Tawney v. Simonson, Whitcomb & Hurley Co.

JAGGARD, J.

(after stating the facts not within [ ] as above).

1. The initial question is whether the trial court erred in holding that as a matter of law the words used were not libelous per se.

A number of relevant principles are beyond controversy. Published words may be defamatory per se; that is, defamatory without proof of special damage. As to what constitutes such words, Mr. Justice Mitchell said, in Byram v. Aiken, 65 Minn. 87 , 67 N. W. 807 : “Written publications calculated to expose one to public contempt or ridicule, and thus induce an ill opinion of him, and impair him in the good opinion and respect of others, are libelous, although they involve no imputation of crime, and are actionable without any allegation of special damages.” “It is enough,” said Weaver, J., in Morse v. Times Republican, 124 Iowa, 707, 715 , 100 N. W. 867, 870 , “if the printed article be such that its publication naturally tends to brand him with dishonesty or other conduct or characteristic deserving the contempt and reprobation of right-minded people.”

More specifically, words charging misconduct in office, want of official integrity or fidelity to public trust, and words which tend to deprive an official of his office, are libelous per se. State v. Norton, supra, page 99, 123 N. W. 59 ; Larrabee v. Minnesota Tribune Co., 36 Minn. 141 , 30 N. W. 462 ; Sharpe v. Larson, 67 Minn. 428 , 70 N. W. 1, 554 ; Martin v. Paine, 69 Minn. 482 , at page 485, 72 N. W. 450 . Aiid see sections 4269, 4916, 4917, R. L. 1905. In the application of this rule it makes no difference what the nature of the employment is, provided it is lawful, or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfilment of what the party, in virtue of his employment or office, has undertaken. 2 Current Law, 718, and authorities referred to.

In determining whether the specified matter is libelous per se, two rules of construction are conspicuously applicable: (1) That construction must be adopted which will give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in *349 which the public would naturally understand what was uttered. (2) The published matter alleged to be libelous must be construed as a whole.

Defendant divides its argument that the matter was not libelous per se into two parts: Its first argument is based on this particular sentence: “Tawney, proved a falsifier of public documents by his' misquotation upon the floor of congress of a letter from the secretary of the treasury and his misstatement of facts with respect to an investigation and exposure in the bureau of .engraving and printing.” This, it insists, asserts two facts: (a) That Tawney misquoted a certain letter; (b) That Tawney misstated certain facts. From the existence of these two facts, the writer of the article draws the conclusion that Tawney is “proved a falsifier of public documents.” He concludes that “the opinion or conclusion that it [defendant] drew from these facts, cuts no figure. * * * If the article complained •of simply read, Tawney is a falsifier of public documents,’ an altogether different question would be here presented.” The published matter was not libelous, but simply “diseommendatory” (see McDermott v. U. C. Co., 76 Minn. 84 [ 78 N. W. 967 , 79 N. W. 673 ]), and as such was not actionable. The pleasant path of euphemism was followed to its end: “All that can be said of it generally is that it imports intellectual unfairness, one-sidedness, partisanship, bigotry and the like.” And this was re-inforced by the argument from inconvenience: “If to charge one with misquotation or misstatement of a fact were actionable per se, it would be unsafe to publish a newspaper at all, or to discuss any public question in a public way.”

This reasoning is obviously unsound. Defendant eliminates the first charge that plaintiff was a falsifier of public records on the floor of congress, and attributes an innocent meaning to “misquotation” and “misstatement.” The difficulty is that these words, “a falsifier of public documents,” occur and are significant. They must be dealt with on the same principle which requires even headlines to be considered. Landon v. Watkins, 61 Minn. 137 , 63 N. W. 615 . The statement that plaintiff “falsified” was an integral part of the whole. If this were “opinionative,” that does not tend to exonerate the defendant. Gendron v. St. Pierre, 73 N. H. 419, 62 Atl. 966 ; Prewitt v. *350 Wilson, 128 Iowa, 198 , 103 N. W. 365 , collecting cases at pages 367, 368, of 103 N. W. The words must be interpreted in their ordinary meaning. “A falsifier is one who falsifies or gives to a thing a deceptive appearance; a liar.” Webster’s Unab. Diet.; The Century Diet. “One who falsifies or deceives; a liar.” Standard Diet.

The imputation of falsehood, which was here made, when published in writing, is libelous per se. Cooper v. Stone, 24 Wend. (N. Y.) 434, at page 441; Riley v. Lee, 88 Ky. 603 , at page 611, 11 S. W. 713 , 21 Am. St. 358; 25 Cyc. 255. Thus to charge a judge as a’citizen with openly abandoning the principles of truth is libelous. Robertson, L, in Robbins v. Treadway, 2 J. J. Marsh. (Ky.) 540, 19 Am. Dec. 152 . A fortiori, “when the lie is passed,” a libel is committed. Colvard v. Black, 110 Ga. 642 , 36 S. E. 80 ; Brooks v. Bemiss, 8 Johns. (N. Y.) 455, 456; Cooper v. Stone, supra. The charge of having falsified imputes a wilful wrong. Thus, to charge that a school teacher gave false information in respect to a matter about which it was her duty to give correctly all information, charges the giving of false information in consequence of a perverse will. Lindley v. Horton, 27 Conn. 58 . The conclusion follows that the unmodified charge,, published in-a writing, that plaintiff, a member of congress, had falsi- • fied public documents on the floor of congress, was libelous per se. It imputed to plaintiff want of fidelity to public trust, grossly inconsistent with the due fulfilment of official duty, tended -to brand him. with intellectual dishonesty, to subject him to the contempt and reprobation of right-minded men. - ,

