Wilson v. Fitch

41 Cal. 363

• Court: California Supreme Court
• Decided: July 1, 1871
• Docket: No. 1,724
• Status: Published

Opinion

By the Court, Crockett, J.:

If the alleged libel was actionable per se, it was unnecessary to prove the colloquium in order to make out a prima facie case for the plaintiff*. When a libel is not actionable on its face, but has a covert, libelous meaning, a colloquium is necessary to explain the subject matter, and to bring to light the true interpretation of the libelous words. In such cases the colloquium must be proved. But in the present case the alleged libel is actionable on its face, and it was unnecessary to ' prove the colloquium.. FTo unprejudiced person of ordinary intelligence can read the publication complained of, and avoid the conclusion that it imputes to the plaintiff grave offenses and dishonest practices, which, if established, would justly bring him into general contempt and disgrace. The motion for a nonsuit was therefore properly denied.

“ The investigations are not yét encieci, but the^chieF owners believe they have been outragéously swindled.” The defendants offered to call the ^cdiief owners of the mine, to prove by them that at the date of the publication they believer1 +hey had been -outrageously swindled. The Court excluded this proof, but. decided that defendants were entitled to prove all the facts and circumstances tending to show that the owners, or any of them, had been swindled, and all facts and circumstances tending to create such belief. The defendants excepted, and assign this ruling as error. They claim that the proof was admissible, both in justification of that portion of the alleged libel and in mitigation of damages. But it was clearly inadmissible for either purpose. It cannot be denied, and the counsel for the defendants concedes to the fullest extent that it is well established, both on reason and authority, that if a libel assert the defamatory matter, not as a fact, but only on the belief of the author, or as a rumor or general suspicion, the libel cannot be justified by proof that the author believed it to be true, or that there was such a rumor or general suspicion. The alleged libel contains a oh in these words:

In order to justify a publication, purporting to be made '■ on the belief of the author that the fact was true, the defendant must prove the truth of the fact, and not merely that he believed it to be true. If one publish of another that he believes he was guilty of murder or arson, it is no justification to prove that he did in good faith believe it; but to make good the justification he must prove that the plaintiff was, in fact, guilty of murder or arson. This is conceded on all sides to be the law; and it results necessarily that if the publication complained of here had asserted that the author of it believed the chief owners of the mine had been swindled, it would not have been a justification to prove that he did so believe. To justify the publication he propositions, more plausible reasons can be adduced why proof of the belief should be held. to be a jiriific$ti*.v¡ in the former case rather than in the latter. When the author sources of his information, and whether they arc apparently reliable, and whether the conclusión drawn from the facts is reasonable. But these elements may all be lacking in respect to the belief of another. He may have had no plausible grounds whatever for the belief; and to permit a defamatory charge published as the belief of some other person, to be justified by proof that such person did believe the fact to be as stated, would subvert one of the most thoroughly well established rules of the law of libel, and break down one of the chief safeguards of private reputation. The proof which was offered and excluded was obviously inadmissible as a justification. Bor was it competent evidence in mitigation of damages. The “ mitigating circumstances ” which are permitted by section sixty-three of the code to be pleaded and proved, must be such as tend to rebut-the presumption of malice, or to reduce its degree. All libels are conclusively presumed to be, in some degree, malicious; but there are different degrees and phases of malice; and some actionable defamatory publications (all of which the law deems to be malicious, except privileged communications), are in fact published without actual malice. It is eminently just, therefore, that the defendants, with a view to reduce the damages, should be allowed to rebut the presumption of malice by the proof of what the statute terms “mitigating circumstances;” that is to say, the cir-must have proved y had, in fact, been swindled. But, how can it vary neiple which underlies this rule of law, ihat.the_cli8Lo . . ide, not as a matter of belief on the part of the author, but as the belief of other persons? If there be any difference in principle between the two publishes his own belief that a fact exists, he knows the ion was made, and the cumstanees under which il real motives which induce *

