead some special defence.” Sec. 47. “All defences, except a direct depial of the facts alleged, shall be pleaded specially.” [189] Art. 5, sec. 73. “In all actions of Ijbel or slander, the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense, without any prefatory averment, to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander, and where the words or matter set forth, with or without the alleged meaning., show a cause of action, the declaration shall be sufficient,.” Art. 6, sec. 86. “All questions of law, unless raised by demurrer, shall fall under the decision of the jury, in the issue in fact, subject to the direction of the court, upon a prayer for that purpose.” The declaration alleges “the defendant falsely and maliciously caused to be printed and published of the plaintiff, in a newspaper” (certain words,) meaning thereby, “that the plaintiff had been guilty of forgery.” The defendant pleads, “he did not commit the wrong alleged.” The' plea is a direct traverse, and put in issue the malicious printing and publishing, and the defamatory sense of the libel complained of. The object of sec. 73, Art. 5, was to extend the effect of the denial of the alleged libel to the averment of the defamatory sense, giving it almost, if not quite, as wide a range as the general issue, which the new system prohibits. Under the general issue at common law, the defendant may give in evidence any matter tending to deny or disprove any material allegation of the plaintiff, such as the publishing o£ the words, the malicious intention or the injurious consequences resulting from the act complained of. 2 Greenl. Ev., sec. 421. The witness, whose testimony is excepted to in the second and third bills of exception, having been called by the plaintiff to prove the printing and publication of the supposed libel, and having proved the same, the defendant, by way of cross-examination, asked t.he witness to state the whole of what the defendant said, at the time he handed the witness the paper [190] and requested him to publish it, (the plaintiff not being present at the time,) to which evidence the plaintiff objected. If the object of this testimony was, as its purport implies, to explain the sense in which the defendant used the supposed defamatory words, it was not admissible. The question for the jury is not, what the party meant according to some reservation in his own mind, but what he meant to make others believe-what he expected would be understood by those to whom the words were addressed; and for the meaning of the words, as they are understood by others, he is responsible. Read vs. Ambridge, 6 Carr. & Payne, 308. Shipley vs. Todhunter, 7 Carr. & Payne, 680. Kennedy vs. Gifford, 19 Wend., 296, cited in 1 Amer. Lead. Cases, (Ed. of 1857,) 133. To amount to an explanation, the qualification must extend as far as the hearing of the words; it must be shown all the hearers understood it as relating to a transaction not felonious. Phillips vs, Barber, 7 Wend., 439. 16, Mees, & Wels., 442. The slander, complained of, being written or printed, (not oral or verbal,) the explanatory words used by the defendant, could not be known to all the readers of the libel, and, upon the principle of the preceding cases, should have been excluded; nor were they admissible as a part of the res gestee, as, though coincident in time with the order to print, they threw no light upon the publication, nor tended to extenuate the legal malice implied in the act. The testimony in the second and third bills of exception is liable to the further objection, that it comes not within the limits of cross-examination, and violates an unbending rule of evidence, that a party to a suit cannot offer in evidence his own declarations. 1 Gill, 140. 11 Md. Rep., 557. The 4th exception was taken to the instruction of the court to the jury, that if they'believe from the evidence in the cause, the publication, in question, by the defendant, was a fair, honest, bona fide vindication of himself, and without malice, then the plaintiff is not entitled to recover. [191] “Upon consideration of the various cases upon the subject, we may conclude that any publication injurious to the social character of another, and not shown to be true, or to have been justifiably made, is actionable as a false and malicious libel. Malice, in an action of this kind, consists in intentionally doing, without justifiable cause, that which is injurious to another, and every thing injurious to the character of another, is, in this action, taken to be false, until it is shown by plea to be true. Therefore, every publication injurious to the character, is, in law, false and malicious, until the presumption of falsehood is met by plea of the truth, or the presumption of malice is removed by showing a justifiable occasion or motive.” 1 Amer. Lead. Cases, (Ed. of 1857,) 116. The plea of justification was not made in this case, and where the truth of the charge is designed to be given in evidence, it must, at common law, be specially pleaded; A just occasion, or an authorized motive for speaking or writing, may be given in evidence under the general issue at common law;—5 Adol. & Ellis, 645. 15 Meeson & Welsby, 435, 437, and other cases cited in 1 Amer. Lead. Cases, (Ed. of 1857,) 162;—or may be specially pleaded. Ibid. Any defence which shows a rightful occasion, and an authorised motive, removes the legal presumption of malice, and matters thus protected are called privileged communications. The operation of such evidence is this: the showing of a privileged occasion,prima facie, removes the quality of malice, and puts upon the plaintiff a necessity of showing express or actual malice, and if this be proved, the defence entirely fails. Child vs. Affleck, 9 Barn. & Cress., 403. 1 Amer. Lead. Cases, (Ed. of 1857,) 166, 167. “In some cases the whole question of privileged communication has been left to the jury, but there can be no doubt, that properly, the question whether the occasion is such as to rebut the inference of malice, if the publication be bona fide, is one of law for the court, and whether bona fides existed, is one of192 fact for the jury, Coxhead vs. Richards, 2 Com. Bench Rep., 569, 584, 600, but as the protection always involves matter of intention and good faith, it is said in Cooper vs. Stone, 24 Wend., 434, 441, 442, that the question of privileged communication cannot be settled on demurrer to the declaration, but requires the intervention of á jury.” Notes to Howard vs. Thompson, 1 Amer. Lead. Cases, (Ed. of 1857,) 167. ( Decided January 30th, 1862.) ■ Assuming the direct traverse prescribed by section 61, sub-ch. 3, of the Act of 1856, ch. 112, enlarged by section 73 of Article 5, puts in issue all that the general issue at common ■law allowed, it would have been:' competent for the jury, if the evidence warranted it, to inquire, whether a just occasion or authorized motive existed, for publishing the supposed libel. The 86th sec.-of Art. 6 of the Act.above cited declares, “all questions of law, unless raised by demurrer, shall fall under .the decision of the jury on the issue in fact,-subject to the direction of the court, upon a prayer for that purpose.” Whether this section is more than declaratory of the common law, it is unnecessary to determine. At the instance of neither party can the court grant an instruction upon any proposition, to sustain which there is no proof in the cause. And should it be done, where there is any reasonable grouhd for supposing the instruction has produced any influence upon the minds of the-jurors in making their verdict.,- the decision will be reversed on appeal. 4 Md. Rep., 457, Long vs. Eakle. Regarding the testimony offered by the defendant, through Mr. -Schley, as inadmissible to show want of malice in the publication of the supposed libel, or to show a just occasion or authorized motive, we think there was no evidence in the cause to base the instruction on. Judgment reversed, and procedendo awarded.