Negley v. Farrow

Libellous publication — Liberty of the Press — Right to discuss the Official conduct of a public man — Newspaper publications — Malice as an element in an action for Libel — Publications libellous per se — Question before the Jury on the plea of Not guilty — Estimating damages — Statute of 32 Geo. Ill, chap. 60 — Admissibility of Evidence. Any publication which tends to injure one’s reputation, and expose him to hatred or contempt, if made without lawful excuse, is libellous. 'The liberty of the press guaranteed by the Constitution, is a right belonging to every one, whether proprietor of a newspaper or not, to publish whatever he pleases without the license, interference or control of the government, being responsible alone for the abuse of the privilege. In every free country, a citizen has the right, within lawful and proper limits, to discuss, and censure boldly, and fearlessly the official conduct of a public man; but there is a broad distinction between fair and legitimate discussion of the conduct of'a public man, and the imputation of corrupt motives by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he must do so at his peril, and must either prove the truth of what he says, or answer in damages to the party injured. The fact that one is the proprietor of a newspaper, entitles him to no privilege in this respect not possessed by the community in general. The law recognizes no duty imposed on him, arising from his relations to the public, to defame and libel the character of any one; and if he does, it is no answer to say he did it in good laith and without malice, honestly believing it to be true. Malice, but not malice in the ordinary sense of hatred, or ill will against the person of whom the defamatory words are spoken, is an essential element in an action for libel; but if the publication be in itself libellous, the law in such cases implies malice. In an action of libel against the editors of a newspaper, based on the publication by them of an article critieising the conduct of the plaintiff as a public officer, it was Held : 1st. That if the article were per se libellous, and its publication established, the only question before-the jury on the general issue plea of not guilty, was the amount of damages which under all the circumstances the plaintiff was entitled to recover. 2nd. That in estimating the damages the jury were to consider whether the article was published maliciously and wantonly, for the jrarpose of injuring the character and reputation of the plaintiff; or as editors of a newspaper honestly commenting upon the official acts and conduct of the plaintiff, and in the belief of its truth. 3rd. That the Statute of 32 Geo. Ill, ch. 60, “Fox’s Libel Act,” was not in force in this State, and here the Court had always decided whether the publication was in law a libel, leaving the jury to find the fact of publication, and such other facts as might be pertinent-to the issue. The plaintiff, for the purpose of proving malice in fact, having offered in evidence other libellous articles of similar import, published by the defendants subsequent to the one set out in the declaration, it was Held : 1st. That the defendants had the right to prove the truth of these subsequent libels, and to prove all the facts and circumstances surrounding their publication. '2nd. That on the other hand it was competent for the plaintiff to l>rove that they were not published in good faith, but were published maliciously and wantonly, for the purpose of defaming and injuring his character. 3rd. That the defendants, in mitigation of damages, had a right to prove that the libel complained of was published by them under an honest conviction of its truth, arising .from probable grounds of suspicion '/known to them at the time of using the defamatory language; but that evidence of such probable grounds was inadmissible unless accompanied by an offer to prove that they were known to the defendants at the time of the publication of the libel.

Appeal from the Circuit Court for Washington County. The appellee sued the appellants as editors, proprietors and publishers of a newspaper called “The Herald and Torchlight,” published in Hagerstown, in an action of libel. The declaration is substantially set forth in the opinion of the Court. The defendants filed a general demurrer to the declaration rvhich was overruled. They then filed the plea of “did not commit the wrong alleged,” and the two following special pleas : 2nd. That the defendants at the time of the publication of said alleged libellous articles in the several counts of the plaintiff’s declaration, were the publishers, in Washington County, of a certain public newspaper called “The Herald and Torchlight,” and at said time the plaintiff was the State Senator of Washington County, in the Legislature, of Maryland, and acting as such, and in such public capacity his votes and actions were proper subjects for investigation and information, and that said alleged libellous articles related to the official conduct of the plaintiff acting in such public capacity, and was proper for public information, and that said publications were made in good faith, and in the belief in their truth, and not made maliciously nor negligently. 