Lowe v. Herald Co.

SaNDeord, C. J.: This is an appeal from the judgment against the defendant, and from an order denying the motion for a new trial. The action was brought against the defendant, a corporation, publishing in the city of Salt Lake a newspaper known as the “ Salt Lake Daily Herald,” to recover a judgment for having, as the plaintiff alleges, published false, scandalous, malicious and libelous matters concerning the plaintiff. The libel, as set out in the complaint, charged that the defendant committed adultery with a female, a half-witted girl; that from the current report of the affair it seemed to be a premeditated case of beastly rape. It is not necessary to state it in detail. The plaintiff alleged that by the publication he had suffered greatly in his reputation and character. The defendants, in their answer, denied that the publication was false or malicious, or that it was intended so to be; that the said publication was true; that it had been published in this paper as an item of news, in its usual course of business, without malice or ill will, and without any attempt to defame or injure the plaintiff, but with a full belief in the truth of the statement. The defendant contends on this appeal that certain rulings made on the trial, and to which exceptions were taken, were erroneous. These were the exclusion of the details of the complaint made by the female shortly after the occurrence, the admission of evidence tending to show the plaintiff’s good character at other places than where it was attacked by the evidence offered by the defendant; to the charge to the jury, and to the verdict rendered, on the ground that it. was excessive. The fact of publication by the defendants in their newspaper of the statement relative to the plaintiff was admitted. There is no doubt but that the published account was unquestionably a libel. It tended to blacken the reputation of the plaintiff, and expose him to public contempt. It accused him of a crime for which he could have been indicted and punished by law. White v. Nicholls, 3 How., 267, 291. No person of ordinary intelligence can read the publication complained of and resist the conclusion that it [179] charged a grave offense upon tbe plaintiff. An editor or publisher of a newspaper lias a right to publish the fact that an individual has been arrested, and upon what charge; but he has no right to assume that the person is guilty, or to hold him out to the world as such. It was in fact immaterial whether a charge of adultery or of rape was made. The question for the jury was not whether it was one kind of felony or another, but whether the publication was true as was asserted by the defendant. The Court instructed the jury as to what constituted the crime of rape, and it is claimed, on appeal, that this was error,.. such instructions being inapplicable to this case. It was not, perhaps, exactly applicable, yet it did not, and could not, mislead the jury. In other portions of the charge the learned Judge correctly laid down the law, and we find no error of which defendant can complain in this respect.. During the trial the Court received evidence tending to' show that the woman had made a complaint or statement of the act that plaintiff had committed on her person, but refused to allow the defendants to go into the particulars or details of her statement. It is urged that the witness should have been allowed to give the precise language used in full; but we can see no error in thus limiting the testimony. It was sufficient to indicate the character of the alleged act, and the omission of the full particulars caused no injury to the appellants. It is urged that because the Court charged the jury that they should receive the testimony of Elizabeth G-rant, a witness examined by the appellant, with caution, and scrutinize it- carefully, it was error. It had appeared that she was a weak-minded girl, possessing but little intelligence. We do not find that there was any error on this point. A Judge may, if necessary, single out a particular witness,, and charge the jury as to his credibility. People v. Cronin, 34 Cal., 204. A further ground of error is urged that the damages, were excessive; but the rule is well settled that in actions, of this kind a new trial will not be granted for this reason. It is the special province of the jury to decide such cases • under instructions from the Court. 1 Suth. Dam., 810; [180] Wilson v. Fitch, 41 Cal., 386. The damages are to be fixed by tbe jury upon a careful consideration of tbe charge made by tbe defendant, tbe circumstances of its publication, tbe extent of its circulation, and the natural consequences of such a publication. Exception is taken to that poi'tion of tbe Judge’s charge where be said: “And if you find for tbe plaintiff, you may take ¡into consideration tbe fact that tbe defendant has alleged tbe, charges to be true in its answer, and attempted to prove them true on this trial as enhancing damages, and as evidence of malice, unless you believe from the evidence that tbe allegation of tbe truth of such charges was made in good faith, and with a reasonable expectation of proving them, and such attempt to prove was also made with a like expectation, ■and in good faith.” Under