Merrey v. Guardian Printing & Publishing Co.

The opinion of the court was delivered by Voorhees, J. Among the errors assigned why the judgment should be reversed is the court’s refusal to nonsuit and to direct a verdict for the defendants. It is manifest that at the close of the defendants’ case there had not developed a condition which the court could deal with as a matter of pure law; hence these motions were properly refused. The court, however, at the end of the charge, at the request of the plaintiff, instructed the jury as follows: “As no justification can be made under the pleas filed in this case of that part of the published article of May 9th, 1908, which the defendants admit publishing, in relation to the plaintiff’s official position being used to protect lawbreakers, the plaintiff is entitled to a verdict. As I read the plea I so charge you.” This was really a direction to the jury to find a verdict for the plaintiff and assess his damages. The court predicated its right to so direct upon the pleas filed by the defendants. It is true that the second plea is not a plea of truth and justification as to the whole article. A reading of the articles will disclose the fact that certain accusations are made against the city counsel, as such, and certain others are made against the city officials. The latter, by innuendo, have been by the plaintiff made to refer to himself; the former need no innuendo. All the accusations of the former class the defendants have by their pleas justified as true. The remaining class they defend under their plea of general issue and the other pleas. The charges which were attempted to be justified are in — 183 — substance that the actions of the city counsel make it impossible to punish violation of the excise laws, and that the recent action of the city counsel has brought forth caustic comment, which does the city harm because it is true, and that the extracts from two leading papers serve to show how the city’s reputation is being blasted. The remaining charges, not justified, are that the men sworn to uphold the Jaw use the power of office to protect lawbreakers and malve it impossible to punish open violations of the law, and that hurts Paterson more than anarchy because it cannot be truthfully contradicted. These two sets of accusations are quite separate. One is confined to the city counsel and is concerned with the violation of excise laws. The other refers to the city officials in protecting lawbreakers in general in open violations of the law. The truthfulness of a libel is a complete defence in a civil action, but it must be pleaded fully and as to every particular, and be strictly proved to be availed of. But the rule that in actions of libel the justification pleaded must be as broad as the charge is not to be construed to mean that it must embrace every libelous charge contained in the declaration. When the charges made are separate and distinct the defendant may justify as to some and plead otherwise as to others. Lanpher v. Clark, 119 N. Y. 472; Holmes v. Jones, 121 Id. 461; Smith v. Tribune, 4 Biss. 477. Whether the defendants had succeeded in establishing the pleas of justification as to those charges to which these pleas were interposed and confined, was for the jury. The plaintiff’s own testimony recited facts and circumstances in connection with the postponement and dismissal of the excise cases and regarding his own conduct from which a jury might have been satisfied of the truth of the charges. In any aspect it was not a question for the court. As to the part not justified it was incumbent upon the plaintiff to satisfy the jury that he was included in the term “city officials.” He asserted this io be the fact. “Whether a libel was published of the plaintiff or whether by the person mentioned in the libel the plaintiff was intended, is a ques — 184 — tion of fact for the jury.” Van Vechten v. Hopkins, 5 Johns. 211. Under the plea of general issue the truth of the libelous matter also may be proved, but to the extent only of rebutting the presumption of malice. Here also would arise, a question for the jury as to malice. For, if the jury were satisfied of the truth of the charges, ■ although the justification were not specially pleaded, the presumption of malice would be rebutted. The defendants also asserted that the communication was on a privileged occasion and constituted onfy fair comment and criticism upon the public acts of a public official. This they attempted to plead, although a formal plea to that effect is not necessary to maintain such defence, which may be availed of under the general issue. Comment of this kind is not privileged by reason of the occasion in the strict legal sense of that term. What is really meant is that fair and bona fids comment, and criticism upon matters of public concern is not libel, and that the words are not defamatory. Henwood v. Harrison, L. R., 7 C. P. 606; Campbell v. Spottiswood, 32 L. J., Q. B. 185. See, also, Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242. That this is the correct view is apparent from the fact that the burden of proving actual malice in cases of this class is, not thrown upon the plaintiff as it is in cases strictly of privilege. Although in Gott v. Pulsifer, 122 Mass. 235, a case concerning the once famous Cardiff Giant, Chief Justice Gray holds to the contrary, and saj^s that “the editor of a newspaper has the right, if not the duty, of publishing for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls .within the class of privileged communications for which no action can be maintained without proof of actual malice.” But without deciding which view is in the abstract correct, a question for the jury is presented. If not a matter of strict privilege, the jury are still to speak as to the bona fides and — 185 — fairness o£ tlie criticism. If one of privilege in. its strict meaning, then the question of actual malice is for the jury. In Campbell v. Spottiswood, supra, Chief Justice Cockburn says: “A line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another whose conduct may be fairly open to ridicule or disapprobation, base, sordid and wicked motives, unless there is so much as ground for the imputation that a jury will find not only that he had an honest belief in the truth of his statements but that his belief was not without foundation. I think a fair position in which the law may be settled is this: That where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives, which arise fairly and legitimately out of his conduct, so that a jury shall say that the criticism was not only honest but also well founded, an action is not maintainable.” See 3 Am. & Eng. Anno. Cas. 647, where many authorities are collected. The facts constituting the public conduct commented upon in this ease were largely proved by the plaintiff. The occasion was one of public interest. Whether the comments were made bond fide or not, whether they exceeded the limits of fair criticism, whether the imputations upon the plaintiff’s motives arose fairly and legitimately out of his conduct, were questions for the jury under proper instructions. The trial court, however, evidently held the view that this defence was not admissible except in connection with a plea of justification and that the latter must be broad enough to include every charge laid, otherwise the direction to find for the plaintiff for failure properly to plead justification would not have been given. By reason of this misdirection the judgment must be reversed, and a venire de novo awarded.