3rd. That the subject concerning which the article complained of was written, was a matter of great interest and importance to the people of Washington County and the State of Maryland, who, being numerous, could only be reached through the press; that the votes and acts of the plaintiff, as representing the people of Washington County, were a matter in which the said people were interested, and a proper subject of discussion in the newspapers ; and that the defendants believing that such votes and acts did not correctly represent the people of Washington by whom the plaintiff was elected to the Senate of Maryland, and were an injury to them, discussed the same in good faith and without malice, and made only such statements and comments as they believed, on due inquiry and reasonable grounds, to be true and just and warranted by the plaintiff’s acts. The plaintiff joined issue on the first plea, and demurred to the second and third pleas, which demurrer was sustained. First Exception. — The defendants, after offering evidence tending to prove that the plaintiff and Jas. Hawkins had a contract to furnish stone to lengthen a lock on the canal, offered to prove the following facts, to wit: That the stone furnished by plaintiff and Hawkins, cost them from twelve to seventeen cents per perch, and that it cost them fifteen cents to deliver them, and that this was all the cost and expense they were put to; and that they received from the Canal Company eighty cents per perch ; and further that they received said contract without any competition or public notice, to which evidence the plaintiff objected, and the Court (Alvey, C. J., Motter, and Pearre, J.) sustained the said objection, and ruled the evidence to be inadmissible. The defendants excepted. Second Exception. - The defendants then offered to prove that it was known at the time of the election of Treasurer, in January, 1882, to the public, and to the plaintiff, that the Governor and Comptroller, two members of the Board of Public Works, differed in reference to the management of the canal; that the Governor was opposed to the then management and that the Comptroller was in favor of itand, further, that Mr. Compton was known to agree with Mr. Keating, and both in favor of the retention of the officers of the canal, who had given the alleged contract to the plaintiff, to which evidence the plaintiff objected, and the Court sustained the objection and ruled the evidence to be inadmissible. The defendants excepted. Third Exception. — The plaintiff, in rebuttal, gave evidence tending to show that the plaintiff had no contract to furnish stone on the canal, and explained the circumstances of his votes on Eeb. 1st, being the votes referred to in the alleged libellous article on the printing question and then offered in evidence the Journal and Proceedings of the Senate of Maryland, which took place on the tenth day of February, 1882, said ■ Journal and Proceedings having been previously proved by the Secretary of the Senate to be correct, in reference to the publication of the laws, and offered to read to the jury the action and votes of the plaintiff in reference to the publication of the laws, which took place Feb. 10th, 1882, tending to show that the plaintiff was in favor of the repeal of the subsidy law; to all of which evidence the defendants objected as inadmissible, but the Court overruled the objection and allowed the evidence to be read to the jury. The defendants excepted. Fourth Exception.- — The counsel for the plaintifif'further in rebuttal, asked of the plaintiff the following question: State to the jury your action and vote in reference to the election of Treasurer of Maryland last winter, and whether you voted for Mr. Pratt or Mr. Compton ? To which the plaintiff answered, I voted for Mr. Pratt; I got my ballot out of the waste paper basket, and gave the circumstances of his vote and the finding of the ballot. To the asking of said question, and to the answer to the same, the defendants objected, but the Court overruled the objection, and allowed the question to be asked and the answer to be given, arrd admitted the same as testimony in the cause. The defendants, excepted. Fifth Exception.- — The counsel for the plaintiff further in rebuttal, asked the plaintiff the following question: State whether you had any contract or understanding with Mr. Gorman, directly or indirectly, in reference to your votes at Annapolis on the election of Treasurer, and on tlie publication of the laws ? To which the plaintiff answered, I had not. To the asking of said question, and to the answer to the same, the defendants objected, but the Court overruled the objection, and allowed the question to be asked, and the answer to be given and admitted the same as testimony in the cause. The defendants excepted. Sixth Exception. — The plaintiff also gave in evidence the testimony of Senator Moore, tending to sustain the testimony of the plaintiff, Earrow. And further, in rebuttal, called A. P. Gorman as a witness, who testified he knew plaintiff since 1812; never had any business transaction with him, and never knew him to vote against his party in political questions, and then asked him the following questions, to wit: Did you, or not, have any arrangement with Mr. Earrow, as to how he should vote for Treasurer of the State of Maryland, or upon the publication of the laws ? To which the witness answered, I had not. To the asking of said question, and to the answer to the same, the defendants objected, but the Court overruled the objection, and allowed the question to be asked, and the answer to be given, and admitted the same as testimony in the cause. The defendants excepted. Seventh Exception. — The plaintiff, further, in rebuttal, called L. G. Stanhope, Superintendent of the Chesapeake and Ohio Canal, and asked him the following question: State whether the rates given for this contract were higher than the rates given for other contracts, to furnish stone for lengthening looks on the canal, and whether they were higher than you were instructed to give by the Canal Board ? To which witness answered, the rates were not higher than given to other persons, who had •contracts to furnish stone; all received eighty cents per perch, and which was not higher than the price fixed by the Canal Board, but was given to Hawkins, as to others, at the price fixed by the board. To the asking of said question and to the answer to the same, the defendants objected, hut the Court overruled the objection and allowed the question to he asked, and the answer to he given, and admitted the same as testimony in the cause. The defendants excepted. Eighth Exception. — The plaintiff then offered the three prayers as follows, to wit: 1. If the jury believe from tbe evidence that the defendants, as partners, as charged in the declaration of the plaintiff, were the editors, proprietors and publishers of the newspaper published in Hagerstown, Washington County, and State of Maryland, called “The Herald and 'Torchlight,” that the plaintiff was, on the 8th day of February, 1882, the member from said county of the Senate in the General Assembly of said State and was then attending the session of the said General Assembly; and that the said defendants published in the said issue of the said paper of, and concerning, the plaintiff the words set forth in said declaration, then the plaintiff, under the law, is entitled to recover. 