Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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and there never has been any alteration of the law in England on
this subject in civil suits." The case of King v. Root, supra, was
originally tried at one of the circuits in New York before Hon.
Samuel R. Betts. The defendants, King and \'erplanck, were edi-
tors of the New York American, printed in the city of New York
in 1824. These editors published concerning one Root, lieutenant-
governor of that state, among other things, that in August of that
year he addressed the state senate, then in session, "while blind with
passion and rum, when he was unwashed, unshaven, haggard, with
tobacco-juice trickling from the corners of his mouth, and in a con-
dition outraging all order, decency and forbearance." Root brought
a civil action to recover damages for the alleged libel, and the de-
fendants admitted the publication and pleaded the truth as justifica-
tion. The trial judge instructed the jury, "if the defendants had
only published the truth, they had an unquestionable right to do
that, and they must be acquitted."

Blackstone, in his Commentaries, asserts that the truth could
always be given in civil cases in justification of libel, and seems to
consider the defendant's exemption in such instances as extended
to him in consideration of his merit in having warned the public
against the evil practices of a delinquent. Pie says that it is damnum
absque injuria, intimating that the acts of the defendant, wMio justi-
fies a libelous publication, does not constitute a wrong in its legal
sense, and then proceeds to observe that this is agreeable to the rea-
soning of the civil law. (3 Bl. Com. 125.) This is illogical; and
Starkie bases this exemption on the better reason, that in such in-
stances the plaintiff has excluded himself from his right of action


at law by his own misconduct, and not to any merit appertaining to
the defendant. When a plaintiff is really guilty of the offense im-
puted, he does not oft'er himself to the court as a blameless party,
seeking- a remedy for a malicious mischief ; his original misbehavior
taints the whole transaction with which it is connected and precludes
him from recovering that compensation to which all innocent per-
sons would be entitled. (Folkard's Starkie on Slander and Libel,
Am. ed., § 692.)

There are many good and sufficient reasons why a publisher of
a statement, true in fact, yet given to the public with a malicious
design to create mischief, should be amenable to the criminal laws,
and yet not be liable in a civil action. On general principles no right
to damages can be founded on a publication of the truth, from the
consideration that the reason for awarding damages in every such
case fails. The right to compensation in point of natural justice is
founded on deception and fraud which have been practiced by the
defendant to the detriment of the plaintiff. If the imputation is
true, there is no deception or fraud, and no right to compensation.
The criminal action in libel is supported to prevent and restrain the
commission of mischief and inconvenience to society.^ Take the case
of two men who agree to engage together in fisticuffs : the law
for the protection of the peace of society, and to prevent greater
collisions, may arrest and punish both combatants, and yet neither
may be able to recover from the other personal damages. Where a
person makes the publication solely to disturb the harmony and
happiness of society, or to maliciously annoy and injure the feelings
of others, or to create misery by exposing the latent and personal
defects of associates or acquaintances, the interests of the public
require some preventive notwithstanding the truth of the publica-
tion. This is furnished by the criminal law. But mere injury to the
imagination or feeling, however malicious it may be in its origin,
or painful in its consequences, is not properly the subject of remedy
by an action for damages. Such offenses being unconnected with
any substantive right, are incapable of pecuniary admeasurement
and redress. They admit of no exact definition ; and, therefore, to
extend a remedy to such injuries generally, would be productive of
great uncertainty and inconvenience, and open far too wide a field
of litigation. Again, it seems to be clear that a party who acquires
an advantage by concealing the truth, which he could not have at-
tained to had he divulged it, so far is guilty of fraud in the conceal-
ment that he cannot upon any princii)le claim a right to acquire that
benefit, and therefore cannot complain that he is injured by the
publication of the truth. (Starkie, id., 35.) In this view the truth
hurts no one.

(He then discusses section eleven of the Kansas Bill of Rights
which provides that) "The liberty of the press shall be inviolate ;
and all persons may freely speak, write, or pul:)lish their sentiments
on all subjects, being responsible for the abuse of such right; and
in all civil or criminal actions for libel, the truth may be given in

* As to this see Root, C, in IVertz v. Sprecher, 82 Nebr. 834 (1908)


evidence to the jury, and if it shall appear that the alleged libelous
matter was published for justifiable ends, the accused party shall
be acquitted."