Defendant, however, invokes authority to the effect that words, susceptible of carrying a libelous or slanderous meaning may be deprived of that quality by association with other parts -of the context. Thus to charge a man with false assertion may be shown by. the context to mean to charge “that he reasons from false premises,, or draws false conclusions from correct premises,” ■ and therefore not to be libelous. Walker v. Hawley, 56 Conn. 559 , 16 Atl. 675 . And see Labor Review v. Galliher, 153 Ala. 364 , 45 South. 188 ; Urban v. Helmick, 15 Wash. 155 , 45 Pac. 747 (wherein a “hog” appeared from the context to mean one who bought goods from a store .in' a town other than in his own town, and was held to be innocent.') It. is *351 evident, however, that the matter is determined, by the particular language used. Such words may or may not be deprived of their defamatory ipeaning, or they may or may not be intensified in that quality by such association. Thus for .example in Cox v. Lee, L. R. 4 Ex. 284, it was held that “to charge a man with ingratitude is libelous; and such a charge may also be libelous, notwithstanding that the facts upon which it is founded are stated, and they do not support the charge.” And Pigott, J., said, at page 291, “that the charge was not made in such a manner as to disprove it, but rather to add to it force and point; and much must always depend upon the attendant circumstances.”

In the case at bar the specification that the defendant falsified by misquoting or misstating might be regarded as adding force and point to the charge. Such clauses are certainly not inconsistent with it, and they do not tend to negative the express allegation of wilful and deliberate wrong on the part of the defendant set forth in the complaint. They are not “an antidote to a bane.” This is not a case where something to a man’s credit is to be considered with something to his discredit. To say that a man is a thief is not freed from an objection by adding that he has taken one man’s horse or kept another man’s cow. But to say that a man is a thief because he has converted one man’s horse and appropriated another man’s cow is to aggravate the charge by specification. So to call a man a liar is not diminished in defamatory character by citing instances in which he has made misstatements. We conclude that the modifying clauses did not destroy the libelous character of the main charge and that this sentence was libelous per se.

With this view falls the argument from inconvenience, for under the view here adopted whether the charge of misquoting and misstating, alone, may or may not be made without liability in libel, is neither considered nor determined.

Defendant’s second argument is that the remainder of the article excluding the particular sentence is not libelous. . The use of plaintiff’s name in connection with Senators Burton,- Mitchell, and Hermann (who had all been charged or convicted of crime) .'was, according to defendant, rendered innocuous by Crashley v. Press Pub. Co., *352 179 N. Y. 27 , 71 N. E. 258 . It was there held that to attach plaintiff’s name to the coterie which surrounded him was not to impute to him knowledge of their defects or moral turpitude. That case concerns charges made about a- revolutionary leader in Brazil which attributed “sordid interests to his crowd,” but not to him. It is evident that neither principle nor the letter of this case serves to eliminate the sting of the particular ’association of names.

Whether, however, these other parts of the article, outside of the particular sentence previously considered, had a natural tendency to defame, it.is really unnecessary to here determine. The question is not whether that article can be divided into .two parts, and each of those parts so analyzed separately from each other that each would appear to be free from defamatory meaning. The article must be construed as a whole. The remainder of the article tended, not to destroy, but to increase, the natural defamatory character of the particular sentence previously considered. Due weight must, moreover, be given to .plaintiff’s formal allegations of the sense in which the words were used and understood. We conclude it was error to hold as a matter of law that the words were not libelous per se.

2. The truth of the charge did not appear as a matter of law on the face of the pleadings. With their truth in fact we are not concerned on this motion for judgment. It is elementary that, to make out the defense of truth in an action for libel, the plea in justification must be substantially as broad as the charge. The plea of truth must, moreover, not only extend to the entire language complained of,'but must allege its truth in the sense imputed to it by plaintiff (Morse v. Times Republican Printing Co., 124 Iowa, 707 , 100 N. W. 867 ; provided, of course, that such sense results from a reasonable construction. This agrees with the English rule that if, as here, the defendant pleads simply that the words were true without any reference to the innuendo, he inust be prepared at trial to prove that those word's were true in whatever sense it may be determined should be put upon them. Odgers, 181; Ford v. Bray [1894] 11 Times L. R. 32. Therefore a motion for judgment on the pleadings should not be granted, if the answer asserts a justification substantially less broad than the complaint charges, 'or in a sense different from that reasonably laid in the innuendo.