2. If the jury believe the facts as set forth in the plaintiff’s first prayer, the law imputes malice to the defendants, by the publication of the words, and the jury in awarding damages may take into consideration the publicity, of the libel and the injury to the feelings and reputation of the plaintiff, and the mortification such a publication and such charges would he likely to produce; and if the jury further find that the said publication proceeded from express malice, or ill will to the plaintiff, then they may award punitive or exemplary damages. 3. The jury are instructed that the article published in the defendant’s paper of 8 Feb’y, 1882, (if they find such publication to have been made,) and read in evidence to the jury, is libellous and actionable in itself, and even if the jury believe that the defendants, or either of them, before writing said article, had received information from Mr. Briscoe or Mr. King, or any other person, that it was believed in Annapolis that the plaintiff had voted for Compton for Treasurer, and that he or they relied upon said information in writing said article, this evidence was snly admitted to go to the jury in mitigation of damages, and cannot defeat the plaintiff’s recovery in this action; and the jury are further instructed that the fact that said article was published in a newspaper, confers no privilege upon it which will relieve it from the malice the law imputes to it. And the defendants offered the seven following prayers: 1. If the jury are satisfied from the evidence that at the time of the publication of the article complained of, the plaintiff was a member of the Senate of Maryland, and had been elected thereto as a republican in politics to represent Washington County therein, and are further satisfied that the defendants were, at ■ that time, the proprietors and publishers of the “Herald and Torchlight,” a newspaper having a considerable circulation in said Washington County, and among the constituents of said plaintiff, then the defendants had a right to publish, and fairly and without malice to criticise, discuss and comment on the votes and acts of said plaintiff as such senator; and if the jury are satisfied from the evidence that said publication was a fair and honest discussion ofj or comments upon, a matter of public interest in connection with the votes and acts of the plaintiff as senator as aforesaid, it is in point of law privileged and is not the subject of an action, and their verdict will be for the defendants, unless the jury should further believe from the evidence that said publication was induced by malice on the part of the defendants toward the plaintiff. 2. If the jury shall believe from the evidence that the plaintiff said to the defendants, or either of them, or to any other person or persons, who communicated it to the defendants, or either of them, that he had, or had had a contract, or part of a contract, to furnish stone to lengthen a lock or .locks on the Chesapeake and Ohio Canal, or shall believe from the evidence that James E. Hawkins made or had an oral agreement or bargain with the Chesapeake and Ohio Canal Co., to furnish stone for lengthening a lock or locks on said canal, and having such contract, bargain or agreement, by a like oral bargain or agreement associated the plaintiff as partner with him in such contract, and they, as partners, performed the said contract, the plaintiff attending to a certain portion of the business, furnishing or agreeing to furnish the capital required therefor, and sharing the.profits of the transaction with said Hawkins, then the defendants were entitled to state fairly the fact, that plaintiff “was given in part, a contract by the Canal Board to furnish stone to lengthen a lock or locks on the canal,” and fairly and without malice, to comment on such facts, and to draw in good faith, any proper inference therefrom, as to the influence which the same had, or might have upon the plaintiff’s votes or acts as a public man and a senator, and no action will lie against them therefor, and the jury will not find a verdict against them on account thereof. 3. If the jury are satisfied from the evidence, that at the time of the publication of the article complained of, the plaintiff was a member of the Senate of Maryland, and had been elected thereto as a republican in politics, to represent Washington County therein, and are further satisfied that, prior to the publication complained of, and in anticipation of an election of Treasurer of the State of Maryland, to be made by the General Assembly, a caucus was held, which was attended b.y all the republican members of said Senate, including the plaintiff, and that at such caucus Enoch Pratt was nominated as the republican candidate for State Treasurer, at the election so to be held, and are further satisfied that at the election of Treasurer thereafter held, the ballots were cast and counted, and it then appeared therefrom, that said Enoch Pratt had reeeived in said senate, one vote less than the number of republican senators who were present and took part in said caucus’ and who were present and voted at said election, and that Barnes Compton, the