Cooper v. Illinois Publishing & Printing Co.

Mr. Justice Taylor delivered the opinion of the court. This is a suit for damages for alleged libel. 'It was here once before on a question of pleadings. Cooper v. Lawrence, 204 Ill. App. 261. Since then it Jhas been tried before a jury and a verdict and judgment rendered against the defendant in the sum of $75,000. From that judgment this appeal is taken. In our former opinion we set forth a fair résumé of the alleged libelous words so that it is not now necessary to reiterate them, at large, here. In the former decision of this cause, we stated that the alleged libelous words charged (1)—in the first count—“moral and intellectual unfitness”; (2)—in the second count—“wickedness, incapacity and unfitness”; and (3)—in the third count—that in his court “young girls may be attacked with impunity”; and he “will not in such cases apply the law and administer justice.” We further stated that the alleged libelous words set' forth in each count charged the plaintiff with unfitness and tended to degrade him in the eyes of the public. We also stated as a principle of the law of libel that “the subject of reasonable comment and fair criticism must be a fact and not a libel”; that it must be the truth and not falsehood. And, in discussing certain pleadings, although we intimated that the defendant would be entitled to an endeavor to prove that the words charged were fair comment and did not in and of themselves constitute libel, we only intended by that to announce a general rule and did not mean that, where the alleged comment and criticism is based upon that which is untrue, it may still be put in as defense. Further, we intimated that fair comment might be put in evidence under the general issue, but, it would seem to be proper practice to plead that defense especially. Seemingly, the instant case is one of first impression in the jurisprudence of English speaking countries, with, possibly, the exception of Robinson v. Treadway, 2 J. J. Marsh. (Ky.) 540, decided in 1829. In many ways it is a case of great import as it affects the constitutional privilege of the right of free speech. The press is the most important single psychological influence in our civilization and determines, at least in part, the conscious thinking and will and conduct of a great multitude of people. Wielding such power and given by the Constitution the right to utter the truth with impunity, still, in the interest of organized society, that authority, under the guise of fair comment, should not be allowed unjustly to assail the integrity of the bench. And, so, it is the law, that, although publishing the truth, without malice, carries with it immunity from prosecution, publication of that which is false entails liability. Recognizing as we do, therefore, the magnitude of the matters involved, we have considered the issues in this cause with the greatest care. It is the theory of the plaintiff, that, as he, on May 29, 1913,—pursuant to a petition filed by Rinaker, Cunnea and Haight, who had been, together with Maelay Hoyne, candidates at a general election held November 5, 1912, for the position of State’s Attorney—ordered a special venire for special grand jury and allowed the prayer of a petition for the appointment of a special State’s Attorney, and appointed, one John E. Northrup as special State’s Attorney to conduct certain investigations, having special reference to certain alleged frauds and violations of the election law which had been practiced in favor of Maelay Hoyne, the defendant being interested in assisting Maelay Hoyne, wickedly and maliciously published in the newspaper called the Chicago Examiner on June 2, 1913, the defamatory and libelous matter charged in the various counts of the declaration. The theory of the defendant is that the words charged were true and that they were privileged as fair comment and criticism and were published with good motives and for justifiable ends. ■ The cause was tried before a jury. The trial was protracted, and a large volume of evidence introduced. And, considering the exceptional nature of the issue and that the cause is, practically, one of new impression, it is not surprising that it is now contended that at the trial substantial errors were made, especially in ruling upon proffered evidence. The following contentions—which we shall consider seriatim—are made by the defendant: (1) That the court erred in permitting- the plaintiff to file the amended declaration, and in sustaining the demurrer to pleas of the statute of limitations to the amended declaration; (2) that the second count of the amended declaration fails to state a cause of action; (3) that the court erred in excluding evidence offered on behalf of the defendant; (4) that the court erred in admitting, over the objection of the defendant, improper testimony on behalf of the plaintiff; (5) that the court erred in instructing the jury. (1) Did the court err in permitting the plaintiff to file an amended declaration, and in sustaining the demurrer to the pleas of the statute of limitations.to the amended declaration? At the close of plaintiff’s evidence the defendant moved that the jury be instructed to find the defendant not guilty. The defendant made a similar motion concerning each count of the declaration, basing those motions on an