Pickford v. Talbott

28 App. D.C. 498, 1906 U.S. App. LEXIS 5271

• Court: District of Columbia Court of Appeals
• Decided: December 14, 1906
• Docket: No. 1698
• Status: Published

Opinion

Mr. Chief Justice Shepaed

delivered the opinion of the Court:

But two exceptions were taken by the appellants during the trial, and only so much of the evidence recited at length in the bill of exceptions has been set out in the preliminary statement as is necessary to the elucidation of the questions raised by the assignment of errors.

Tbe plaintiff, having testified briefly on his own behalf in support of the formal allegations of his declaration, was examined, without objection, on some matters relating to his investigation of the burning of the house in Maryland, for which the defendants had been indicted. The court of its own motion interrupted the examination, making this statement to counsel for defendants: “On what line are you pursuing this inquiry ?” Counsel replied: “I am going to show, if I can, the absence of good faith in this indictment on the part of the district attorney” (meaning plaintiff). After some discussion the court said: “I think I have heard enough to know what your proposition is. I cannot see but that it is an attempt to prove the truth without pleading it. " * * You may prove anything Pickford heard the witness say before the article was published.” Defendants’ counsel: “I want to prove by this witness, first by his own testimony in connection with the transaction complained of, that he is not the man of good character that he says he is.” Plaintiff’s counsel interposed to say that he did not object. Defendants’ counsel, continuing, said: “Secondly, I want to show that Mr. Pickford, from what he heard the plaintiff say, had reasonable grounds to believe that he was mixed up in some way with this conspiracy.” The court: “You may prove anything Pickford heard the witness say before the article was published.” Counsel for defendants: “I understand the court will not let me go into the inquiry as to whether or not the plaintiff knew the man Hudson before he made this presentment to the grand jury, and whether he investigated the character of the man.” The Court: “Under your statement that you propose by that line of testimony to prove that the district attorney acted in bad faith, I will not hear it because I do not think it is relevant for that purpose.” Counsel for defendants noted an exception, and the first assignment of error is founded thereon.

It does not appear from the foregoing recital what particular questions were intended to be propounded to the plaintiff, but it is contended that the intent was to show the plaintiff’s bad character. Many authorities hold, and, as stated in 2 Greenl. Ev. sec. 424: “It seems well settled that the defendant may im-peacli the plaintiff’s character by general evidence in order to reduce the amount of damages,” under the general issue. Some hold, also, that where the plaintiff has been charged with being a person of criminal or vicious practices, evidence of the commission of particular acts of the kind charged, or of bad reputation-in regard thereto, is also admissible. These questions are not involved, because no such evidence was intended to be elicited from the plaintiff. The court understood what counsel first «expressly stated, that the attempt was to show bad faith in the plaintiff, as State’s attorney, in procuring the indictment of defendants for arson, and in conducting the prosecution. In other words, he regarded it as an attempt to prove the truth of the published words without a plea of justification. In this view lie was clearly right in excluding the inquiry. It is a well-settled rule that evidence tending to show the truth of the alleged libelous words is inadmissible, under the general issue, either in "bar of action or in mitigation of damages. 2 Greenl. Ev. secs. 424, 425; Townshend, Slander and Libel, sec. 409.

The court was apparently correct in his understanding of the proposed line of inquiry; but if mistaken it was the duty of «counsel to correct his misapprehension by a specific statement of the questions they desired to ask, or of the particular facts they proposed to inquire of.

The next assignment of error is on the exception taken to the refusal of the following special instruction asked by the defend.ants:

“1. The jury is instructed that this action is based solely upon the article printed in the issue of the newspaper known as the Sunday Morning Globe, of December 8, 1901, and that, in ■order to entitle the plaintiff to recover, the jury must find that the exact language of that article, or such part thereof as the jury under the instructions of the court shall find to be libelous' and as are set forth in the declaration, was or were written, or .authorized to be written, or published, or authorized to be published, by the defendants, or one of them; and its verdict in any •case can be against only such one, if- either, of the defendants as is shown by the evidence so to have written or published, or authorized the writing or publishing, of the same. And in considering whether the defendants, or either of them, authorized the publishing of the said article, or any such part thereof, as set forth in the declaration, it will not be sufficient to find from the evidence only that the defendants, or either of them, had lmowledge, in advance of the publication of the said article, that it was to be published and expected its publication; the jury must find from the evidence that the defendants, or one of them, authorized, directed, or participated in the publication.”