itted to show the fed facts, the edition was made, and the In this case the defendant sources of their information cumstanees under which the publ real motives which led to it; and they did, in fact, prove by the witness, hlisbet, that Maynard, one of the chief owners of the mine, stated to the defendants, or one of them, that he and the other principal owners believed they had been swindled. They were further permitted to show that they believed this information to be péffeetly reliable, and published the facts as related to them by Maynard, in the full belief that they were true, and not from any malice or ill will toward the plaintiff, but only as a matter of general public interest. Could it, in any possible view of the subject, have tended further to extenuate the publication, if it had been proved that the chief owners did, in fact, then believe they had been swindled? It cannot, I think, be doubted that, so far as the conduct and motives of the defendants are concerned, the actual belief of the owners that they had been swindled is a wholly immaterial circumstance. The defendants were informed, from an apparently reliable source, that they did so believe; and they acted in good faith on this information, believing it to be true. Would it render the conduct of the defendants either more or less reprehensible if it afterwards appeared that the chief owners did or did not believe they had been swindled? In deciding on the conduct or motives of the defendants, the belief of the owners of the mine that they had been swindled was a false quantity. It in no respect touched the question at issue, to wit: the conduct and motives of the defendants in making the publication. If the defendants were credibly informed, from an apparently reliable source, that the owners did so believe, and if they acted on this information, believing it to be true, the extenuation was none the more complete from the fad^^^^^Hswners clid so believe, nor would have been an^^^^^^Heté if they had not so believed. The fa^i was wholly immaterial, and could have no e'^pPH^^Hse one way or the other toward elucidating the conducf^^moti ves of the defendants. The proof was, therefore, properly excluded.

Another point made by the defendants is that the publication was privileged, and that the defendánts could -not be held liable, except on the proof of express malice, of which, it is claimed, there was no evidence whatever. It is said to be privileged, because it was published by public journalists as a matter of general and peculiar public interest, and related to the conduct of the plaintiff in his capacity of trustee of a mining corporation. But this was a private and not a public corporation. The plaintiff was in no sense a public officer, and was responsible only to the stockholders and creditors of the corporation for the fidelity of his conduct as a trustee. His office was no more a public office than that of a trustee of a private corporation to build a bridge or construct a wagon road." Officers of this character have never been deemed public officers in such sense as to render them amenable to criticism, as in case of persons filling public offices of trust and confidence, in the proper administration of which the whole community has an interest. In the latter class of officers public policy demands that their official conduct should be open to unrestricted criticism, in which no malice is implied by law; and express malice must be proved to render the author liable. No case has been cited, nor am I aware of any, which holds that the trustee of a private corporation is a public officer in the sense claimed by the defendants. Nor can a defamatory publication in a public journal be said to be privileged simply because it relates to a subject'of public interest, and was published in good faith, without malice, and from laudable motives. No adjudicated case, that I am aware of, has ever gone so far. But whilst such j| deemed privileged, so as to require pro the publisher, in order to rebut th 8 preSJ should be allowed the fullest opp^*to£y to sS>w ihe circumstances under which the pubip^tion was made, the sources of his information, and the motives which induced the publication. The public interest, and a due regard to the freedom of the press, demands that its conductors should not be mulcted in, punitive damages for publications on subjects of public interest, made from laudable motives, after ¿lié inquiry- as to the truth of the facts stated, and in the honest belief that they were true. On the other hand, if the rule were further relaxed, so that such publications in respect to private persons would be deemed privileged, thereby shifting the burden of proof from the defendant to the plaintiff, in respect to malice, there would be but little security for private character.

It is easy for the publisher to show the circumstances under which the publication was made, the sources of his information, and the motives for the publication, and thus to rebut the presumption of malice. But if the burden of proof was on the plaintiff, it would often, and perhaps generally, be very difficult, if not impossible, to prove express malice. I think the present rule, which allows to the. publisher the fullest opportunity to rebut the presumption of malice, secures to him all the protection which is consistent with a due regard to the safety of private character.

