Donahoe v. The Star Publishing Co.

• Citation: 53 A. 1028,19 Del. 545
• Court: Superior Court of Delaware
• Decision Date: 06 June 1902
• Parties: JOHN P. DONAHOE v. THE STAR PUBLISHING COMPANY, a corporation of the State of Delaware

53 A. 1028

19 Del. 545

JOHN P. DONAHOE v. THE STAR PUBLISHING COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

June 6, 1902

Superior Court, New Castle County, November Term, 1902.

ACTION ON THE CASE, LIBEL (No. 54, November Term, 1900).

Demurrer to pleas (argued February 27, 1902; opinion delivered June 6 1902).

Demurrer sustained.

William S. Hilles for plaintiff.

J Harvey Whiteman and Victor B. Woolley for defendant.

LORE C. J., and SPRUANCE and BOYCE, J. J., sitting.

OPINION

BOYCE, J.

This is an action for libel. The plaintiffs declaration with innuendoes contains three counts. We do not deem it necessary to set them forth. The defendant has pleaded the general issue and five special pleas to each of said counts. The material averments contained in said special pleas are in substance as follows, to wit:

"1. That the plaintiff was at the time of the publication of the supposed libel a candidate for the nomination for the office of Representative in the General Assembly of the State of Delaware, and that the said statements made in the said supposed libel were, at and before the printing and publishing thereof substantially true, and the same were published in good faith for public information, and with no malicious or mischievous motives.

"2. That at the time and before the printing and publishing of the said supposed libel the said plaintiff was a candidate for nomination for the office of Representative in the General Assembly of the State of Delaware, and that the defendant had probable cause to believe, and did believe, that the statements contained therein were true, and that the said defendant was engaged in printing and publishing the newspaper in said declaration mentioned, which said newspaper circulated among the voters of said representative district, and was in duty bound to publish for the information of the voters of the said representative district what was believed, in good faith, to be true relating to the public character and conduct of the said plaintiff, and that the same were published in good faith in the said newspaper for circulation among the voters of the representative district wherein the said plaintiff was such candidate, and with no malicious or mischievous motives."

3. The third plea is stated substantially as is the second--the variance and principal averment therein being in effect that the matters in the supposed libel were of common report, and were printed and published without malice.

"4. That the statements made in the said supposed libel at and before the printing and publishing thereof were true.

"5. That the statements made in the supposed libel at etc., were true, and the same were published in good faith for public information and with no malicious or mischievous motives."

The plaintiff has demurred to each of the said special pleas, assigning numerous causes therefor. We shall consider only some of the more particular objections, and those in a general rather than in a specific manner.

But before proceeding to do so it may be well to advert to some changes which have been effected in the common law pleading in civil actions since we acquired our national independence, in order that we may ascertain what were the established rules of pleading in relation to actions for slander and libel at that time; for the rules of evidence in such actions are confused because of a great contrariety of rules in the books respecting matters of pleading in such actions, by reason of many changes in the rules of common law pleading which have been effected by legislation and the rules adopted thereunder, both in this country and England

In no other State in the American Union has the common law system of pleading, as it had been developed and existed in England at the time of the separation of the American Colonies therefrom, been more strictly adhered to than here in Delaware. Important changes were effected in pleading generally by the pleading rules of Hilary Term (1834), promulgated by the judges at Westminister, pursuant to authority given them by Acts 3 and 4 Will. IV., C. 42, and even more radical changes were effected by procedure acts of Parliament, enacted thereafter. And in many of the States important changes have likewise been effected in the rules of pleading which prevailed at common law.

It is essential, therefore, that we disregard any changes in pleading in actions for slander and libel which these procedure act and rules may have effected, confining our inquiry to the system of common law pleading as it existed at the time of our independence, except in so far as it may have been changed or modified by constitutional or statutory provisions of this State.

