Snyder v. Fulton

Bartol, C. J., delivered the opinion of the Court. This is an .appeal by the plaintiff, who recovered a judgment below; and being dissatisfied therewith, asks for a reversal for-certain alleged errors in the ruling of the Superior Court, in refusing to grant his several prayers, and in tne instruction given to the jury. The suit is for the publication of an alleged libel, in “ The Baltimore American,” a newspaper of which the defendants arc editors, proprietors and publishers. The plaintiff’s occupation was selling newspapers and periodicals on the railway trains between Washington and Baltimore. The alleged libel was contained in an article published, in “ The American,” the whole article was given in evidence. After stating that passengers passing through Baltimore from Washington, on their way to Philadelphia, had been, on several occasions, assaulted and beaten by ruffians, and that the repetition of — 133 — swell outrages reflected discredit on the Police Department as well as on the Railroad Companies; it then refers to a particular instance in which such an outrage had been committed on a Mr. Clary, a passenger, at the President Street Depot, in' Baltimore, and commenting thereon, states that “ the object of this brutal outrage was to prevent Republican clerks, and others temporarily employed in Washington, from going to Philadelphia to vote;” then adds the following, which constitutes the libellous matter complained of by the plaintiff? and set out in the declaration : “A young man on the Washington train, who is engaged in selling papers, and who takes every occasion to insult Republican passengers, appears to have been in collusion with the ruffians. On approaching the city he went around to take a vote of the passengers, the object being evidently to spot the Republicans, that the assailants might know who were their friends and who their opponents. The scheme was successful, and on passing through the city, an ex-police officer of Washington pointed out the victims, who had unwittingly proclaimed their political! predilections in favor of Grant and Colfax.” The declaration alleges as special damage, that he lost his situation as newsboy in consequence of the publication, and also claims for general damages. The defendants plead “that they did not commit the wrong alleged,” upon which issue was joined. After the evidence on both sides had been concluded, the Court below rejected the five prayers offered by the plaintiff, and instructed the jury as follows: “To entitle the plaintiff to recover in this action, the jury must find that the writing, set out in the declaration, was published by the defendants, of and concerning the plaintiff. But if they shall also find that at or just previous to the time of the said publication, the peace of the city was repeatedly disturbed, and the rights of private persons traveling on their own lawful business between Washington and Philadelphia, violently and unlawfully invaded and violated — 134 — ■by evil doers, who were not arrested nor punished, as detailed in- the evidence, then it was the right and duty of the defendants, as publishers of a public newspaper, to publish the facts which came to their knowledge, constituting the said crime, and to comment thereon with such severity of rebuke as a flagrant breach of the peace deserves; and-such statement and comment, if fairly and bona fide made with a view to the public good, was a privileged communication, free from the legal presumption of malice which attends a libellous publication not privileged; and the plaintiff is not entitled to recover. But, in order to entitle the defendants to a verdict upon the ground of privilege, the jury must find that they were actuated by proper motives, exercising reasonable prudence in the ascertainment of the facts, and had reasonable grounds to believe the statement made by them was true, and that they made the same without malicious motives.” “If, under these instructions, the jury shall find a verdict for the plaintiff, then they are at liberty to give compensatory damages for such injury as the plaintiff may have proved himself to have sustained; and if they find express malice on the part of the defendant, or the absence of good faith or reasonable prudence, then they may give such exemplary damages as they may think such a state of case justifies.” We think there was error in these instructions, both in respect to the nature and extent of privilege ascribed to the defendants, and in the rule of damages laid down for the jury.' There can be no doubt or question that the defamatory words set out in the declaration are, in themselves, libellous, and if published of and concerning the plaintiff, entitle him to maintain the action, unless the defendants are protected from liability by reason of some privilege accorded to them by the law. To make defamatory words actionable per se, when they are written or published, it is not necessaiy that they should charge a party with a crime or offence which would subject him to indictment or ignominious punishment. There is a broad and just distinction, in this respect, between — 135 — spoken words and words written or published. Chancellor Kent says, 1 Comm., 620: “ Expressions, which tend to render a man ridiculous, or degrade him in the esteem and opinion of the world, would be libellous if printed, though they would not be actionable if spoken. So, if they tend to injure his reputation and expose him to public hatred, contempt or ridicule.” Tins proposition was laid down by Justice Bayley, in McGregor vs. Thwaites, 3 Barn. & Cres., 33. It has been affirmed, in many other cases, some of which are cited in the notes in Kent’s Commentaries, above referred to, and was recognized and affirmed by the Supreme Court in White vs. Nicholls, 3 How., 266. As was said by Justice Daniel, in the case last cited: “The principle of the law always implying injury, whoever the object or effect is the exposure of the accused to criminal punishment or to degradation in society.” The defamatory words here charged being per se actionable; the question arises, whether the publication comes within the class designated as privileged, so as to entitle the defendants to exemption from liability for the consequences, even though the charge prove to be untrue; provided they made it in good faith, believing it to be true, and had reasonable grounds for that belief, after exercising reasonable