The charge given by the court relating to this point is in the following language:

“Therefore this article on the face of it, as a matter of law, is libelous, and its meaning libeled this plaintiff. The question for you to decide is whether these defendants have done it, or whether somebody else has done it. There are two theories upon which the plaintiff submits to you the proposition that the defendants have libeled him. The first is predicated upon the testimony of Mr. Elliot, who gave testimony tending to show that the defendants procured him to publish this article after they knew what was in it, about the plaintiff; that the defendants had procured him to publish this article, knowing what it contained with respect to the plaintiff, Mr. Talbott. If they did, it is immaterial whether they wrote it or not. If they knew what this article was going to be in advance, as the testimony of Mr. Elliot indicates, if they procured him to publish the article in so far as it referred to Talbott, then they are liable for it, although they did not write it themselves. But if, when you •consider Elliot’s testimony, opposed, as it is, by the testimony ■of the defendants, and perhaps other witnesses, you conclude that the fact of that matter was that these defendants, and neither of them, did in person go to Elliot’s office before the publication of the article of December 8th, and that neither of them did actually procure him to publish that article before he published it, in respect of its allegations as to Talbott, then in that regard they are not responsible for the publication on that Theory as submitted by the plaintiff.

“Then you would have to proceed to consider whether or not, after Elliot bad printed the article in bis paper, they secured that particular paper and gave it circulation; because the publication of an article which on its face is a libel injures the good name of the individual libeled, independent of Avho wrote it. So that, inasmuch as this article is on its face a libel, if the defendants, or either of them, secured copies of the paper after it was published, and themselves put it in circulation after it was published, then they would be responsible for it the same as if they had written it themselves. But if not, then they would not be responsible at all for this libel, unless it be irpon the other theory the plaintiff submits, which is as follows: That, although they did not write the article themselves, that although the jury may find they did not go to Elliot’s and get Elliot to print the article, that nevertheless they procured Judge Mackey to-write the article, and that they are responsible for it on that account.

“That depends entirely upon whether Judge Mackey wrote an article on his own account and carried it to Elliot for publication on his own account, or whether he wrote an article and carried it to Elliot, as the mere conveyance, from these defendants., It is not necessary that they should have said to Judge Mackey, in express words, ‘You write an article, this article, and you carry this to Elliot and get him to put it in the paper for usbut it is necessary for you to find from the evidence, before you can hold them responsible for anything that Judge Mackey did, that they, either directly or by implication, made him their medium for the purpose of transmission to Elliot for publication of the article. If you find that they knew Judge Mackey was about to take an article to Elliot, that is not sufficient. They did not have to stop him. It is necessary, as I have said, that you draw the distinction, and ascertain whether the article carried by Mackey was his own article, taken of his own volition,, or whether it was an article carried to Elliot by Judge Mackey as the mere conveyance from them of their plan and purposes, as-distinct from Judge Mackey’s plan and purposes. If you find, that he was their agent in that regard, then they are responsible for what he wrote upon this subject, to the extent that they authorized him to write. If he was their agent for the purpose of writing the article, it is not necessary that they shall have said to him, in order to be responsible for his language, 'Write this, that, and the other thing,’ in so many words. But it is necessary that they, either directly or by implication, authorized him to write, under such a general authority as fairly carried Avith it the authority to express on their behalf what the article contains. If so, they would be responsible for Avhat he Avrote in that regard. Otherwise, not.

“There, horvever, you have to make another inquiry, as follows: Even if you find that they did authorize Mackey to carry to Elliot for publication an article, they are not yet responsible for this article unless you find this is the article that they fairly authorized him to carry. That is to say, inasmuch as the libel of this article respecting Talbott grows out of what this article says about Talbott — not about somebody else — you Avill have to find, before you can hold them for what Judge Mackey did, that Judge Mackey was their agent for the purpose not only of Avriting the article, but Avas their agent for the purpose of writing substantially about Talbott Avhat this article says about Talbott; because, in so far as this article mentions Talbott in a way that injures his name as a lawyer and •official, if you find that those parts of this article were written by Elliot, and not by Judge Mackey, and yet you find that Judge Mackey Avas authorized by these.defendants to write the balance of the article so far as it did not defame Talbott, then they Avould not be responsible for the part of it that did defame 'Talbott. That is the last question of fact that occurs to me Avhich you will have to decide in determining that second phase of it that the plaintiff submits to you for your determination.

“If you find that, in either of the aspects under which the case goes to you, the defendants are responsible for so much of the •article as injures the good name of Talbott as an officer and a lawyer, then, inasmuch as the- article on its face is a libel, if they ■are responsible for that part of it that libels Talbott, because they, either directly or by implication, occasioned the publication of it, then the plaintiff has proved a right to recover, and you would be concerned in ascertaining wliat tbe rules of law are concerning the measure of his damages.”

In our opinion this charge, no part of which was excepted to, clearly and fairly stated the law applicable to the several phases-of the evidence offered by both parties, relating to the publication of the so-called Mackey article on December 8, 1901, to-which publication alone the consideration of the jury was, at the request of the defendants, expressly confined. As it embodied all that was contained in the refused instruction, the-denial of the latter was not error.

The judgment will therefore be affirmed, with costs.

Affirmed.