Atwater v. Morning News Co.

Decision Date15 April 1896
Citation67 Conn. 504,34 A. 865
PartiesATWATER v. MORNING NEWS CO.
CourtConnecticut Supreme Court

Appeal from superior court, New Haven county; Prentice, Judge.

Action of libel by William J. Atwater against the Morning News Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Talcott H. Russell and Roger S. Baldwin, for appellant.

Charles S. Hamilton and William B. Stoddard, for appellee.

HAMERSLEY, J. The complaint contains four counts, each charging the defendant with the publication of a libel concerning the plaintiff. The publications were made on May 15, 1891, and on the following May 22d, May 25th, and June 23d. The last three counts were added by way of supplemental complaint, alleging that, since the action was commenced, the defendant published concerning the plaintiff other libelous matter, which, "grew out of and was connected with the same libelous matter contained in the original complaint." The defendant's answer admits the publication, and denies the rest of the complaint, alleging that "the defendant published said several articles without any malice in fact against the plaintiff personally, but merely to give what it supposed to be current news, and to make what it supposed to be a just and fair criticism upon the conduct of the plaintiff referred to, in his official capacity as a member of the board of public works." The complaint alleges no special damage, and the answer contains no defense of justification.

Publication being admitted, the questions for the trial court were: (1) Was the matter published per se defamatory? (2) Was it malicious, including the question of privileged communication? And (3) whether privileged or not, has the plaintiff proved malice in fact, under section 1116 of General Statutes?

The last question will require no separate discussion, as it must be disposed of in consideration of the second.

As to the first question, it would hardly be claimed that the publications were not libelous with the meaning attributed to them by the innuendoes, and we think that the publications as recited in the complaint and admitted by the answer are on their face defamatory.

All the substantial errors claimed by the plaintiff relate to the disposition by the course below of the second question: Were the publications privileged? This question, assuming the fact of the publication of defamatory matter, is practically the question of libel or no libel; hence it is necessarily involved in the general issue, and notice in the pleadings that it will be raised on the trial, while permissible, has never been held to be obligatory although, especially since the adoption of the practice act, such notice is perhaps the better practice. In truth, the fact of a publication being privileged is the main fact on which libel actions tried under the general issue depend; and the modern law of libel has been developed for the most part in cases concerned with the question of privileged communications. It is perhaps unfortunate that the word "privilege" has been used in this connection. In a few instances, considerations of public policy, deemed essential to the administration of government, exempt from liability to civil action the author of libelous utterances. Unless in those cases which the necessities of government take out of the domain of private wrongs, the law does not concede to any person, under any circumstances, the "privilege" of libeling another. Where a citizen is injured by means of a libel, his right to a remedy against the author is guarantied by the constitution, and cannot be taken away even by legislation. Hotchkiss v. Porter, 30 Conn. 421. The right to an action of libel (where special damages are not sought) depends on a publication of matter affecting the reputation of the plaintiff of that character which is defined by law as necessarily causing actionable damage, made by the defendant in violation of a legal duty. The two main elements are injury to the plaintiff and a wrongful act; i. e. an act in violation of a legal duty by the defendant. The first element involves the definition of a defamatory publication; the second, of the duties imposed by law in respect to such publications. These duties are well settled. They are restrictive and permissive,—the general duty which binds every one to absolutely refrain from the publication of defamatory matter unless he possesses evidences of its truth so certain that he can successfully establish his charge in a court of justice; and the special duty to communicate such matter in good faith upon any subject in which one has an interest, or has, or honestly believes he has, a duty (including certain moral and social duties) to a person having a corresponding interest or duty. An act by which another must be injured, intentionally done, in violation of legal duty, is, in law, maliciously done; and so it is held that the wrongful act of the defendant essential to actionable libel must be malicious, and this essential element of libel is briefly expressed in the rule, "Malice is the gist of the action of libel." Where the action is contested in respect to a defamatory publication, as a violation of the general duty only, malice is proved by a legal presumption established by the fact of publication. Where it is contested in respect to a violation of the special duty, malice must be proved by other evidence. But in either case the malice must be proved by the plaintiff, and in either case the malice consists in an intentional defamatory publication, in violation of a legal duty. The claim of "privileged communications," therefore, is not a special defense, but a practical traverse of the plaintiff's allegations, and must be established by evidence overcoming the proof the plaintiff is obliged to furnish, in every case, of the defendant's intention to mar his reputation in violation of legal duty.

The defendant claims that the communications were privileged, and that the trial court erred in finding and ruling otherwise. The special facts found by the court are: The plaintiff was one of six members of the board of public works of the city of New Haven. The action of a majority of the board, of which the plaintiff was one, was, in certain of the public prints and elsewhere, called in question, and much discussed. The defendant conducted a daily newspaper, published in New Haven. The libel charged in each count was contained in extracts from the issue of this newspaper on the date alleged. The main defamatory matter, common to all the counts, related to the conduct of the plaintiff as such public officer. The publications were made without sufficient occasion or excuse, recklessly, and in disregard of the plaintiff's rights and the consequences which might result to him therefrom, and for the purpose of injuring him in character and reputation. The court found the publications to be malicious, and rendered a general judgment for the plaintiff.

While the gist of the action of libel is malice, and malice is a fact to be found by the jury, it is, nevertheless, a fact which may involve a question of law. Where, as in the present case, the malice depends upon the contested existence both of legal duty and intention, the definition of "duty" is for the court; the finding of intention is for the jury. In other words, where the alleged libel is claimed to be a privileged communication, the court must decide whether, upon the admitted circumstances, the law recognizes a duty to make the communication; and the jury must find, upon the evidence, whether the communication was in fact made in good faith, with intent to perform that duty. The legal character of the occasion is determined by the ruling of the court; the use of the occasion, by the finding of the jury. Haight v. Cornell, 15 Conn. 82; Brow v. Hathaway, 13 Allen, 239. But the ruling of the court cannot control the ultimate fact at issue, which depends upon good faith and intention that may be decisive of malice, notwithstanding the ruling that the occasion is privileged; and so, as a general proposition, it may be said that the question of whether a publication is a privileged communication is one for the jury. Klinck v. Colby, 46 N. Y. 431.

We assume, as claimed by the defendant, that the trial court has found that some portion of the defamatory matter specified in each count is not a privileged communication. Of course, if any specification of libel is supported by the law and the facts found, the judgment on that count is good. Hill house v. Dunning, 6 Conn. 407. Examining, first, the second count, the libel charged is as follows:

The thunderbolt fell yesterday, And what a thunderbolt!

Commissioner Atwater, the immaculate "Jerry," bringing suit for libel!

And all because THE NEWS had up and told the truth about Jerry and his associates of the potent "Big Four."

His name should be changed to "Jerry Bluff."

Some interesting chapters of Commissioner Atwater's business life are embalmed in the records of the law courts. A bond has taken the place of "Jerry Bluff's" attachment on the News corner lot, and it is again free and clear of all incumbrances. Try again, "Jerry."

Does W. Jere. Atwater represent himself or the "Big Four" in the threatened Court proceedings? It is strong public opinion that the whole Four need justification.

The first four paragraphs were a portion of a news article containing an account of the commencement of this suit, the complaint in which then contained only the first count; the article giving at length the writ and complaint. The remaining paragraphs constituted editorial paragraphs by themselves. The defamatory nature of this publication is too clear to call for discussion. It consists of an item of news,—i. e. the commencement of a civil action,—and comments on the plaintiff and his action. The occasion of the publication was the institution of a private suit. The claim that the official acts of a public officer...

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