alleged variance between the original declaration and the proof. Thereupon, counsel for the plaintiff asked leave to file an amended declaration. That was objected to, but allowed by the court, and an amended declaration was filed instanter. Concurrently, leave was given the defendant to plead to the amended declaration and, accordingly, the defendant pleaded—to each of the three counts of the amended declaration—the general issue, the statute of limitations and justification; and, also, in addition, a plea of fair comment to the first and third counts. The plaintiff filed similiters to the pleas of the general issue; replications to the pleas of justification and fair comment; and demurrers to the pleas of the statute of limitations: The demurrers were sustained. We are of the opinion that the court did not err in permitting the amended declaration to be filed. In the amended declaration there was added, to the words charged in the first count of the original declaration, the following: “Miss Laura Ebel, probation officer of the Juvenile Protective Association, an observer for many years of court dealings with children, made that statement yesterday and then proceeded to tell why she made it, why her own organization and many other welfare bodies are seeking to protect children against Judge Cooper’s attitude. “Miss Ebel declared that her own organization had found it necessary to place a private stenographer in Judge Cooper’s court in order that a record might be kept of the many ways in which the court is declared to have favored the defense in such cases. “Action Held Necessary. The steps taken by the Protective Association in employing a stenographer were without precedent, but it was agreed that they were necessary. Among the prominent men and women who said the stenographer was needed for the sake of a just record were: Mrs. Joseph T. Bowen, Mrs. Charles M. Walker, Mrs. George Dean, Mrs. Harry. Hart, Miss Jane Addams, Professor Allen Hoben, Dean Walter T. Sumner, Father Andrew Spots, Babbi Joseph Stolz, Mrs. Julia C. Lathrop, Judge Harry Olson and Sherman C. Kingsley. All these are executive officials of the Association.” Counsel for the defendant insist that the words just quoted, which were added to those in the original declaration, are “clearly and distinctly libelous” and “actionable per se unless privileged,” and therefore stated a new cause of action. It will be observed that the first paragraph merely purports to give Miss Ebel as authority for a certain statement and why she and others sought to protect children against Judge Cooper’s attitude. In the second paragraph there is what purports to be a statement by Miss Ebel that a certain organization concluded to place a stenographer in plaintiff’s court in order to keep a record of the cases where he favored the defense. In the last paragraph there is stated the necessity for the employment of a stenographer and that a certain number of people, mentioning them by name, said it was necessary “for the sake of a just record.” Counsel for the defendant have cited and discussed many cases tending, as it is claimed, to show that the addition of the foregoing paragraphs to the first count of the original declaration made out a new cause of action, and as the statute of limitations had run, the demurrer should have been overruled. We are of the opinion, however, that the amended count did not state a new cause of action. When the amendment was made, the text of the words still conformed to the text of the article published. The first count of the amended declaration was still based upon the same article as the original count; it was published by the same defendant about the same plaintiff, and at the same time and in the same newspaper, and an analysis of the additional words discloses that no new and different libelous imputations are set forth. The reading of the words in the first count of the amended declaration would give rise in the mind of the ordinary reader to identically, practically considered, the same ideas and involve the same imputations and charges as the reading of the words set forth in the first count of the amended declaration. Then, too, judgment on the original count would have been res adjudicate/, in a suit based upon the amended count. We are, therefore, of the opinion that the amended first count did not state a new cause of action. As to the contention that changes and additions were made in the phraseology of the text set forth in the second and third amended counts, we are of the opinion that they are insubstantial and without merit. (2) Does the second count of the amended declaration fail to state a cause of action1? It will be observed that facts constituting the trial record of Judge Cooper are not set forth in the partieular text which constitutes the libelous words of the second count; and it follows that any one reading that particular publication would naturally assume that the injurious statements therein made were considered to be sufficiently proven by certain extrinsic facts known to the publisher. It is not as if the article in question had recited what purported to be the trial record of Judge Cooper and had then proceeded, by way of inference and deduction, to make comment thereon, for in such a case the reader of that publication would then be able himself to make