Fenstermaker v. Tribune Pub. Co.

• Decision Date: 21 December 1895
• Docket Number: 579
• Citation: 12 Utah 439,43 P. 112
• Court: Utah Supreme Court
• Parties: AMOS FENSTERMAKER, APPELLANT, v. THE TRIBUNE PUBLISHING COMPANY, RESPONDENT. [1]

43 P. 112

12 Utah 439

AMOS FENSTERMAKER, APPELLANT, v. THE TRIBUNE PUBLISHING COMPANY, RESPONDENT. ^[1]

No. 579

Supreme Court of Utah

December 21, 1895

APPEAL from the district court of the Third Judicial District. Hon George W. Bartch, Judge.

Action for libel by Amos Fenstermaker against the Tribune Publishing Company. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

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

The complaint averred that plaintiff was one of the persons defamed, and alleged the extraneous circumstances, showing that the plaintiff was referred to, and averred that the publication was concerning the plaintiff. Not one of these circumstances or allegations was denied. No issue of fact thereon arose, but the following cases show that each one of the Fenstermaker family residing at Box Elder ranch had his or her action for libel: 4 Coke's Rep. 17 b; Smart v Blanchard, 42 N.H. 137; Ryckman v. Delevan, 25 Wend. 186; Byer v. Fireman's Journal Co., 11 Daly (N.Y.), 257; Gidney v. Blakes, 11 Johns. (N.Y.) 54.

Certain other errors are predicated on the defendant's pleading. His answer averred the truth of the charge generally, and proceeded to aver certain facts, which did not amount to a justification, and averred that they were pleaded both in justification and mitigation.

The law as to a justification is that it must fully meet the charge aver the facts that show the charge to be true, and set them forth in a traversible form, and defendant must justify the words in the sense imputed to them by the innuendo. Newell on Defamation, etc., p. 653 et seq., 796 et seq.

In this case the respondent seeks to claim that while the facts stated do not make a justification, still the averment in the answer, generally, that the charge was true, is sufficient. But that is not the law. Tilson v. Clarke, 45 Barb. (N.Y.) 178; Downey v. Dillon, 52 Ind. 442; Bissell v. Cornell, 24 Wend. 354; Shepherd v. Merrill, 13 Johns. 475; Sumnam v. Brewin, 52 Ind. 140; Thrall v. Smiley, 9 Cal. 529; especially, Van Ness v. Hamilton, 19 Johns. (N.Y.) 349.

Now, in this case, it was necessary to make the plea of justification good, for the defendant to allege in his plea facts showing that the charge was true, so as to give plaintiff notice of them and to put those facts in a traversible form. No attempt was made to do this, but defendant claims that the charge being specific, the justification might be general.

Evidence which is admissible in justification is not admissible in mitigation, and there being no proper plea of justification, all the evidence as to the finding of the child on the desert and her condition was not evidence in mitigation, because if good for any purpose it tended to prove the truth of the charge. Newell on Def. and Slander, p. 882, p. 897.

Then comes in the principle that facts in mitigation must be pleaded in order to be proven.

Our statute says, 2 Comp. Laws, p. 251, § 3247, that defendant may allege any mitigating circumstances and give them in evidence. While this statute abrogates the old rule that mitigation and justification cannot be tried together, yet it introduces the new element that mitigating circumstances must be pleaded, and are no longer admissible under the general issue, though it is proper to say the general issue was not pleaded in this action. This is the holding of the courts upon this statute. Reify v. Timm, 53 Wis. 63, 10 N.W. 5; Battell v. Wallace, 30 F. 229; Willover v. Hill, 72 N.Y. 36.

Now, as to the second point, the libel did not purport to be published upon the authority of another, and hence the fact that it was so published was wholly inadmissible. Odgers on Libel and Slander, p. 302, and many authorities cited; Newell on Def., etc., p. 894, and many authorities cited; Marker v. Dunn, 68 Iowa 720; Talbot v. Clark, 2 Moo. and Rob, 312.

Therefore on either ground, these communications to the defendant, not having been pleaded and not being referred to in the article, were inadmissible in evidence.

Other errors are assigned upon the admission of

HEARSAY EVIDENCE.

