Flitcraft v. Jenks

IN ERROR. 1. In an action on tlie case for a libel the declaration averred that the plaintiff was an applicant to the Court of Quarter Sessions for a tavern license, and that the defendant maliciously, &c, intending to injure him, &e. presented to the judges of the said Court a remonstrance, containing the false, scandalous, malicious words following, viz. speaking of the tavern for which the plaintiff was an applicant, “It, (the said tavern meaning,) is not designed for the accommodation of travellers, but merely calculated, (thereby meaning that the said plaintiff intended it,) as a place of resort for the idle and dissipated.” Held, that the plaintiff could not produce evidence on the trial of his good conduct and character. 2. Where words which might otherwise be libellous are contained in a remonstrance which a citizen has a right to present to a public authority, malice must be proved by the plaintiff; and unless it be proved the action is not maintainable, although the allegations are shown to be false.

This was a writ of error to the District Court for the City and County, to remove the record of an action on the case for a libel, brought by Jesse Flitcraft against Alfred H. Jenks, under the following circumstances:— The plaintiff was a tavern-keeper, and presented a petition to the Court of Quarter Sessions for the County of Philadelphia, for a license. The defendant presented a remonstrance to the Court against granting the license. In this paper it was alleged that the house for which the plaintiff prayed a license “ was not designed for the accommodation of travellers, but merely calculated as a place of resort for the idle and dissipated.” The Court refused to grant the license. The declaration, in setting out the alleged libel, after the words *“ merely calculated,” introduced the following innuendo, (“ thereby meaing that the said Jesse intended, it) as a place of resort for the idle and dissipated.” On the trial before Pettit, President, on the 30th of January, 1838, the signature of the defendant to the petition to the Quarter Sessions was admitted. The plaintiff’s counsel then called a witness, and offered to ask him “ whether the plaintiff was a good neighbour, a good citizen, a sober, honest, and temperate man, and whether he was a person likely to, or who would keep a house calculated as a place of resort for the idle and dissipated.” The counsel for the defendant objected, and the judge overruled this testimony, saying, “ There is nothing in the present case to justify a departure from the operation of the general rule of law, which gives the plaintiff the benefit of a good character till the contrary be proved. The plaintiff’s general character is not now impeached, and as it is unnecessary, he is not allowed to adduce evidence in support of it. He is already entitled to the advantage of every inference to be legitimately drawn from the possession of a good character. Notwithstanding its expanded form the question is but an inquiry into general reputation.” The plaintiff’s counsel excepted to this decision. No evidence was offered on the part of the defendant. The learned judge charged the jury in substance as follows.— “Where a publication is defamatory, the law infers malice, unless something can be drawn from the circumstances attending the publication to rebut that inference. But in an action for such a publication, as, notwithstanding its tendency to disparage the plaintiff, is prima facie excusable, on account of the occasion of writing it, there malice must in fact be proved. The right of remonstrance to the Court of Quarter Sessions in a case like this, cannot be questioned. The defendant is therefore protected to a certain extent, How far he is protected is another matter. The general rule is, that if it can be shown that the object of the party was malignant, and that the occasion was laid hold of as a mere colour and excuse for gratifying private malice with impunity, the action is maintainable. No matter how erroneous, their, the allegations of the defendant were, if his conduct was not malicious, no action will lie. If his motives were fair and honest, it is no matter whether what he said was strictly true or not. If upon these principles, a cause of action exists, then, before the jury can give special damages for the loss of the license, as laid in the plaintiff’s declaration, there must be some proof that but for the interference of the defendant, the plaintiff would have obtained it. *No evidence having been offered on this point, there could be a verdict for The jury found for the defendant, and the plaintiff removed the record writ of and the errors “ 1. That the judge refused to permit a witness called by the plaintiff to be asked ‘ whether the plaintiff was a good neighbour, a quiet citizen, a sober, honest, temperate man; and whether he was a person likely to, or who would keep a house calculated as a place of resort for the idle and dissipated; (offered to show want of probable cause, and thus raise an inference of malice). 2. That the judge charged the jury that the libel alleged in the declaration was prima facie excusable, on account of the occasion of writing it, and that malice must in fact be proved. 3. That the judge charged the jury that to enable the plaintiff to maintain his action, he must show that the defendant’s object was malicious, and that the occasion was laid hold of as a mere colour and excuse for gratifying private malice with impunity. 4. That the judge charged the jury that no matter how erroneous the allegations of the defendant were, if his conduct were not malicious, no action would lie ; that if his motive were fair and honest it was no matter whether what he' said were strictly true or not. 5. That the judge charged the jury as stated in the second, third, and fourth errors assigned, after rejecting, as stated in the first error assigned, the plaintiff’s offer of evidence from which the jury would have been enabled to infer malice. 6. That the judge charged the jury that the plaintiff could not recover special damages. 7. General errors.”