(And Section 126 of the Civil Code passed to carry it into ef-
fect providing- that) "In all actions mentioned in the last section,
(libel and slander,) the defendant may allege the truth of the matter
charged as defamatory, and may prove the same and any mitigating
circumstances, to reduce the amount of damages, or he may prove
either." (From them he deduces the following principles) :

First: In all criminal prosecutions, the truth of the libel is no
defense unless it was for public benefit that the matters charged
should be published ; or in other words, that the alleged libelous
matter was true in fact, and was published for justifiable ends; but
in all such proceedings the jury have the right to determine at their
discretion the law and the fact.

Second: In all civil actions of libel brought by the party claim-
ing to have been defamed, where the defendant alleges and estab-
lishes the truth of the matter charged as defamatory, such defendant
is justified in law, and exempt from all civil responsibility. In such
actions the jury must receive and accept the direction of the court

as to the law.

The order of the district court setting aside the verdict of the
jury in the case and granting a new trial is affirmed.

All the justices concurring.^

■Accord: Ferdon v. Dickens. 161 Ala. 181 (1909) ; Mozury v. Raabe, 89
Cal 606 (1891); Swift v. Dickcrman. 31 Conn. 285 (1863); Henderson v.
Fox, 83 Ga. 233 (1889) ; Becherer v. Stock, 49 III. App. 270 (1892) ; DeAr-
moud V. Armstrong, 37 Ind. 35 (1871) ; Morse v. Times-Republican Printing
Co., 124 Iowa 707 (1904) ; Whittaker v. McQueen, 128 Ky. 260 (1908) ; Coffin
V. Brozcn, 94 Md. 190 (1901); Goldcrman v. Stearns, 7 Gray 181 (Mass.
1856); SuUings v. Shakespeare, 46 Mich. 408 (1881); Thompson v. Pioneer
Press Z7 Minn. 285 (1887); Conner v. Standard Publishing Co., 183 Mass.
474 (1903) ; Julian v. Kansas City Star Co., 209 Mo. 35 (1908); Merrey v.
Guardian Printing & Publishing Co., 79 N. J. L. 177 (1909); Holmes v.
Jones, 121 N. Y. 461 (1890) : Klinck v. Colby, 46 N. Y. 427 (1871) ; Lauder v.
Jones, 13 N. Dak. 525 (1904) ; Press Co. v. Stewart, 119 Pa. St. 584 (1888) ;
but see Mitchell, cf., in Burkhart v. North American Co., 214 Pa. 39 (1906).
p. 43, intimating that the defense may be lost when the matter described was
a private one with which the defendant or the public had no legitimate con-
cern or when the manner and style rendered the publication libelous;
Haxnes v. Spokane Chronicle, 11 Wash. 503 (1895) ; Talmadge v. Baker,
22 "Wis. 625 ( 1868) ; and see for other cases the very full and valuable
note to Plutchins v. Page, 75 N. H. 215 (1909). where the cases on the
whole subject of the justification of truth in slander and libel are collected
and classified.

In Hutchins v. Page, 75 N. H. 215 (1909), it is held that truth is not
always a defense to an action to recover damages for the publication of a
Hbd'and that the occasion must be lawful and the statement, even if true,
published without malice.

It is worthy of note that in 1843 Lords Brougham. Campbell, Denman.
and others, composing the committee on the Law of Defamation, in their re-
port to the House of Lords recommended that truth should only be a justi-
fication if spoken on a proper occasion. As to the policy of allowing truth
to be told without other excuse, see Bower on Actionable Negligence, -Ap-
pendix X, Section II; and R.X)t C, in U'ertc v. Sprecher, 82 Nebr. 834
'1908), p. 838, in tvsk^Ji be s«yv. It is als'' true that convictions for crimin?l


Defendant's Intention to Injure the Plaintiff's Reputation.


Court of Session, 1902. 39 Scottish Law Reporter 432.