democratic candidate for Treasurer at said election, (if they believe that Barnes Compton was the democratic candidate at said election,) received one vote more than the number of democratic senators present and voting at said election, and further believe that the defendants at the time of the publication complained of, were the proprietors and publishers of the “ Herald and Torchlight,” the same being a republican no wspaper, then the said defendants were entitled to publish all facts coming to their knowledge respecting said election of Treasurer, and to make fair and bona fide comments thereon, and to state any and all facts coming to their knowledge, tending to .indicate which of the republican senators did not vote for Enoch Pratt, and did vote for Barnes Compton, and to draw fairly and bonajide, and without malice, all inference fairlydeducihle therefrom. And if the jury are satisfied that the publication complained of, so far as it relates to- said election of Treasurer was made “under a belief of its truth, and without malice, honestly and bonajide,” then the same was not actionable, and their verdict will be for the defendants, unless they shall further find under the other instructions of the Court, a verdict for the plaintiff' on the ground of some other part or parts of said publication. 4. The jury in considering of their verdict, should regard oidy the publication complained of, as the same was made by the defendants, and not the construction placed thereon in the plaintiff’s declaration, and should not regard said publication as charging the plaintiff with bribery, unless they find that that is a necessary or fair construction of the language used; and if they find that the language of the publication, with reference to a contract spoken therein, is fairly susceptible of an innocent meaning-, the defendants are entitled to have that construction placed upon it, the plaintiff having offered no evidence tending to show that the defendants intended to convey, or that any one understood it to convey a different meaning. 5. That if the -jury find from the evidence that there was a law under which $1,200 was paid to certain newspapers in each county in the State, for printing certain laws passed by the Legislature, and further find that a bill was before the Senate of Maryland, to repeal said law, and that said bill had passed a first and second reading and was before the said Senate for its third reading and final passage on the 1st day of Feb. last, and that a motion was made to refer said bill to the finance committee of the said Senate, and further find that the plaintiff, as a member of said Senate, voted to refer said bill to said committee, and further find from the evidence that it was usual in order to defeat bills to refer them to a committee instead of voting against them upon their third reading, and further find that the report of said proceedings in the said Senate, as given in the alleged libellous article read in evidence, was substantially correct and not garbled or partial, and made bona fide and without malice, then the publishing of the said report is not' libellous, and the plaintiff is not entitled to recover for the publication of the same by the defendants. And the jury is further instructed, that if they find the facts as above set forth, and also find that the defendants are the publishers of a public newspaper, and commented upon and criticised the said conduct and said official act of the plaintiff in the said alleged libellous article, and that the said comments and criticism did not exceed the limits of a fair and bona fide discussion by a writer of a public newspaper of a matter of public interest, (if the jury find that said proceedings, and the plaintiff’s action in reference to the same, were matters of public interest,) and further find that said .comments and criticism were made bona fide and without malice,.and in the belief of the truth of the same, and upon probable cause, then the plaintiff is not entitled to recover on account of said comments and criticism. 6. If the jury shall believe from the evidence, that so much of the publication complained of as purported to be copied from the “Baltimore Sun,” is a fair report of the proceedings of the Senate of Maryland, with respect to the recommitment of the hills for the amendment and repeal of the laws relating to the publication of the laws, and to which it related; and shall further believe, that the comments upon said action in the publication complained of, were fair and bona fide, and made without malice on the part of the defendants, then that portion of the publication complained of, including said extract from the “ Baltimore Sun,” and the defendants’ comments thereon, was not actionable and the plaintiff is not entitled to a verdict for damages on account thereof. 7. That if under the pleadings and evidence in the cause, the jury find for the plaintiff, in estimating the amount of damages and in mitigation of the same, they ■shall take into consideration all the attending and mitigating circumstances, and if they find that the plaintiff was a public man, attending the session of the Legislature, and that the defendants were public journalists, and thought that as such they had a right to comment upon the official acts and conduct, and even the motives in reference thereto of the plaintiff, and that they did so comment without malice in fact, in the belief of the truth of said comments, and with a view solely of informing their readers of the official acts, conduct and motives of their public servant, these are proper matters and things to be taken into consideration in mitigation of damages. The Court granted the prayers of the plaintiff, and the seventh prayer of the defendants, and rejected the defendants' other prayers. The defendants excepted. The jury rendered a verdict for the plaintiff for $3,000, and judgment was entered for the same, and costs. The defendants, appealed.