The common law rule confined the defendant to a single plea consisting of a single matter of defense. But the statute of 4 Anne (1706) C., 16, Sec. 4, which provides that "it shall be lawful for the defendant, or tenant, in any action or suit, or for any plaintiff in replevin, in any court of record, with leave of the Court, to plead as many several matters thereto as he shall think necessary for his defense", allows the defendant to plead several distinct matters of defense to the whole or one and the same part of the plaintiff's demand. Yet under this statute the defendant may not allege more than one ground of defense in one plea. Each plea must be single, as by the rule of the common law. Gould's Plead., Chap. 8, Part 1, Secs. 18 and 19. Before that enactment, and at least prior to the case of Underwood vs. Parks, 2 Strange 1200, (1702), the truth, in mitigation of damages, might be given in evidence under the general issue, on the ground that an essential ingredient--the falsity of the imputation--was wanting; but it was said in that case that "at a meeting of all the judges upon a case that arose in the Common Pleas, a large majority of them had determined not to allow it for the future, but that it should be pleaded, whereby the plaintiff might be prepared to defend himself, as well as to prove the speaking of the words. That this was now a general rule amongst them all, which no judge would think himself at liberty to depart from; and that it extended to all sorts of words, and not barely to such as imported a charge of felony." Thus it became a settled rule that the truth of the imputation should be pleaded specially--such a defense being regarded by some as collateral to the cause of action, while others hold that it goes to the essence of the wrong--the falsity of the imputation. It has been said that this rule was established from motives of public policy and convenience rather than from strict rules of pleading. After it had become settled that the truth should be specially pleaded, it is not altogether clear whether in the case of an action for libel such a plea was still regarded as anything more than a matter of mitigation. In Rex vs. Roberts, 8 Geo. 11, (1735), it was said by Lord Hardwicke, "It is said that, if an action was brought, the fact, if true, might be justified; but I think that is a mistake. Such a thing was never thought of in the case of Harman vs. Delany, (2 Stange 898). I never heard such a justification in an action for libel even hinted at; the law is too careful in discountenancing such practices; all the favor that I know truth affords in such a case is, that it may be shown in mitigation of damages." Mr. Starkie in his treatise on Slander at page 233, (2 Ed.), referring to this and another case cited by him, says the dicta of the learned judges cannot be but understood as spoken with reference to the criminal proceeding before them, and therefore as no authories in respect of an action; and he cites Holt, C. J., and others, to the effect that a man may justify in an action for words, or for a libel. In notes by Wendall on the same page of Starkie, he says: "In the time of Lord Hardwicke it was denied, not only by him but by others, that the truth could be given in evidence in bar of a recovery." And again on page 235 of the same treatise, he says: "Until 1792, when the Judges of England gave their opinion in Parliament upon questions put to them on the Libel Bill, the only authorities for the position that a defendant might plead the truth of a libel in justification were the dicta of Hobart, C. J., in Lake vs. Hatton, (Hob. R. 235), and Holt, C. J., in an anonymous case, (11 Mod. 99), and in the acquiescence of the bar and the Court in J'Anson vs. Stewart, 1 T. R., 748."

Whether the truth was thereafter regarded as a plea in bar of an action for libel is not now, perhaps, for the purpose of this case, important. It had unquestionably become a distinct plea, permissible with the plea of not guilty, and it was required to be specially pleaded. The plea itself and the requirement that it should be so pleaded is manifestly recognized in Sec. 2, Chap. 449, Vol. 11, Laws of Delaware, (Revised Code, (1893), 800), which provides "That in actions for damages for the writing or publishing of a libel, when the truth is pleaded and given in evidence, if it be found that the same was written or published properly for public information, and with no malicious or mischievous motives, the jury may find for the defendant, or defendants." We may reasonably conclude from what we have shown to be the state of the law upon the question whether the plea of the truth was a plea in bar at the time of the passage of said act, and from the language employed in the act itself, that such plea had not theretofore been regarded as a plea in bar. For the truth when pleaded and given in evidence is not a defense in bar of the action. The statute requires the further proof that the libel was written or published properly for public...