This was an action brought by George ^Morrison and Mary, his
wife, against Ritchie & Co., pubHshers and proprietors of the
"Scotsman", in which the pursuers claimed damages for slander
therein contained. The pursuers aver that they were married on the
I2th of July, 1901, and for some time previous to his marriage
George Morrison carried on business at 33 South Back Canongate,
Edinburgh, and that he was presently manager of the Caledonian
Hotel, Ullapool. That on the 15th of August, 1901, the following
notice appeared among the notices of births ; "Morrison : At the
Caledonian Hotel, Ullapool, on the nth inst., the wife of George
^Morrison, of 33 South Back Canongate, of twin sons. Ross-shire

libel are rare, and that the individual does not control the machinerj- of the
criminal courts. It is a further fact that individuals guilty of improprieties,
indiscretions, or crimes, it may be, can, by subsequent observance of the laws
of man and of God, v^in for themselves the respect and confidence of their
associates and of the community. It is repugnant to the crudest ideas of
justice to say that, under such circumstances, the truth of a recital of past
history ought to entitle a defendant to a verdict in a civil action. If the
truth of the article is alleged, it should be received in mitigation of damages
without regard to the motives of defendant or the end sought by the publica-
tion, but the truth alone ought not to be an absolute bar to recovery."

In many states, statutes provide that truth is a justification in the
action of libel but not of slander if the publication be malicious; Maine —
Ellis V. Buzzell, 60 Maine 209 (1872), slander; Pierce v. Radii ff, 95 Maine
346 (1901), libel; Massachusetts — Goldcrman v. Stearns, 7 Gray 181 (Mass.
1856), slander: Perry v. Porter. 124 Mass. 338 (1878), libel; but the plaintiff
must prove affirmatively the defendant's malicious intent, Connor v. Standard
Pub. Co., 183 Mass. 474 (1903). In Louisiana a statue; provides that truth
if pleaded is a justification, if published with good motives and for justifiable
ends, Perret v. Nezv Orleans Times, 25 La. Ann. 170 (1873). Similar pro-
visions exist in the constitutions of West Virginia and Nebraska; Sweetiey
v. Baker, 13 West Va. 158 (1878) ; Wertz v. Sprecher, 82 Nebr. 834 (1908) ;
in New York a somewhat similar provision is construed, as in the principal
case, to apply only to criminal prosecutions for libel, George, tlw Count
Joannes v. Jennings, 4 Hun 66 (N. Y. 1875). In the Mississippi statutory
action for insulting words tending to violence, truth is no defense, but mereb'
goes in mitigation of damages, McLean v. Warring, 13 So. 236 (Miss. 1893).

The truth of the statement must be pleaded to be a defense, otherwise
it may only be shown in mitigation of damages, Ferdon v. Dickens, 161 Ala.
181 (1909); Merrey v. Printing Co.. 79 N. J. L. 177 (1909); and see cases
cited in note to Huichins v. Page, 31 L. R. A. (N. S.) 132, and the justification
must be as broad as the libel and must allege the truth of the statements in
the sense imputed to them bv the plaintiff. Morse v. Times-RcpuhVican Print-
ing Co., 124 Iowa 707 (1904)"; Bodine v. Times-Journal Pub. Co., 26 Okla. 135
(i910) ; Tawney v. Simonson, etc., Co., 109 Minn. 341 (1909).


papers please copy." Th6 same notice also appeared in the "Weekly
Scotsman" in the issue of August 17th, 1901.

They further averred that this notice was inserted in conse-
quence of the following letter: "Mrs. Sutherland, 7 Albert Street,
would like to insert in the "Scotsman" : At the Caledonian Hotel,
Ullapool, on the nth inst., the wife of George Morrison of 33 South
Back Canongate, of twin sons. Ross-shire papers please copy."

The pursuers further averred that no such birth had taken
place and no such person as Mrs. Sutherland resided at 7 Albert
Street, which fact could have been discovered had any inquiry been
made as to the genuineness of the notice.

The defenders pleaded, inter alia, that the statements com-
plained of not being defamatory, the defenders are entitled to decree
of absolvitor and that they, having published the statements com-
plained of in good faith in the ordinary course of their business and
the statements not being per se defamatory, should be assoilzied.

The Lord Ordinary (Kincairney) approved of the following
issues proposed for the pursuers, first, whether the pursuers were
married as alleged and whether the defenders had published the
aforesaid notice on the date in question and "whether the notice is
of and concerning the pursuer George Morrison and is false and

Kincairney, Lord Ordinary. This is an action of damages
against the proprietors of a newspaper on account of defamatory
advertisements. There can be no doubt that the pursuers have suf-
fered a very cruel wrong, and would doubtless recover exemplary
damages from the mean scoundrel who sent the advertisements, if
they could discover him and if he were found to be sane and able
to pay them. But their action against the newspaper raises a ques-
tion of much importance and apparently of some novelty, since no
precise or very close precedent has been quoted.