inferences and deductions and so determine whether the comment which was actually published was reasonable. In the article in question the reader is merely presented with what, in effect, is a series of dogmatic statements. He is given no opportunity to weigh and balance; he is told bluntly that Judge Cooper is unfit. It may well be said that some of the words and phrases are, technically considered, in the nature of comment upon what is implied in other words in the same publication and that the facts and such comment are so "intermingled that it is difficult to disassociate them- one from the other. In such a case perhaps the best test is to consider what thoughts the reading of those words would naturally give rise to in the mind of the average person. It is strenuously contended by counsel for the defendant that the trial court should have submitted the article in question to the jury to determine whether it was fair comment and criticism. In Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 61 So. 345, the court said: “Whether the libel complained of may fall within this rule of privilege is a question of law for the court,” etc. Further, in the same opinion, the court said in regard to a certain charge which had been made, “As matter of law, it falls outside of the scope of comment and criticism, as we understand their field of operation,” etc. In Patten v. Harper’s Weekly Corporation, 93 N. Y. Misc. 368, 158 N. Y. S. 70, the court said: “If the charge were true as laid, it would be open to the defense of justification but if asserted to be comment, its appropriateness as such should be dealt with as a question of law.” In Bingham v. Gaynor, 141 N. Y. App. Div. 301, the court said: “Whether the bounds of fair criticism have been exceeded or not is a question of law for the court.” Applying the foregoing principles, we are of the opinion that the words charged in the second count are, as a matter of law, statements of fact and not comment; and that unless proven to be' true they are actionable; and, further, that the trial court should not have submitted to the jury any part of the article in question to determine whether or not it was fair comment. (3-4) Did the court err on matters of evidence? That question involves the following: (a) The list of cases identified as defendant’s exhibit 2; (b) What transpired in certain other cases tried before the plaintiff; (c) The rejection of the certified copy of the order in the Morgan case; (d) Sources of information; (e) Evidence rejected tending to prove facts set up in the alleged libels; (f) Evidence of reputation in the trial of sex cases; (g) The proffer of the remainder of the article entitled, Plaintiff’s Exhibit 5-a; (h) The Cooper-Quirk conversation; (i) Subsequent publications. (a) The defendant complains that the court erred in refusing to admit in evidence a document prepared by one of the Assistant State’s Attorneys and given to the defendant’s reporter prior to the publication complained of. That document purported to be a list of all the sex cases that appeared on Judge Cooper’s call while he sat in the criminal court from September until May, together with notations showing what cases were nolled or stricken off the call, etc., and the final disposition made of them by him. The reporter Griswold testified that he had obtained that list from the Assistant State’s Attorney, and from it checked over the records prior to the publication complained of. That was all the defendant entitled to. The document itself was not admissible for any purpose. It was clearly in the nature of hearsay. It did not tend to prove the plea of justification, nor was it admissible in mitigation of damages. Spolek Denni Hlasatel v. Hoffman, 204 Ill. 532; O’Malley v. Illinois Pub. & Prtg. Co., 194 Ill. App. 544; Stephens v. Commercial-News Co., 164 Ill. App. 6. (b) The defendant offered to show by the witness, Berger, that there were certain verdicts of guilty and certain new trials granted, and that certain things were done in court at the time certain motions for new trials were discussed. We are of the opinion that the witness should have been allowed to testify as to what transpired in his presence and that of the plaintiff in the court room. Also, as to the Prince and Thompson cases, any and all evidence offered in' regard to what transpired in the trial of those cases was competent as tending to prove justification. It is stated by counsel for the defendant that the trial court apparently excluded such evidence on the ground that these cases were not mentioned in the libels. It is our opinion that in proving justification any overt acts and all conduct on the part of the plaintiff in the trial of sex cases, and any and all evidence submitted before him in such cases was competent. (c) Exhibit 4 was a certified copy of an order appearing in the record of the Morgan case, wherein the defendant was adjudged guilty of the crime of ^assault with intent to commit rape and sentenced to pay a fine of $5 and no costs. When the defendant offered the certified record in evidence, plaintiff’s objection to it was sustained. In our opinion that was error. The defense of justification may be made out by proof of any facts, whether mentioned or referred to in the publications complained of or not, which go to establish the truth of the