Ashford v. Evening Star Newspaper Co.. Mooney v. Evening Star Newspaper Co.. Webster v. Evening Star Newspaper Co., 41 App. D.C. 395 (D.C. (D.D.C.) 1914)

Mr. Justice Van Orsdel

delivered the opinion of the Court.

It was proper for the court below to permit defendant to. avail itself of the defense of privilege under the plea of not guilty. Lillie v. Price, 5 Ad. & El. 645, 1 Nev. & P. 16, 5 Dowl. P. C. 432, 2 H. & W. 381, 6 L. J. K. B. N. S. 7; O’Brien v. Clement, 15 Mees. & W. 435, 2 Dowl. & L. 676, 15 L. J. Exch. N. S. 285; McBee v. Fulton, 47 Md. 403, 28 Am. Rep. 465; Bradley v. Heath, 12 Pick. 163, 22 Am. Dec. 418. In Brice v. Curtis, 38 App. D. C. 304, 38 L.R.A.(N.S.) 69, Ann. Cas. 1913C, 1070, this court approved the action of the lower court in directing a verdict for defendant on the question of privilege raised under a plea of general issue. The plea of justification interposed by defendant was limited to the truth of the words published according to the natural and ordinary signification, and without the meaning imputed to them in the several innuendoes contained in the declaration. Issue was joined on this plea. Defendant might have justified the libel with its innuendoes as laid in the declaration, as is frequently done, but it was not so pleaded here. Hence the issue of justification is limited to the truth of the words used in their ordinary sense, without the meaning imputed to them in the innuendoes.

The motion for a directed verdict was based upon the groimds that the publication is privileged, and that plaintiffs’ evidence established the truth of the publication sufficiently to sustain the plea of justification. The publication is not libelous per se. This brings us at once to the question of privilege. One of the highest duties imposed upon the press is that of conducting an honest censorship over the conduct of officials in relation to the management and control of public affairs. Whether or not the officers of the government are dispensing the public revenues in conformity with law, and are conducting themselves according to customs, and rules established to regulate their official conduct, are matters of the highest concern to every citizen.

It should not, therefore, be the policy of the courts to curb reasonable and proper comment when based upon a true statement of fact.

This privilege, which the law recognizes, originates in the right, obligation, or duty to speak or make publication in respect of some matter under consideration. It; may be imperative or optional. If a person in the performance of a duty imposed is required to speak or make publication, the privilege is absolute, irrespective of the question of malice, even though the utterances may he false, malicious, and injurious. For example, this absolute privilege extends to the judges of courts of general jurisdiction, and to the heads of executive departments of the government. Bradley v. Fisher, 13 Wall. 335, 20 L. ed. 646; Spalding v. Vilas, 161 U. S. 483, 40 L. ed. 180, 16 Sup. Ct. Rep. 631. But a different rule applies where the duty or obligation is optional and rests only upon a moral or social obligation. In that instance, the privilege is conditional or qualified, and exists only when the comment is based upon facts substantially true, and when made with proper motives rebutting any legal presumption of malice. The privilege then affords protection until actual malice is shown, and the burden of proving malice must be assumed by the party asserting it.

The occasion in modern experience which calls most frequently for the application of the doctrine of qualified privilege is where a newspaper calls attention to the misconduct of a public officer in the administration of public affairs. In all such instances the newspaper may remain silent; but if it elects to speak, its words are privileged, if it is prompted by an honest desire to present to public scrutiny the transactions of the official in the discharge of his trust. The rule is announced in Kelly v. Sherlock, L. R. 1 Q. B. 686, as follows: “And provided a man, whether in a newspaper or not, publishes a comment on a matter of public interest, fair in tone and temperate, although he may express opinions that you may not agree with, that is not a subject for an action for libel; because whoever fills a public position renders himself- — again happily — open to public discussion, and if any part of his public acts is wrong, he

must accept the attack as a necessary though unpleasant circumstance attaching to his position. In this country, everything, either by speech or -writing, may be discussed for the benefit of the public.” The principle is declared to be “a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly, without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals.” Henwood v. Harrison, L. R. 7 C. P. 606. The same rule is announced in Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322; Gandia v. Pettingill, 222 U. S. 452, 56 L. ed. 267, 32 Sup. Ct. Rep. 127.

