Fenstermaker v. Tribune Pub. Co.

• Citation: 13 Utah 532,45 P. 1097
• Decision Date: 06 July 1896
• Docket Number: 579
• Court: Supreme Court of Utah
• Parties: AMOS FENSTERMAKER, APPELLANT, v. THE TRIBUNE PUBLISHING COMPANY, RESPONDENT

45 P. 1097

13 Utah 532

AMOS FENSTERMAKER, APPELLANT, v. THE TRIBUNE PUBLISHING COMPANY, RESPONDENT

No. 579

Supreme Court of Utah

July 6, 1896

This was an action for libel, tried before Judge Bartch in the Third judicial district court of the territory. The decision was reversed in the territorial supreme court and a rehearing granted by the supreme court of the state.

The case is reported in 12 Utah 439 and in 43 P. 112. No brief was filed at the rehearing, but briefs are given in full in the former report of the case.

On rehearing reversed.

Reversed and remanded.

John M Zane and James A. Williams, for appellant.

O. W Powers, D. N. Straup and Ogden Hiles, for respondent.

STREET District Judge. HIGGINS, District Judge, concurs.

OPINION

STREET, District Judge

This case was originally heard in the supreme court of the territory of Utah on the 5th day of June, 1895; Chief Justice Merritt and Justices King and Smith sitting at the hearing. Pending the decision of the court Justice Smith died. The original opinion of the court was written by Justice King, and delivered and filed on the 21st day of December, 1895. Chief Justice Merritt did not concur in the opinion, except in so far as to concur in the judgment of reversal. The opinion is reported in 12 Utah 439, and is referred to as stating the pleadings and certain facts explanatory of this opinion. A motion for a rehearing was duly made, on behalf of the respondent, to the supreme court of the state of Utah; the territorial form of government having in the meantime merged into the present government, under the constitution of the state of Utah. When the motion came up for rehearing, it was found that all of the judges of the supreme court were disqualified to sit in the cause; Chief Justice Zane and Justice Miner having been of counsel in the case, and Justice Bartch having tried the cause in the lower court. It is provided by the constitution of Utah (article 8, § 2) that, "if a justice of the supreme court shall be disqualified from sitting in a cause before said court, the remaining judges shall call a district judge to sit with them on the hearing of such cause." The historically unique position of this case, in presenting disqualifications of all the judges of the supreme court, becoming known to the first legislature of the state of Utah, out of abundance of caution it inserted in the act providing for the organization of the supreme court a part of a section intended to meet the emergency presented in this case, the clause being as follows: "If all the justices are disqualified, the court shall call in three district judges to hear the cause." As adding to the historical interest of the case--to the profession, at least--is the fact that Judge Ogden Hiles, one of the three district judges for the Third judicial district, was also disqualified to act, from having been of counsel in the case. In consequence of this situation of affairs, the supreme court called upon Judge E. V. Higgins, of the Fifth judicial district, and Judge Le Grand Young and the writer of this opinion, judges of the third judicial district, to act upon the motion for a rehearing, and in subsequent proceedings in the cause in the supreme court. Upon consideration of the fact that one point raised by the record, and strenuously insisted upon in the brief for respondent on the motion for rehearing, was not passed upon by the learned judge who delivered the original opinion, and because the original opinion was not concurred in by two judges as to the particular question discussed and decided, the court composed as stated was of the opinion that a rehearing should be granted and the law of the case defined; and an order was made to that effect, and a rehearing had.

Counsel for the respondent upon the rehearing insisted that the article alleged by plaintiff to be libelous, and fully set forth in the former opinion, is of the class termed "privileged publications," and therefore no action for its publication can be maintained, in the absence of an allegation of malice in fact, and proof thereof. This point was not passed upon in the former opinion, and if tenable, it would be necessary to consider the nature and extent of the privilege, whether absolute or qualified, and the effect upon damages, whether to bar recovery entirely or otherwise. But it is unnecessary to decide these questions, for the reason that an extended examination of standard text-books and of the cases on this branch of the law of privileged communications fails to reveal any authority for extending the doctrine relied upon to a case where the alleged libel is based upon charges against a private individual acting in a private capacity, or, as in this case, a family acting in private matters, notwithstanding that the public might have much interest in the publication as a matter of news. The publication in a newspaper of false and defamatory matter is not privileged because made in good faith as a matter of news. Newell, Defam. p. 395 and cases cited; Wilson v. Fitch, 41 Cal. 363; McAllister v. Press Co., 76 Mich. 338, 43 N.W. 431, and note to same case in 15 Am. St. Rep. p. 345; White v. Nicholls, 44 U.S. 266, 3 HOW 266, 11 L.Ed. 591; 13 Am. & Eng. Enc. Law, p. 316. The newspaper article in question in this action is not a privileged communication.

Respecting the other principal points raised by the briefs and arguments of counsel for the respective parties, we adopt and modify the original opinion in the following particulars:

1. With respect to the point raised by the respondent, that plaintiff cannot secure a reversal, for the reason that the complaint, after amendment, did not state facts sufficient to constitute a cause of action, and the plaintiff failed to make out a case because the article sued on did not refer to an individual, but to a class, the former opinion reaches the true conclusion. The allegations of the complaint that the plaintiff is the head of the "Fenstermaker family," residing on "Box Elder ranch," and that the publication was made of and concerning the plaintiff, together with the article itself, and allegations of its falsity, stated a cause of action under section 3246 of the Compiled Laws, and under the rule enunciated in the former opinion, that the publication concerned such a class that any member thereof could maintain an action for defamation of himself personally, because of the alleged libel applying to each individual member through the class, by the use without discrimination of the collective appellation. One who publishes matter about a family in its collective capacity assumes the risk of its being libelous as to any member thereof. Any other rule would violate elementary principles of jurisprudence, in suffering a wrong to exist without a remedy, and would permit indiscriminating reference to the deeds of a single member of the family as the deeds of all collectively, while the odium should rest legally and morally only upon the member of the family who is guilty.

2. We coincide with the original opinion in respect to the plea of justification in the answer, and adopt the conclusion that, under all the circumstances, it must be held that the answer contained a plea of justification.

3. We further agree with the former opinion that while the terms of section 3247, Comp. Laws 1888, permits a defendant to combine a defense alleging the truth of the matter charged as defamatory with a plea in mitigation to reduce the amount of damages, and also to offer proof upon both pleas, yet, in order to be entitled to...