statement -alleged to be libelous, the special plea of justification being such as to warrant the admission of the evidence offered. In the special plea of justification to the second and third counts of the amended declaration, the facts shown- by the record in the Morgan case are specifically pleaded. Until the contrary is established by evidence, we must assume that the facts set forth in that record speak the truth and that they spoke the truth when the defendant’s reporter consulted them. That being the case, the certified copy of the record showing the judgment of the court was admissible under the plea of justification and while it may be said that the facts thus shown would not justify any of the statements complained of, if that were the sole justification offered, it was proper for those facts to be shown, and together with all the other facts in evidence submitted to the jury to determine the issue of justification. Inasmuch as the evidence was admissible on the issue of justification, it does not come within the rule urged by the plaintiff that evidence which does not tend to justify but merely tends to cast suspicion is not admissible in Illinois even in mitigation of damages. (Spolek Denni Hlasatel v. Hoffman, supra.) The exhibit in question was therefore admissible also on the issue of defendant’s good faith and in mitigation of damages. We do not agree with plaintiff’s contention that it was not offered for that purpose. While the witness Griswold was on the stand he was asked by counsel for defendant what he had done, if anything, in reference to the records of the criminal court, after he had received defendant’s exhibit 2 for identification (the list of eases tried before Judge Cooper) and before the publication of June 2. Counsel for plaintiff, in interposing an objection to that question, placed it “on the ground that it is immaterial, irrelevant and incompetent, upon any issue in this case, and that if offered to rebut malice, or in mitigation of damages * * * it is inadmissible on the ground of tending to cast suspicion.” There followed some remarks between' court and counsel on the question thus presented and the court sustained the objection following which counsel for defendant made the offer of proof with reference to the defendant’s exhibit 4 for identification, saying he offered to prove by this witness that prior to the publication of the article of June 2, this witness consulted the records of the criminal court in the case of the People of the State of Illinois v. Thomas Morgan, and- that he found spread of record an order as set forth in defendant’s exhibit 4 for identification, which information he reported to defendant and that it was in the defendant’s possession at the time of the publication of the articles in question. That the offer included reference to the issue of good faith and want of malice on .the defendant’s part, seems to admit of no doubt. It was not necessary that the offer be limited to that issue, as it might have been if it were not admissible on any other issue. (d) The witness Griswold, for the defendant, testified that before the publication of the article in question he had talked with Mrs. Britton, Miss Ebel, the State’s Attorney and some of his assistants. His testimony to that fact was permitted, but the court refused to allow the witness to testify further as to what any of them told him. That was clearly correct, 'as what was offered was hearsay. The Spolek Denni Hlasatel v. Hoffman, supra; O’Malley v. Illinois Pub. & Prtg. Co., supra. According to these authorities, the conversations themselves were inadmissible upon any theory of the defense. Defendant got all it was entitled to by shoving that the witness had made the investigation before publishing the articles. (e) As to the evidence which was rejected and which tended to prove the facts set forth in the words charged: In the Smith-0sborne case, two men were prosecuted under an indictment for rape and indecent liberties. They were found guilty of the latter charge. A motion for a new trial'was made, and granted. Witnesses testified that the plaintiff in granting a new trial said that he did so for the reason that the “prosecuting witness’s testimony was not' corroborated.” On the trial of the instant case that testimony was not denied. The defendant offered to prove that a number of witnesses testified in the criminal court case to certain facts which would tend to show corroboration of the prosecuting witness’s testimony. That was properras well as all else'that transpired at the trial. As to the Loqueroio case, the court sustained objections to questions put to Miss Ebel, relating to the 'substance of the testimony by various witnesses at that trial. The testimony, we are of the opinion, was competent on the ground that it is the evidence of the witness as to what actually transpired. Counsel for the plaintiff argues that the trial court allowed the defendant to introduce any facts mentioned in any of the libels concerning the Loqueroio case, which was known to Miss Ebel and Mrs. Britton, and that that was all that was competent. We are not of that opinion. As we have said before, the defendant was entitled to be allowed to introduce the testimony of the witness in question concerning anything and everything that transpired in the actual trial