prudence in the ascertainment of the facts. This seems to have been the view of the law taken by the Court below, and embodied in the instruction given to the jury. The privilege accorded to the defendants is supposed to grow out of the fact that they were publishers of a public newspaper, and as such, had certain duties to perform towards the public which entitle them to be protected from liability to the plaintiff. In our judgment, the Court below has extended the doctrine of privilege farther than is warrautcd by authority, or consistent with sound reason and public policy. It seems to us that the publication before us, in so far as it contained charges against the plaintiff, does not come within any of the classes designated — 136 — by the law as privileged communications or publications. These have been very well defined by the Supreme Court in White vs. Nicholls, 3 How., 286, 287; it is unnecessary to repeat them here; and is sufficient to say that, in our judgment, they do not apply to the present case, or entitle the defendants to the protection claimed on the ground of privilege. We do not propose here to define the exact limits of the protection which the law throws over the publishers of newspapers. In respect to them, it is said by Towksend, in his work on Slander and Libel, “ it is argued that the exigencies of the business of a newspaper editor, demand a larger amount of freedom. That circumstances do not permit editors the opportunity to verify the truth, prior to publication, of all they feel called' upon to publish, and that they should not be responsible for the truth of what they publish. Some concessions have already been made to these arguments. At present, the law takes no judicial cognizance of newspapers, and independently of certain statutory provisions, the law recognizes no distinction in principle between the publication by the proprietor of a newspaper and a publication by any other individual,” and for this the author cites, Davison vs. Duncan, 36 Eng. L. & Eq. R., 218; Campbell vs. Spottiswoode, 8 Law Times Rep., N. S., 201, S. C., 3 Fos. & Fin., 421; w7e may add to these Behrens vs. Allen, before Erle, C. J., at nisi prius, 3 Fos. & Fin., 136. In Sheckells vs. Johnson, 10 Cush., 25, it was held by the Supreme Court of Massachusetts, “that a newspaper proprietor is not privileged as such in the dissemination of news, but is liable for what he publishes in the same manner as any other individual.” We have examined the cases of Kelly vs. Tinling, Law Rep., 1 Queen’s Bench, 699; Wason vs. Walter, 4 id., 73, and Risk Allah Bey vs. Whitehurst, 18 Law Rep., N. S., 615, cited and relied on by the appellees’ counsel in the argument in support of the privilege claimed for the defendants in this case. But, in our opinion, they do not support the position for — 137 — which they have been cited. In, Kelly vs. Tinting, it was held that there was a lawful privilege in a church warden to discuss publicly the use to which an incumbent had put the vestry room. In Wason vs. Walter, a like privilege was ascribed to the proprietor of a newspaper, to make a faithful report of a debate in the House of Lords; and it was held, that although it might contain matter disparaging to the character of an individual, it wTas not actionable. But the publication is privileged on the same principle as an accurate report of proceedings in a Court of Justice is privileged, viz : that the advantage to the community at large outweighs any private injury resulting from the publication. The ease of Risk Allah Bey vs. Whitehurst, was decided on the same principle. That related to a publication of the proceedings of a Court of Justice. The opinions in these eases were rendered by the very able Chief Justice Cockbtjbn, and commend themselves to our admiration and approval, not less for the soundness of the legal propositions therein asserted, than for the clear and forcible manner in which they are expressed. The proposition which they maintain is, that any man, editor or private citizen, has a right honestly to discuss all matters of public interest, and to comment on and criticise fairly the public acts of official persons. Such a proposition wc do not for a moment question. So far as the publication before us was confined to the statement of the riotous and violent assaults upon passengers, and reflected upon the delinquency of the police authorities and other officials, if made in good faith and upon reasonable grounds of information, the case comes within well-recognized principles, and the publication is, to that extent, privileged. But such privilege does not extend to the right of charging the plaintiff, a private citizen, with having been in collusion with the ruffians and wrongdoers, and aiding them in selecting the victims of their intended violence, by “spotting the Republicans” for that purpose. . — 138 — (Decided 21st February, 1871.) Such a charge is not within the editor’s privilege; he makes it upon his responsibility as any other citizen, and is bound to establish its truth by his pleading and proof, or to' answer to the party for the damage and injury he may suffer in consequence of the charge. The rule of damage in such action is, that the plaintiff, if the verdict is found in his favor, is entitled to recover compensation for such damage as the jury may find he sustained as the direct consequence of the publication; and if the jury should find from the evidence that the publication proceeded from express malice or ill-will to the plaintiff, then the jury may award to him such exemplary or punitive damages as they may think the facts of the case justify. The instruction of the Court below, we think, did not state the rule with clearness and precision, and was calculated to mislead the jury. It follows, from what has been said, that in our opinion the first, second, third and fifth prayers of the plaintiff below ought to have been granted, and it was error to reject them. The fourth prayer, we think, was properly refused, for the reason that the subsequent publication by the defendants offered in evidence, and referred to in the prayer, did not, according to a fair construction of its terms, contain a repetition of the libel complained of; and it would have been error to instruct the jury that it was evidence of actual malice on the part of the defendants. The judgment must be reversed and a new trial ordered. Judgment reversed, and new trial ordered.