The privilege does not extend to the facts upon which the criticism or comment is predicated, for there is no privilege to falsify the fact upon which the communication to which the privilege extends is based. In Burt v. Advertiser Newspaper Co. 154 Mass. 238, 13 L.R.A. 97, 28 N. E. 1, the court, holding that false statements of fact are not privileged, said: “The articles published by the defendant, so far as they contained false statements, were not privileged. ' "We should add, however, with reference to another trial, that there was evidence that some of the charges in the articles were true, and so far as the jury might find them to be so, inasmuch as the matter under discussion was a matter of public concern, the defendant would be justified not only in making those charges, but in free and open comment and criticism in regal’d to them.”

In the present case the framework of fact upon which the alleged libelous comments are made is conceded to be true. It ’is the truth of fact that hurts. The admitted facts reflect more discredit" than the comments. The entire transaction to which the article complained of relates was conducted, in many particulars, in total disregard of the requirements of the law and ■the regulations of the inspector’s office. Every material statement of fact contained in the publication, but one, is admitted, i by plaintiffs to be true. That one is so closely allied to facts '■ ' admitted as to easily lead the writer into a mistaken statement.

This statement is to the effect that no record of the items called for in the contract which Webster and Mooney omitted in order to make up for the $150 deterioration is “on file in the case.” A card showing the items was produced at the trial, and shown to have been prepared by Webster and filed away in Ashford’s office. If tbe contract bad been let as required by law, a memorandum of those changes would have appeared not only in the minutes of the proceeding in the commissioners’ office, but in the contract itself, where it should have been. The changes were agreed upon by Webster and Mooney, and no proper public record made of them. The statement that “no such minutes had ever been of record or on file in the case” is technically correct, since the card produced is not such a public record as the law requires to ho kept in connection with the execution of public contracts. Thus, the whole framework of fact upon’ which the article was constructed was admitted to he substantially true, — sufficiently so, in tbe absence of malice, to bring the publication well within the rule of qualified privilege.

This brings us to the proof of malice. The communication being privileged, defendant will he presumed to have been actuated by pure motives in its publication. In order to rebut this presumption, express malice or malice in fact must be shown. This may appear from the face of the publication or from extrinsic proof. We are of opinion that the article contains nothing from which actual malice can reasonably be inferred. This is so clear that there seems to us to be no room left for reasonable minds to differ upon this point. Before the inference of express malice can be indulged, the publication must, in comment, be so excessive, intemperate, unreasonable, and abusive as to forbid any other reasonable conclusion than that defendant was actuated by express malice. Nothing appears on the face of the publication in this case to justify such an inference.

Offers were made by plaintiffs to prove malice by extrinsic evidence. They sought to put in evidence a written statement prepared by plaintiff Ashford (purporting a detail to conversation between him and Thomas C. Noyes, a stockholder and

director in defendant corporation. It also appears that, shortly after the publication of the alleged libel, Noyes was made treasurer of the corporation. He was also in the employ of the newspaper, under the designation of news manager, a salaried position under the direct supervision of the editor. On objection of defendant the court refused to admit this statement. The statement was properly excluded for several reasons. The conversation occurred some months after the publication of the alleged libelous article, and after the declarations in these cases were filed, and consisted of threats made by Noyes against plaintiff Ashford because of the institution of the present suits. It appears in the course of the trial that Thomas 0. Noyes, at the time the article was published, was absent from the city and knew nothing of it, and that, had he been present, it would have been no part of his duty to supervise its publication. The court was considering the issue of malice on the part of defendant, and not of Thomas 0. Noyes. Says Odgers in his work on Libel and Slander, p. 270: “Such evidence must go to prove that the defendant himself was actuated by personal malice against the plaintiff. In an action against the publisher of a magazine, evidence that the editor or the author of any article, not being the publisher, had a spite against the plaintiff, is of course inadmissible. Robertson v. Wylde, 2 Moody & R. 101; Clark v. Newsam, 1 Exch. 131, 139, 16 L. J. Exch. N. S. 296; Carmichael v. Waterford & L. R. Co. 13 Ir. L. Rep. 313.”