of the case. It is our opinion that an offer of any evidence of what transpired in the trial of any sex case was competent. ■ It is claimed by counsel for the plaintiff that in every case where the defendant failed to put in what at least purported to be the substance of all the evidence in any particular sex case the trial judge, on a proper motion, should then exclude all that evidence from consideration by the jury, and contended further that, even all the testimony in any one of such cases, would not be competent. We take it, that is based, in part at least, on the theory that a jury is not entitled to pass upon the fitness or the unfitness of a judge, as a result of their consideration of the quality of his judicial acts in his decision of cases. And further, it is contended that even where the defendant may have introduced evidence of all of the testimony that was given and all the actual evidence that was admitted in the trial of any one of the sex cases, there yet would be a failure to present to the jury in such a case all that actually transpired at the trial because of the fact that the manner, appearance, accent and all the many effective characteristics of the witnesses were absent. But we are bound to recognize the practical necessities of a trial of this character. In Robbins v. Treadway, 2 J. J. Marsh. (Ky.) 540, a circuit court judge brought suit for libel. The words complained of charged him with want of capacity; an open abandonment of the common principles of truth and a sale of the appointment of a clerk. The court held that asking witnesses the opinions of persons who were not witnesses, in order to prove incapacity, was error. Also, the court held, on the same subject, that the record of a decision by the plaintiff was not legal evidence. On the subject of abandonment of the common principles of truth and a sale of the appointment of a clerk, the court held that any evidence which would prove, or legally conduce to prove, either of those charges would be admissible. It may be anomalous that it should ever become necessary, even in a libel suit such as this, to present to a jury of laymen the question of the fitness or unfitness of a judge; but we know of no other method whereby that subject may properly be litigated between the parties. That, then, being the case, we are bound in such a trial as this to apply the ordinary rules of evidence, and at the same time recognize the difficulties which necessarily beset both the plaintiff and the defendant when presenting evidence undertaking to prove the falsity or truth of the alleged libel. If the position of counsel for the plaintiff were correct then a judge might be guilty of flagrant misconduct, violate every law, and yet, if a newspaper published the actual facts and was then sued for libel by that judge, practically, there would be no defense and in such a case thé plaintiff would be entitled to a directed verdict in his favor at the close of his own case. Such, of course, is not the law. (f) As to the contention of counsel for the defendant that the court erred in refusing to permit the introduction of evidence concerning the reputation of the plaintiff in the trial of sex cases prior to June 2, 1913, the date of the publication of the alleged libelous words: The offer was made to show, by evidence of reputation, as it existed prior to June 2, 1913, that, as a result of the judicial conduct of the plaintiff in the trial of sex cases prior to that time, his reputation as a judge had been impaired. We are of the opinion that the defendant was entitled, in mitigation of damages, to put in evidence tending to show that the reputation of the plaintiff in the trial of sex cases prior to the time in question had been diminished. Such evidence would not be competent on the issue of the truth of the alleged libelous words, but it was competent to show that the publication in question was not the sole cause of the impairment of the reputation of the plaintiff as a judicial officer in the trial of sex cases. If his conduct in the trial of sex cases, prior to the time in question, had injuriously affected his reputation, then it cannot be said that the publication of the alleged libelous words was in any way the cause of that injury. The publication of the" words charged cannot be said to have injured his • reputation as it existed prior to the publication; so that, any evidence of his reputation in sex cases, as it existed prior to June 2, 1913, might tend to mitigate the damages claimed, and should have been admitted. Wigmore on Evidence, vol. 1, see. 73; Earley v. Winn, 129 Wis. 291; Clark v. Brown, 116 Mass. 504. The latter case was an action for slander. The words complained of charged the plaintiff with stealing. It was held that the defendant should have been permitted to introduce evidence that the plaintiff’s general reputation was bad as to thieving. The court said on page 509: “As he is expected to be always ready to defend his general character, so also he should be ready to defend it in reference to that matter wherein he alleges it to have been wrongfully assailed. ’ ’ The evidence was clearly admissible. It is charged in the declaration that “it has gone out, and is supposed, that all criminal defendants who are brought to trial before the plaintiff as judge of the Criminal Court of Cook