I do not inquire whether sufficient vigilance was exercised in
the "Scotsman" office before inserting this advertisement. A very
slight inquiry would have disclosed the fraud. A telegram to Ulla-
pool would have disclosed it. The instructions were not signed, but
bore the name of Mrs. Sutherland, 7 Albert Street, and an examina-
tion of the Directory would have disclosed the fact that no such
house existed. But these precautions were not taken. I am far from
imputing any blame on that account, because I suppose it would be
barely possible to make such inquiries about the multitude of such
advertisements w^hich reach the "Scotsman". But that is a matter
which has no bearing on the question under consideration, because
this action is not laid on neglect, but simply upon slander, there be-
ing no plea about neglect.

Malice in the ordinary sense, or in any sense which can reason-
ably be put on the word, is not in the case. It is certain that there
has been no malice. There hardly ever is when the action is laid
against the proprietors of a newspaper on account of what has ap-
peared in its columns, Init the law is that the proprietors of the
newspaper represent their correspondent, and are liable for the in-


jurious paragraph as he would have been. I do not think that the
law does so strange a thing as to imply malice where it manifestly
and certainly does not exist.

The peculiarity of the case seems to be this, that the words
complained of have to all appearance no calumnious, insulting, or
disparaging meaning wdiatever, and that there is no possibility of
affixing any such meaning on them by any license of innuendo, and
yet it appears that, when the facts are known, the words, according
to their plain and only meaning and without the least innuendo, turn
out to be in the highest degree slanderous and hurtful to character,
and extremely reprehensible, so that it will be regrettable if the
perpetrator be not discovered and adequately punished.

It appears, then, that the calumnious character of the words
does not depend on any secret innuendo but on the other surround-
ing circumstances ; and I think that the question of slander or not
must depend on the actual state of the facts and be judged of accord-
ing to them ; and I am of opinion that the pursuers will be entitled
to prove these circumstances for the purposes of disclosing the
slanderous import of the words used.

There have not been many similar cases, and, so far as I know,
none exactly in point. But such cases might occur in other circum-
stances. For example, if A. said of B. that he had sold goods to a
corporation at an exorbitant price, these words would not of them-
selves be libellous. But if it were shewn that B. was a member of
the corporation they would become so — Christie v. Craik, January
12, 1900, 2 F. 380. In Winn v. Qiiillan, December 16, 1899, 2 F.
322, it w^as held to be libellous to call the pursuer an informer. But
it is not clear that it would have been so held had the pursuer not
been an Irishman. To take a more general illustration, suppose a
person were charged with ignorance of law, that would not be an
actionable charge unless he was a practising lawyer, and then it
would be actionable."

The defenders moved the court to vary each of the issues by
deleting the words "whether the pursuers were married on the 12th
of July, 1901," and by inserting the word "malicious" after the word

Lord Moncreiff. The defenders maintained that this action
should be dismissed de piano as irrelevant. I am of opinion that the
pursuers have stated a relevant case to go to a jury.

The sting of these notices lies in this, that the pursuers were
only married on the 12th of July, 1901 — that is, about a month be-
fore the first notice. There is no doubt that read in the light of the
circumstances which the pursuers aver and undertake to prove, the
advertisements in question published in the defender's newspaper
constitute a gross and cruel libel upon the pursuers.

I should not have said even so much upon this point had it not
been that the defender's junior counsel, as I understood him, main-
tained and pressed upon us that the notices taken by themselves
could not bear a defamatory meaning, and that we were not entitled
to look at the intrinsic circumstances averred by the pursuers. I


cannot accede to this siip^j^^estion. In every case in which the words!
uttered or written are not prima facie defamatory, it is coinpetentl
to consider the circumstances in which they are said to have heen
uttered or written. If on consideration of the circumstances averred
by the pursuers the Court is of opinion tliat the words will not
bear the construction which the pursuers seek to put upon them an
issue will not be allowed, but if they are of opinion in view of the
facts stated that the words mig-ht bear that meaning the case will
be sent to a jury to say whether they do bear that meaning. Now,
there is not the slightest doubt that a false notice of birth may in
some circumstances be grossly libellous, and as the present case is
almost as strong a case as can be figured it is unnecessary to mul-
tiply illustrations.

