Starks v. Comer

• Decision Date: 17 December 1914
• Docket Number: 843
• Citation: 190 Ala. 245,67 So. 440
• Parties: STARKS v. COMER.
• Court: Alabama Supreme Court

67 So. 440

190 Ala. 245

STARKS v. COMER.

No. 843

Supreme Court of Alabama

December 17, 1914

Appeal from City Court of Birmingham; C.C. Nesmith, Judge.

Action by Braxton B. Comer against B.M. Starks and others for libel and slander. Judgment for plaintiff, and defendant B.M Starks appeals. Affirmed.

Tillman Bradley & Morrow, of Birmingham, for appellant.

Samuel D. Weakley and Frank S. White & Sons, all of Birmingham, for appellee.

SOMERVILLE J.

The question of primary importance in this case is whether or not the communication made to the public by the defendant Starks and others confederated with him, through the medium of the two Birmingham daily papers, was, though false, a privileged communication, if made with a bona fide belief in its verity, without actual malice to the plaintiff, and only for the purpose of informing the voters of the state as to his character and fitness for the office of president of the Alabama Railroad Commission; the plaintiff being then a candidate for the party nomination for that office in the forthcoming democratic primaries.

In other branches of this case heretofore appealed to this court (Comer v. Age-Herald Pub. Co., 151 Ala. 613, 44 So. 673, 13 L.R.A. [ N.S.] 525; Comer v. L. & N.R.R. Co., 151 Ala. 622, 44 So. 676; Comer v. Advertiser Co. et al., 172 Ala. 613, 55 So. 195), this question does not seem to have been presented; nor does it appear that the general question involved has ever been a subject of decision or discussion by this court.

As shown by the briefs of counsel, the decisions in other jurisdictions are numerous, and diverge in two main conflicting lines, with some intermediate shadings of opinion.

We have examined these decisions, and have considered the question, with much care and with a due solicitude for the adoption by this court of the rule which most nearly reflects the spirit of reason, justice, and sound policy; and we conclude that the libelous publication here shown was not one of qualified privilege, and that liability for actual damage by reason of its falsity cannot be defeated by such a plea.

Some of the leading authorities which support this view, with a citation and discussion of the other cases, are the following: Com. v. Clap, 4 Mass. 163, 3 Am.Dec. 212; Burt v. Newspaper Co., 154 Mass. 238, 28 N.E. 1, 13 L.R.A. 97; Banner Pub. Co. v. State, 16 Lea (Tenn.) 176, 57 Am.Rep. 216; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N.W. 431, 15 Am.St.Rep. 318, and note, 353-357; Smith v. Burrus, 106 Mo. 94, 16 S.W. 881, 13 L.R.A. 59, 27 Am.St.Rep. 329; Upton v. Hume, 24 Or. 431, 33 P. 810, 21 L.R.A. 493, 41 Am.St.Rep. 863; Jones v. Townsend, 21 Fla. 431, 58 Am.Rep. 676; Hamilton v. Eno, 81 N.Y. 116; Star Pub. Co. v. Donahoe (Del.) 58 A. 513, 65 L.R.A. 980; Coffin v. Brown, 94 Md. 190, 50 A. 567, 55 L.R.A. 732, 89 Am.St.Rep. 422; Dauphiny v. Buhne, 153 Cal. 757, 96 P. 880, 126 Am.St.Rep. 136, citing Jarman v. Rea, 137 Cal. 339, 70 P. 216; Post Pub. Co. v. Hallam, 59 F. 530, 8 C.C.A. 201 (opinion by Judge Taft). In line, also, may be noted the leading English case of Davis v. Shepstone, 55 L.T.Rep. (N.S.) 1, 11 App.Cas. 187, 190.

Judge Freeman, after a very full consideration of the conflicting authorities, reached the conclusion that:

"The better opinion, and the one sustained by the preponderance of the authorities, both English and American, is that false or defamatory publications concerning the acts or character of a candidate are not privileged, and are actionable." Note, 15 Am.St.Rep. 355.

In his article on Libel and Slander in 25 Cyc. 404, Prof. Kinkead summarizes the law as follows:

"When a man becomes a candidate for office, his character for honesty and integrity and his qualifications and fitness for the position are put before the public and are thereby made proper subjects for comment. But as a general rule false allegations of fact charging criminal or disgraceful conduct, or otherwise aspersive of character, are not privileged."

To the same effect is the text of 18 A. & E.Ency.Law, 1042.

