Chaffin v. Lynch

• Decision Date: 14 April 1887
• Citation: 1 S.E. 803,83 Va. 106
• Parties: Chaffin v. Lynch.
• Court: Virginia Supreme Court

1 S.E. 803

(83 Va. 106)

Chaffin

v.Lynch.

Supreme Court of Appeals of Virginia.

April 14, 1887

1. Libel and Slander—Libel—Virginia "Anti-Dueling Act. "

Code Va. 1873, c. 145, § 2, which provides that "all words which, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace, shall be actionable, " applies to written as well as spoken words.

2. Same—Pleading—Causes of Action—Joinder.

It is not proper to blend into one count a common-law cause of action and a cause of action under the statute. But. although a publication be libelous at common law, yet, if it contain insulting words, it may be declared on under the statute; and the declaration will be good if it shows, by proper averments, that the words are within the statute.

3. Same—Malice.

Malice is the gist of the action under the statute, as at common law.

4. Same—Privilege—Instruction.

In an action to recover damages for a libel under the statute, it is error to withdraw from the jury the question whether the defendant was privileged in publishing the alleged libel for the purpose of protecting his business, and answering an attack made upon him in a newspaper, and instruct them to consider the defendant's good faith, and desire to protect his business only, in assessing the plaintiff's damages.¹

5. Same—Province of Jury.

Defendant published a statement in a newspaper that plaintiff had attempted to decoy away his clients and customers. The plaintiff published a denial in the same newspaper, and characterized the defendant's statement as "a contemptible, cowardly, and malicious lie." Defendant replied by publishing a card in which he referred to the plaintiff's "known character as a liar, " and that any person who was "scoundrel enough" to have acted as plaintiff had "would be unprincipled enough to deny it when charged with it." Held, that the occasion of defendant's reply was privileged, and that it ought to have been left to the jury to say whether he abused his privilege, and had acted with malice, and not honestly, and in the protection of his own interest.

Error to circuit court, Eichmond city.

Guy & Gilliam, Jackson Guy, and John Lyon, for plaintiff in error.

Edgar Allan and T. G. Jackson, for defendant in error.

Lewis, P. This was an action in the circuit court of the city of Richmond for the publication of certain words which were alleged to be insulting and tending to violence and breach of the peace. The action was brought under the statute commonly known as the "Anti-Dueling Act, " which, as amended, enacts as follows: "All words which, from their usual construction and common acceptation, are construed as insults, and tend to violence and breach of the peace, shall be actionable. No demurrer shall preclude a jury from passing thereon." Code 1873, c. 145, § 2. The controversy arose in this way: On the ninth of March, 1884, there appeared in the Daily Dispatch, a newspaper published in this city, the following communication:

"a false rumor about e. b. chaffin & co., Real-estate agents, Re-tiring from business.

"Richmond, Va., March 6, 1884.

"This is to certify that I am from Hillsdale county, Mich.; that I was a correspondent of R. B. Chaffin & Co., and visited Richmond, Va., on Tuesday last, and was met at the railroad depot by a man by the name of Lynch, who represented that he was representing H. L. Staples & Co. I told him I wanted to see R. B. Chaffin & Co. He said that Staples had been a partner, and created the impression upon me that R. B. Chaffin & Co. were out of the real-estate business, and thus prevented my going to see said Chaffin & Co. until to-day, when a clerk of said Chaffin informed me they were in the business, and invited me to visit their office. William Harper."

"Witness: John C. Easley."

"to the public and our friends.

"You will see by reading the above certificate how some agents expect to make sales by having their clerks occupy the position that our negro hackmen occupy at the depots, and by misrepresentations get our customers, and take them to out of the way boarding-houses, thus preventing our correspondents from seeing us. Mr. Harper informed us that he was carried nearly to the extreme end of North Tenth street by a clerk of H. L. Staples & Co., to a boarding-house, and he then applied to the landlord to know what had become of E. B. Chaffin & Co., but the landlord knew of no such agents in the city. We have employed the best legal talent to bring suit at once against H. L. Staples & Co. for damages in the sum of $25,000. We have established an extensive business at great cost, and we wish it distinctly understood that we mean to protect ouselves against all such sharp practice.

"Very respectfully, E. B. Chaffin & Co."