*353 ■ The first charge in the particular sentence previously- quoted is not shown by the pleadings to have -been true., It distinctly charges plaintiff with having “misquoted.” The truth of charge was not made out. As the trial court said:- “This does not on its face purport to be a quotation from the letter referred to, nor does it say without qualification that the secretary of the treasury admitted specifically that the practice of that department had been in violation of law year after year for a number of -years. It, on its face, purports to be the plaintiff’s conclusion drawn from the letter that it was in effect -an admission that such practice had been in violation of law.”

If, however, what was meant to be charged was, not that plaintiff had misquoted, but that he had “misstated or misrepresented,” or had misconstrued the letter, then the defendant failed, on the pleadings, to make o-ut the defense of truth to that charge; for, in addition to setting forth the words themselves, the complaint further alleges that defendant charged plaintiff with deliberately and wilfully falsifying public documents on the floor of congress. The letter set forth in the answer may or may not have warranted the inference plaintiff had drawn. This there is no occasion to now consider or determine; for, upon the assumption that the letter would not justify plaintiff’s conclusion, it still does -not appear that plaintiff had misconstrued the letter with any but an innocent intention. The truth of what defendant published, in the sense imputed to it by the complaint, was therefore necessarily not made out by the answer. So in Wernher Co. v. Markham, [1901] 18 Times L. R. 143, [1902] 163, the defendant called plaintiffs “thieves and swindlers,” and pleaded that the words were true in substance and in fact. It was there attempted to say that in using the words “thieves and swindlers” he did not mean to impute criminal dishonesty. This was held insufficient.

This conclusion is the more readily reached, inasmuch as the -plaintiff’s argument that he had truthfully stated the facts of the 'letter rests to an indefinite extent on matters which are not i-n the record'. How far these extrinsic facts are the necessary and proper objects-of proof, and how far this court will take judicial notice of such matters, or of other matters involved therewith in defendant’s argument on that -point, are questions naturally arising upon trial, and are best *354 decided there. It may not be impossible to correctly dispose of them here, but the determination would be likely to be academical, and would be obviously unsatisfactory.

In this view it would be superfluous to inquire into the truth of the charge made with respect to the investigation and exposure in the bureau of engraving and printing, or into the extent to which similar reasoning concludes that controversy; for, upon the assumption that this part of the charge was true in fact, the justification as a whole could not be as broad as the charge.

3. Nor has the defendant made out the defense of qualified privilege or of fair comment as a matter of law. On this subject, there is particular confusion and disagreement. 24 Law Q. ¡Rev. 235. The uncertainty begins at the threshold. It is frequently, perhaps generally, said that a libelous publication is actionable, unless justified or privileged; that privilege may be absolute or qualified; and that newspaper comment on public men is a qualified privilege. It is, however, also insisted that this does not mean that such words are published on a privileged occasion in any strict sense of the term (see authorities collected in 25 Cyc. 401, note 77), but that comments on matters of public interest should he treated as a separate defense, and not included as a species of the genus general privilege. Odgers, L. & S.

It is not necessary, however, that this controversy should be here determined, for the complaint charges defendant with express malice. This must be treated as admitted for the purposes of the present motion. In any view, the defense under these circumstances was not made out; for it is clear that the right to comment and to criticize, viewed as a separate defense, or viewed as an instance of qualified privilege, does not exist where express malice is shown.

The English rule is: “In an action of libel, where the defense is that the writing complained of is fair comment upon a matter of public interest, evidence that the defendant was actuated by malice towards the plaintiff is admissible, upon the ground that comment which is actuated by malice cannot be deemed fair on the part of the person who makes it, and, therefore, proof of malice may take a criticism that is prima facie fair outside the limits of fair comment.” *355 Thomas v. Bradbury, L. R. 2 K. B. 627 (1906). The American rule is to the same effect. See 56 O. S. or 48 N. S. U. of P. A. L. R. and L. R. 470. “A communication,” said Gillfillan, C. L, in Lowry v. Vedder, 40 Minn. 475 , 42 N. W. 542 , “is not entitled to the character of privileged when it is made for malice.” And see Quinn v. Scott, 22 Minn. 456, 457 ; Sherwood v. Powell, 61 Minn. 479 , 63 N. W. 1103 , 29 L. R. A. 153, 52 Am. St. 614; Martin v. Paine, 69 Minn. 482 , 72 N. W. 450 ; Hebner v. Great Northern Ry. Co., 78 Minn. 289 , 80 N. W. 1128 , 79 Am. St. 387; Mertens v. Bee Pub. Co., 5 Neb. (Unof.) 592 , 99 N. W. 847 ; Morse v. Times Republican Printing Co., 124 Iowa, 707 , 100 N. W. 867 , cf. Vial v. Larson, 132 Iowa, 208 , 109 N. W. 1007 . Generally, see 25 Oyc. 411. We refrain ■from further accumulation of authorities on so elementary a proposition, beyond pointing out that, even by the more liberal rules as to the justification of newspaper comments in force, express malice destroys the right to criticise. Briggs v. Garret, 111 Pa. St. 404, 2 Atl. 513 , 56 Am. 274. In this view it is unnecessary to consider the further contention of the truth or untruth of the charges in fact. See 24 Law Q. Rev. 235.

Reversed.