this instruction the jury was left, and we think properly left, to pass on tbe question involved in a justification. The law gives to the defendant a right in his answer to allege the truth of the matter charged as defamatory. If he exercises this right in good faith, under an honest belief in the truth of his allegation, he is not to suffer the penalty of exemplary damages; but if the jury find it was averred of record with intent to injure the plaintiff, they may rightfully consider it as an aggravation of the injury. The rule laid down in Fero v. Roscoe, 4 N. Y, 165, and Farley v. Ranck, 3 Watts & S., 555, has been somewhat modified. In Rayner v. Kinney, 14 Ohio St., 283, we find an authority which sustains the instructions of the Court in this respect. If the defendant satisfies the jury that he was not actuated by malice, but published what he did believing it to be true, that should be considered in mitigation of the damages. See, also, Distin v. Rose, 60 N. Y., 122-128. The defendants, in their answer, deny that the plaintiff has suffered in his reputation or character, and testimony was presented by them tending to show his general character. The Court, in its ruling on this point, said: “ The question as to which there seems to be some controversy is as to whether the charge that the plaintiff had committed rape on the prosecuting witness authorized the defendant to attack the general reputation of the plaintiff in all re181 speets, or whether it is to be confined, to the particular side of his character, so to speak, attacked. The general rule would be that he would be confined to the particular matter involved in the charge. * * * This charge, however, of rape is a pretty broad one. It is a very serious one, and it involves something more than a mere libel, as stating that a man has committed perjury, because the rape not only attacks a man’s reputation for chastity and virtue, but it attacks him as an orderly and law-abiding man. * * * I am not clear that to charge a man with rape does not involve his moral character. Certainly it involves that so far as it relates to his being a man of chastity and virtue, and so far as being an orderly and quiet man; but I should be inclined to hold that it would not be proper to go into an inquiry as to what his reputation was as to honesty and integrity in business matters, but to confine it to his general reputation as a man of chastity and virtue, and as an orderly and law-abiding man.” To this ruling exception was taken by the defendants, and thereafter testimony on this point was limited to general reputation of the plaintiff in regard to chastity and good morals. The defendants urge that this ruling was erroneous. The general character of the plaintiff at the time the libel is published is deemed to be in issue, for that is the foundation of his claim for damages. Where a man of fair character has been attacked, the law will repair the damages. The defendant may show the general bad character of the plaintiff, because he relies upon its goodness before it has been calumniated. Bodell v. Swan, 3 Pick. 377; Stone v. Varney, 7 Metc. 86-90; Paddock v. Salisbury, 2 Cow. 811. It was held in the case of Clark v. Brown, 116 Mass. 504, which was an action of slander, that the defendant may introduce evidence in mitigation of damages, showing that the plaintiff’s general reputation is bad, and may also show that his general reputation is bad in respect to the charges made by the defendant’s slanderous words. The action is for an injury to the position and standing of the plaintiff among his fellows, and the defendant may show that the plaintiff’s general reputation is already bad, with a view of ■ showing that no serious injury can have been inflicted on [182] bim. Page 509. In Bowen v. Hall, 20 Vt., 232, the Court decided that the defendants could prove the general bad character of the plaintiff in respect to the imputed offense, and also the general character of the plaintiff. A plaintiff’s character may be beyond suspicion in respect to the imputed offense, and yet his general character in other respects may be impeached. In such a case the defendant should be allowed to show the general bad character of the plaintiff, and also the general bad character in respect to the particulars in which it has been assailed. A reputation already damaged, either in the very point in controversy or general, is not so valuable as a reputation which is unspotted. When a jury is called upon to fix, by a money judgment, the amount of injury a man’s reputation has sustained by a particularly injurious act, the measure of damages must be regulated in accordance with commercial principles. We are of the opinion that the defendant should have been allowed to present evidence as to the plaintiff’s general reputation or character, as well as evidence in regard to his chastity and good morals, and that it was error to restrict the evidence to showing only the plaintiff’s alleged bad character in the respect of chastity, and as an orderly, law-abiding man. As there must be a new trial of this action, we do not consider it necessary to discuss the other questions raised by the appeal. The judgment should be reversed, and the cause remanded for a new trial.