There was no error in excluding from the jury the article from McCullough’s pamphlet, or the publication in the Morning Call. The former had no reference whatever to the transactions referred to in the present case, and must be deemed libelous, inasmuch as the Court had no means of determining its truth or falsity by a judicial investigation. A former distinct libel on the plaintiff' by another person ought not, on any principle of reason or justice, to be held successive labeler;“ less remedy would the- second libel. If the rule were frequently an innocent person was b^ his chance for redress against each he more flagrant his wrongs,0 the law afford him. It has often been decided that it is not admissible to prove in mitigation that prior and up to the time of the publication the plaintiff had been generally reported and suspected to have been guilty of the acts imputed to him in the libel. Some of the earlier cases hold such proof to be admissible. (Earl of Leicester v. Walter, 2 Camp. 251; 1 Maule & Selw. 284; Anthon’s Nisi Prius, 38-40, and notes; Noble v. Fuller, Peak’s Add. Cases, 139.) But the current of modern authorities is to the contrary. (Treat v. Browning, 4 Conn. 415; Jones v. Stevens, 11 Price, 82; Mills et al. v. Spencer et al., 1 Holt, 53; 3 Engl. C. L. R. 177; Inman v. Foster, 8 Wend. 606; Saunders v. Mills, 6 Bing. 215, 220; 19 Engl. C. L. R. 104, 106; Hare & Wallace Hotes, 1 Am. Leading Cases, 201, et seq.; Townsend on Slander and Libel, 504, et seq.)

These decisions proceed on the theory that public policy, the good order and repose of society, and a due regard for the protection of private character, demand that no one should be permitted to excuse or palliate the offense of defaming the reputation of- another on so slight a ground as' public rumor or general suspicion, which are often wholly unfounded, and the result either of malice or misapprehension, If the defendants had offered to prove, in mitigation, that the plaintiff was commonly reported and generally suspected to have been guilty of the acts imputed to him in the alleged libel, I.think the proof would not have been admissible in mitigation of damages, under the rule established by the almost unbroken current of modern decisions.

Assuming that the article in the Morning Gall related to the same transactions referred to in the publication in the Bulletin, it must be deemed libelous, for the reasons already stated in respect to the article from and it is not pretended that the public was founded in any degree on the inforr the Morning Call, or any one connected with it. On the contrary, the defendant, Klsbet, testifies that he made an unsuccessful effort to obtain information from that source before the article in the Bulletin was written, and, failing to obtain it in that quarter, the publication was based on the information derived from Maynard, which was deemed entirely accurate and thoroughly reliable. The article in the Call performed no other office than to direct his attention to the suhjfict, and to stimulate further inquiry. A general rumor on the street would have led to the same result, and proof of the rumor would have been as admissible in mitigation as the publication in the Call, which, as here presented, can be treated in no other or more favorable light than as a printed rumor; and, as already stated, proof of rumors or general suspicion is not admissible in mitigation of damages.

It is also assigned as error that the evidence did not justify a verdict for the plaintiff; but there was some evidence tending to support the plaintiff’s case, and it was the province of the jury to weigh the testimony. We never disturb the verdict on the ground that it was not justified by the evidence when there was a substantial conflict in the testimony, even though we may consider it to be gre.atly against the weight of evidence.

We are also urged to reverse the judgment on the ground that the damages are so grossly excessive as to raise a reasonable presumption that the verdict was rendered under the influence of passion or prejudice in the jury. After a careful examination of the evidence, it is impossible, I think, to resist the conclusion that the damages are for a larger sum than the facts justified. of special damage, and if was satisthat the publication was made after an apparently reliable source as to the truth of the facts, and in the full belief that the publication was true. And there was not only no proof of express malice, but it was clearly shown that the defendants had no malice or ill will toward the plaintiff, and made the publication in the usual course of their business as public journalists, believing the matter to be one of special interest to the. public at that time. It was, therefore, not a case calling for punitive damages, nevertheless, the law implies that every libelous publication causes some damage to th-e. injuf-gd party, and it is the peculiar province of the jury to estimate the amount. The Court will not interfere in such cases unless the amount awarded is so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice. In this case, whilst the sum awarded appears to be much larger than the facts demanded, the amount cannot be said to be so grossly excessive as to be reasonably imputed only fo passion or prejudice in the jury. In such cases there is no accurate standard by which to compute the injury, and the jury must, necessarily, be left to the exercise of a wide discretion; to be restricted by the Court only when the sum awarded is so large that the verdict shocks the moral sense, and raises a presumption that it must have proceeded from passion or prejudice. As already stated, the verdict in this case is not so .grossly excessive as to raise that presumption.

Judgment affirmed.