It is, of course, to be conceded that the decisions on the other side are respectable both as to their number and authority. Perhaps the leading ones are Briggs v. Garrett, 111 Pa. 404, 2 A. 513, 56 Am.Rep. 274; Morse v. Times Co., 124 Iowa, 707, 100 N.W. 867; Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 20 L.R.A. (N.S.) 361, 130 Am.St.Rep. 390; Express Print. Co. v. Copeland, 64 Tex. 354. And alone among commentators, Judge Cooley seems to favor the minority view. Cooley on Const.Lim. (7th Ed.) 644. See, also, 22 Harvard Law Rev. 446.

The authorities above cited have presented the reasons leading to their conclusions so fully that nothing of value can now be added. We venture the suggestion, however, that the public interest and welfare, upon a consideration of which alone the minority view seems to be grounded, are quite as likely to be injured and defeated by the public calumniation of worthy candidates for public office--usually impossible of seasonable refutation other than by mere denial, and often not even by that--as they are likely to be conserved by the public exposure of the unfitness of those who are unworthy. Indeed, it may perhaps be asserted, as a matter of common experience, that the great majority of the detractory charges which are made or published against candidates during political campaigns are without substantial foundation in fact; and, also, that they are made for personal or partisan purposes, rather than for the enlightenment of the electorate and the purification of their verdict at the polls.

Hence, not only as a matter of private justice, but on considerations of sound public policy as well, the disseminators of such calumnies ought not to be immune against civil responsibility merely because they believe them to be true, and themselves use them in good faith for the edification of the public. It is, of course, not to be understood that this view in any way denies the privilege of fair criticism of and comment upon the character, conduct, or fitness of candidates for public office. But such criticism and comment must be founded on facts, and not on falsehoods, and must be legitimate and reasonable, as pointed out in the case of Parsons v. Age-Herald Co., 181 Ala. 439, 61 So. 345, 350.

It results from the principles above approved that the defendant's special pleas of qualified privilege were subject to the demurrers assigned, and the demurrers were properly sustained.

Under the plea of the general issue, our statute allows the defendant to give in evidence the truth of the words spoken or written, or the circumstances under which they were spoken or written only "in mitigation of damages," and not in bar of the action. Code, § 3746; Ferdon v. Dickens, 161 Ala. 181, 49 So. 888. But, in such case, a requested charge, which submits to the jury the question of truth or falsity, ought also to limit that issue to the mitigation of damages, since otherwise it might very well mislead the jury as to the effect of their finding. Under such a plea, the defendant in this case introduced evidence tending to prove the truth of the alleged libel. At plaintiff's request, the trial judge instructed the jury that:

They could "consider the question of the truth of the publication only as bearing upon the question of punitive damages, and in that aspect of the case the burden of proof to show the truth of the charge would rest upon the defendants and not upon the plaintiff."

It is insisted for the defendant that the truth of the charge has a logical bearing upon the amount of the actual damage, in that the mental suffering arising from the publication of a charge which is true in fact may not be so great as it would be if the charge were false in fact. Logically, and in spite of the popular adage, "It's the truth that hurts," appellant's proposition is sound enough. Yet, under the peculiar rules which govern the pleading and proof in actions for defamation, we can find no warrant for the consideration of the truth of the publication for the purpose claimed. In the absence of a plea of justification, it is, by the express limitation of the enabling statute, to be considered only in mitigation of damages, and hence it cannot become a factor in the ascertainment of actual damage. This is to say in effect, as affirmed by plaintiff's eleventh given charge, that, so far as actual damages are concerned, the falsity of the publication is in this case, under the pleadings, to be conclusively presumed.

A legal presumption which establishes an element of a plaintiff's case, or of a defendant's defense, in his respective favor, in effect imposes upon the other party the burden of proof with respect thereto. This is especially true where a legal presumption supports an allegation of pleading. In the present case the law presumes that the publication was false, and that presumption continues until it is overcome by evidence showing its truth. Hence the charge to the jury that the burden of proof was upon the defendant to show the truth of the publication in mitigation of damages was practically correct, if not scientifically accurate. In Hereford v. Combs, 126 Ala. 369, 378, 28 So. 585, it is said that:

"Notwithstanding the truth of the words spoken may be given in evidence under the general issue by the defendant, the burden of proof is upon him to reasonably satisfy the jury of their truth."

This may be but a dictum, since in that case there was a plea of justification. But the plea of the general issue in fact denies the falsity of the publication as fully as does a special plea of justification, although its effect is limited, and there can be no logical reason for a different rule as to the burden of proof under the two...