County, and charged with assaults upon women and children, would stand no chance of conviction” and that the plaintiff “protects the criminal defendants and permits them to go free whenever an assault is committed by them on a woman or a girl,” and that, by reason thereof, he “has fallen into great discredit and disgrace among the citizens of this county * * * and has been brought into notorious and public disgrace in his official acts as such judge,” etc. (g) The plaintiff introduced exhibit 5a, being the headlines of the article appearing in the left-hand column of the first page of the issue of May 31, 1913, and the defendant offered in evidence the rest of the article, and also offered, in that connection, the box article appearing in the second and third columns on page 4. Inasmuch as the rest of the article related to the subject-matter of that which was introduced in evidence, being the headlines, it ought to have been admitted. And, as to' the box article, as the words “Hoyne lists prosecutions thwarted by Judge Cooper,” which is part of the headlines, are only explained and evidently intended to be explained by a perusal not only of the article in'the regular text, but of the box article in the next column, it was admissible. The whole of the article was relevant and the box article was made relevant by the meaning of the headlines which the plaintiff put in. That the plaintiff was endeavoring to show malice, when he offered the headlines, does not change the general rule of evidence; that if a part is introduced, the whole becomes competent, providing it deals with the same subject-matter. (h) As to the Cooper-Quirk conversation; we are of the opinion that it was competent. The conversation took place between Judge Cooper and the Reporter Quirk at the Newbury Hotel where Judge ' Cooper lived. It was clearly admissible, as plaintiff’s version of it tended to support his theory that they were trying to intimidate him and influence him against impaneling a special grand jury, suggesting that, if he did so, they would publish the sex case articles. "We are further of the opinion that the evidence amply justifies the conclusion that Quirk, when he went to interview Judge Cooper, went with authority from the defendant. (i) The defendant complains of the admission in evidence, over .its objection, of two articles and a cartoon appearing in defendants’ papers published on June 4, 6 and 10, 1913. They were introduced by the plaintiff for the purpose of showing actual malice in the publication of June 2, 1913, which latter is the basis of this suit. An examination of the articles and the cartoon shows that they are, in part at least, a reiteration of the charges made in the articles of June 2, 1913. For the purpose of showing actual malice, aggravating the damages recoverable, they were admissible. Ball v. Evening American Pub. Co., 237 Ill. 592. As to the objections made to rulings on instructions: It is our opinion that the plaintiff was bound to prove the publication of the words and then, having done that, inasmuch as we are of the opinion that the words are libelous per se, the burden was upon the defendant to introduce evidence to show that they were true, and, that being so, it follows that the defendant was not entitled at the close of the plaintiff ’s evidence to a directed verdict on the ground that the plaintiff had not proven that the words of the libel were false. Inasmuch as the words charged are, in part, statements of fact, and those words are libelous per se, there can be no defense of fair comment and criticism. Since we have held that the defense of fair comment and criticism was not available, it follows that the defendant cannot complain of the giving of instruction 37, as it was more favorable to the defendant than the law warranted. This also applies to the latter part of instruction 27, and, of course, to all other instructions given on the subject of fair comment and criticism. With this exception, we see no substantial objections to instructions numbered 17 and 26, except that each states practically the same principle and one or the other may be considered superfluous. And the same is true of instructions numbered 10 and 16. The words charged being libelous per se, there is no ground for objection to instruction numbered 48. Complaint is made as to instruction numbered 35 because it singles out certain words of the first count and tends to unduly emphasize the issue thereon, and, further, that if instruction numbered 35 were given there was error in refusing defendant’s instruction numbered 4. Instruction numbered 35 which purports to set forth statements of fact which the defendant was bound to prove true in our judgment is not subject to the objection made. As to instructions numbered 4, 14 and 19, tendered by the defendant and refused by the court, they were obviously improper, for reasons already stated. As to instruction numbered 13, tendered by the defendant and refused, that instruction is obviously obnoxious, as where the words are libelous per se, exemplary and punitive damages may be allowed even though based only upon implied malice. For the reasons given the judgment of the circuit court is reversed and the cause remanded for a new trial. Reversed and remanded. Mr, Presiding Justice Thomson and Mr. Justice O’Connor concur.