[1 S.E. 305]

To this Lynch replied, through the columns of the same newspaper, on the eleventh of March, 1884, as follows:

"to the public "Richmond, Va., March 10, 1884, 4:10 p. m. "On my return to the city of Eichmond this afternoon from a business trip (having been absent since Saturday last) in the country, my attention has been directed to a communication signed 'R. B. Chaffin & Co., 'and published in Sunday's Dispatch, headed, 'A False Rumor about E. B. Chaffin & Co., Real-Estate Agents, Retiring from Business.' I pronounce the statement contained in the certificate signed, ' William Haeper, ' which is published as a part of said card, that I said anything which could create the impression upon the mind of the said Harper that B. B. Chaffin & Co. were out of the real-estate business, to be utterly and entirely untrue. The intimation in Mr. Chaffin's card that H. L. Staples & Co. have ever required or expected me, as one of their clerks, to occupy the position of a negro hackman, and by misrepresentation get our [their] customers, and take them to out of the way boarding-houses, thus preventing our [their] correspondents from seeing us, [them,] is a contemptible, cowardly, malicious lie. David H. Lynch."

The next day following, Chaffin published in the same newspaper the following:

"a card.

"In reference to a card signed by David H. Lynch, in yesterday's Dispatch, I must say to my friends and the public that, in consequence of said Lynch's act of misrepresentation and his known character as a liar, I could not recognize him in the way a gentleman should be recognized. I expect to have Mr. Harper, of Michigan, the gentleman to whom Lynch represented my firm as out of business, to testify in my suit against H. L. Staples & Co., and thus sustain the charge made therein. Any man who was scoundrel enough to have acted as D. H. Lynch was represented to me to have acted, would be unprincipled enough to deny it when charged with it. I desire the public to know I could not, under any circumstances, notice such a creature as David H. Lynch, whose character is so well known, and did not notice him except as a clerk of H. L. Staples & Co. You are respectfully asked to read the sworn certificates below.

"Respectfully, E. B. Chaffin."

The first of the certificates referred to above is signed and sworn to by W. W. Rowe and J. H. Brown, and is to the effect that they are acquainted with Lynch, and would not believe him on oath in respect to a matter in which he was personally interested; and, further, that they had often observed Lynch at a window opposite the office of E. B. Chaffin & Co., watching the office door of said Chaffin & Co., and. that, when customers of the firm would leave the office, he (Lynch)had been known to overtake them on the street, and endeavor to get them to the office of H. L. Staples & Co. Another certificate is subscribed and sworn to by one W. H. Thompson, and is to the effect that, having seen a great deal of the said D. H. Lynch, he would not believe him on oath.

Thereupon Lynch, who is the defendant in error here, commenced the present action against Chaffin.

The declaration contains a single count, and alleges that the words used by the defendant in charging the plaintiff, in his published card, with acts of misrepresentation, and as having a known character as a liar, and that he could not be recognized by the defendant as a gentleman, and also that the words used in the certificate of Rowe and Brown, to the effect that they would not believe the plaintiff on oath, etc., were false and libelous, and are such words as are usually construed as insults, and tend to violence and breach of the peace. The defendant demurred to the declaration, and also pleaded not guilty, and it was agreed that any evidence admissible under any proper special plea might be introduced under the plea of the general issue. The circuit court overruled the demurrer, and, after the evidence had been introduced, the defendant moved the court to give to the jury certain instructions which were offered by him, but the court refused to instruct the jury as requested by the defendant, and gave two instructions of its own. The jury thereupon found a verdict for the plaintiff for $ 1, 500 damages; and, judgment having been entered on the verdict, the defendant obtained a writ of error and supersedeas.

The first question is whether the declaration is demurrable. It contains but one count, and the demurrer thereto, which the circuit court overruled, was based on two grounds: (1) That the provisions of the statute under which the action was brought, now contained in the second section of chapter 145 of the Code of 1873, apply only to words spoken, and not to words written or printed; and (2) that, if this be not true, then the action is for defamation at common law, and also for insulting words under the statute, which causes of action cannot properly be blended in one count.

The question involved in the first of these propositions was suggested, but not decided, in Moseley v. Moss, 6 Grat. 534, and has not been heretofore adjudicated by this court. We, however, entertain no doubt respecting it. The object of the statute, which was originally...