But the defenders maintain that they are not liable, because
( I ) the notices which were sent to them for insertion were not
prima facie defamatory, and (2) they had no reason to suppose that
they concealed a libel.

I am of opinion that in the admitted circumstances this defense
is not relevant. We have been referred to no case in which in judg-
ing of the liability of the proprietor, publisher, or printer of a news-
paper for the publication of a statement, not privileged, affecting
private character, made on the authority of a correspondent, any
distinction has ever been made between a statement libellous on its
face and one of which the libellous character only becomes apparent
in the light of surrounding circumstances or on the words being

The defenders are the proprietors and publishers of the "Scots-
man". For their own satisfaction they take what they consider suffi-
cient precautions to insure the genuineness of these advertisements.
But these precautions, according to their own statements, only con-
sist in their requiring the name and address of the sender, which
may be purely fictitious. No further inquiries are made as to the
genuineness of such notices. Looking to the extensive advertise-
ment business carried on by the "Scotsman", it probably would
not be practicable, consistently with profit and despatch, to make
further inquiry into the genuineness of such advertisements. Xo
doubt it is cheaper to run the risk (apparently not a very great one )
of an action for libel, as the defendant Mr. Mudie said in the case
of Vizetelly v. Mudie.

I think the issues approved by the Lord Ordinary are suffi-
cient to try the case.


Supreme Court of California, 1895. 107 Cai 262.

The defendant was the sole proprietor of the San Francisco
Examiner, in which appeared, on January 10, 1892, an article charg-
ing ''JvW^/Taylor," who, it stated, had a contract with the City of
San'TTancisco fo supply basalt blocks for paving the streets, and



that he had conspired with a city employe to defraud the city by
obtaining; fraudulent receipts for 34 loads of blocks not delivered ;
that he had sworn to and filed a demand for payment on his con-
tract including these 34 loads ; that steps had been taken to prose-
cute him for perjury, but that the man had been sworn to before a
clerk not authorized to administer an oath ; and the only thing for
the city to do was to keep ]\Ir. Taylor's demand until the 34 loads
were eliminated from it.

The plaintiff's complaint alleged that he was and had been en-
gaged for ten years in the business of manufacturing and supplying
basalt blocks to the city of San Francisco and various other persons.

The defendant's answer admitted the publication of the article
but denied that it was "published of or concerning the plaintifif."
It alleged that the charges were not made against the plaintiff and
were not intended to be considered or understood as charges against
him, but were made and intended to be so considered against one
N. Ta }dor^_and that in the printing of the article the initials of
j!>k-lLayIor were by mistake printed J. ^^^

The defendant proved at the trial that there was a John N.
Taylor who had a contract with the city to furnish basalt blocks
and against w^hom a prosecution for perjury had been begun and
dismissed for the reason stated in the article.^

The court among other instructions gate instruction (5) which
in substance was as follows :

That the publication is libelous and that the plaintiff is entitled
to compensatory damages "provided, y ou find _t hat_Jlie d.£i£ndant
meant^ to c li arg: £_ J. W. Ta ylor, the plaintiff, with the commission of
the offenses contained inthe publication, and that third persons
understood that the person meant was J. W. Taylor, the plaintiff."

The case was tried before a jury and the verdict was in favor
of the defendant. Judgment was entered thereon. Plaintiff moved
for a new trial which was denied and appealed from the judgment
and order^

Belcher, C. By instruction Xo. 5 the court told the jury that,
the publication being ujitrue and libelous as to the plaintiff, he was
entitled^ to such compensatory damages as would afford a repara-
^ ^on fo r^all the injury which had naturally and proximately resulted
from the publication ; "proznded, that you find that the defendant
meant to charge J. W. Taylor, the plaintiff', with the offenses con-
tained in the publication, and that third persons understood that
the person meant was J. W. Taylor, the plaintiff." This was in ef-
fect telling the jury, and it must have been so understood, that
unless the defen dant meant to charge the plaintiff" with the offenses
contained in the publication, and third persons so understood it, the
plaintiff was not entitled to recover compensatory damages for the
injury he had sustained.

The proviso attached to the instruction ^ya^ p|-]-rtnprv]i,<; Tht
ipublication did charge the plaintiff" with oft'enses, and whether ii
idid so by design, or was the result of carelessness in setting type,