The publication. of the article in question not being any part of the duties of Thomas C. Noyes in connection with defendant corporation, and the alleged communication not having occurred contemporaneously with the publication of the article, and therefore not being part of the res gestee, he was not acting within the scope of his agency, and he could not, therefore, bind defendant by any statement he may have made in relation to the publication. Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 80 L. ed. 299, 7 Sup. Ct. Rep. 118; Goetz v. Bank of Kansas City, 119 U. S. 551, 30 L. ed. 515, 7 Sup. Ct. Rep. 318; Hayzel v. Columbia R. Co. 19 App. D. C. 359.

The written statement was also inadmissible, since Ashford testified at the trial, and there is nothing to show that he had not a distinct recollection of all that occurred at the alleged conversation. Sechrist v. Atkinson, 31 App. D. C. 1; Gurley v. MacLennan, 17 App. D. C. 170; Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 30 L. ed. 299, 7 Sup. Ct. Rep. 118; Crawford v. United States, 30 App. D. C. 1.

Error is assigned by plaintiffs upon the refusal of the court below to admit in evidence six newspaper articles published in defendant’s paper, purporting to criticize the official conduct of plaintiff Ashford. Three of these articles were published before and three after the date of the publication of the alleged libel. While they relate to the conduct of the inspector’s office by Ashford, they have no reference to the subject-matter of the present publication. It is insisted by counsel for plaintiffs that they relate to the same subject-matter, in that they tend to criticize the administration of the inspector’s office. The subject-matter of the alleged libel relates to the execution and carrying out of a contract for the construction of a particular building, and merely because the inspector of buildings happened to be connected with it, as with thousands of other official matters connected with the administration of this office, many of which appeared, from time to time in the daily papers, would not justify all such references being dumped into the present case.

We think the rule is well established in this country, that to make extrinsic newspaper articles competent to establish malice they must relate directly to the subject in which the libel originated. The articles excluded had no reference whatever to the subject-matter of the present publication. While there is some conflict in the authorities on this subject, the great weight favors the admission of only such utterances as relate directly to the subject of the alleged libel. The rule is well stated in Root v. Lowndes, 6 Hill, 518, 41 Am. Dec. 762, where the court said: “When the plaintiff does not go beyond the words laid in the declaration, I see no reason why he may not show that.

those words have been spoken on a dozen different occasions. * But very different considerations arise when we come to actionable words which are not laid in the declaration. To admit the proof of such words must be a surprise upon the defendant. It cannot be supposed that he will be prepared to try a matter of which the plaintiff has not complained. That is not all. If the plaintiff may prove the Avords, the defendant may justify as to those words; and thus the court and jury will be led off from the point in controversy as presented by the pleadings, into the trial of an indefinite number of collateral issues.” f

Counsel for plaintiffs rely chiefly upon an article in Wigmore on Evidence, Avhere the author severely criticizes the decision in Root v. Lowndes. This criticism is ansAvered in Ball v. Evening American Pub. Co. 237 Ill. 592, 86 N. E. 1097, as folloAvs: “Whether subsequent publications of independent libels differing in character from the first, not connected thereAvith and not counted upon, may be proven for the purpose of shoAving malice of the defendant, is a question in reference to which the authorities are in conflict. It lias never been passed upon by this court. The defendant, in this connection, relies principally upon the case of Root v. Lowndes, supra. Plaintiff says that case has been repudiated and discredited by a discussion found in Wigmore on Evidence. The judgment in that cause Avas the pronouncement of able judges. To their professional knoAvledge, theoretical in character, had been added wisdom acquired by long experience in the actual practice and administration of the laAV in the courts. We do not regard the force of that adjudication as an authority as at all Aveakened by Prof. Wigmore’s unfavorable criticism of the court’s vieAvs.”

As suggested in Root v. Lowndes, supra, to have admitted the articles offered Avould have been equivalent to instituting a separate trial as to the truth of each, in order to determine whether its publication Avas malicious, which Avould haAm entailed endless confusion over collateral matters. The reason for confining the rule to utterances relating to the same subject is manifest, in that the proof adduced as to the alleged libelous

publication will relate directly to the matters sought to be introduced. There was no error in excluding the evidence.

The judgments are affirmed, with costs. Affirmed.

A motion by the appellants for a reargument was overruled March 2, 1914.