The sixth error, the seventh error, the eighth error, the twelfth error, were all reports of conversations between third parties. The sixth and eighth errors are concerned with the question of mitigation, the remaining errors just specified are reports of what the child said. They have been already shown to be not admissible in mitigation because the statement did not purport to be made on their authority, and because they were not shown to have been communicated to the defendant. Hatfield v. Lasher, 57 How. Pr. 258; 17 Hun 23; Morey v. Morning Jour. Ass'n, 1 N.Y.S. 475.

It needs no argument to show that these statements were the baldest hearsay, and were therefore incompetent, irrelevant and immaterial. Now, even conceding the defendant had pleaded a justification, these statements were not competent to prove the truth of the charge. The test is: If plaintiff was being prosecuted for turning out the child, could the statements of the child made to third parties, out of the plaintiff's presence, be given in evidence? Most assuredly not. No authority is necessary, but we cite one to show how ancient is the principle that has been violated. On the trial of Braddon and Speke, 9 How. St. Tr., Col. 1179 (1684), evidence was attempted to be introduced of what another woman had said. L. C. J., said: "Why, if that woman were here herself, if she did say it and would not swear it, we could not hear her. How, then, can her saying be an evidence before us? I wonder to hear any man that wears a gown to make a doubt of it. Why, gentlemen, what are we doing all this time? Do you think we sit here for nothing? Is not this the first time that a report was given as evidence in Westminster Hall?"

It is not necessary to argue that such statements are not part of the res gestae, because they are confessedly narrations of past events, and are no part of the driving out of the child.

The next errors assigned are in regard to the evidence admitted of

FAMILY REPUTATION.

It should be remembered that plaintiff was suing for damages to his own reputation, and defendant had admitted the libel was published of the plaintiff; yet the defendant, we presume on the theory that he was suing for damages to the reputation, not of himself but of his whole family connection, was permitted to offer evidence that the reputation of the Fenstermaker family was bad. The witnesses could not say who composed that family, nor who were residing on the ranch at the time; yet the court permitted plaintiff in rebuttal to prove that plaintiff's reputation was good. Thus the learned court got upon both sides of the question. If it was right first, it was wrong the second time. The court even went further, and permitted evidence to be given that the ranch was a rendezvous of horsethieves, and as to the reputation of Willard Carter.

This must be error. Can it be possible that a newspaper can say all the members of the Fenstermaker family have committed an inhuman act, then admit that the libel was published of one certain member of that family, and when it is shown that the libel holds that particular one up to public hatred and scorn, and he sues for damages to his character, he can be told that, though his own character is spotless, he cannot recover because the character of some other members of his family is such that it has rendered the reputation of his family bad? How can a family have a reputation? Can one or two black sheep render a family's reputation worthless? There is hardly any large family that has not one or two erring members. This idea reduces law to an absurdity. If the character of one member of a family has continued good, while others have disgraced it, it simply shows that that one must be blameless. No authority can be cited on such a point, because this is, no doubt, the first time such an extraordinary proposition has been endorsed by any court.

The court continued its error where it charged that if any member of the plaintiff's family over whom he had control compelled the child to leave the house and wander on the desert, the charge was justified. In other words, plaintiff is on trial for a crime, and all you have to prove is that some member of his family committed the crime, provided plaintiff had control as husband or father, or head of the family. This is a new and extraordinary species of vicarious crime, a new and startling extension of the theory that what a wife does in her husband's presence, is the act of her husband, to the whole family connection. The instruction does not require that plaintiff should know of the act or be aware of it. He might be asleep, he might be away from home, yet he is responsible for all his family's acts.

ERRORS ON CROSS-EXAMINATION.

Caroline Fenstermaker, wife of the plaintiff, was asked on cross-examination as to how she treated other children she had taken to rear. This was objected to on the ground that it was not proper cross-examination, and irrelevant and immaterial. It made no difference to the issue on trial, how she treated children. But taking even the court's remarkable theory, the question would be how she treated this particular child. It is elementary that one cannot prove a person guilty of one charge in order to show her guilty of another. It was not permissible to prove that she mistreated Ethel Crockett, in order to show that she mistreated Caroline Hansen. As to her general reputation for mistreating children, even that, if admissible, could not be proven by specific acts. This is elementary. Bourreson v. Evening Journal Co., 6 Am. St. Rep. 330, and cases in note. It is apparent that this is not cross-examination, yet the court...