Fitzpatrick v. The Daily States Publishing Company, Limited

• Decision Date: 01 June 1896
• Docket Number: 12,115
• Citation: 20 So. 173,48 La.Ann. 1116
• Court: Louisiana Supreme Court
• Parties: JOHN FITZPATRICK v. THE DAILY STATES PUBLISHING COMPANY, LIMITED, ET AL

20 So. 173

48 La.Ann. 1116

JOHN FITZPATRICK v. THE DAILY STATES PUBLISHING COMPANY, LIMITED, ET AL

No. 12,115

Supreme Court of Louisiana

June 1, 1896

Argued May 4, 1896

APPEAL from the Civil District Court for the Parish of Orleans Rightor, J.

E. A O'Sullivan and George W. Flynn, for Plaintiff, Appellee.

Gus A Breaux, for Defendant, Appellant.

OPINION

WATKINS J.

Plaintiff demands of the defendants in solido one hundred thousand dollars as damages for a libel upon him personally, and as Mayor of the city of New Orleans, charging the libel to consist of an editorial article which appeared in the issue of the Daily States of July 23, 1894, a newspaper owned and operated by the defendant company, and which was chiefly edited at the time by its co-defendant, H. J. Hearsey.

He alleges that said newspaper article was scurrilous, malicious, defamatory and libelous, and that in writing and publishing said article said defendants were actuated by malice and a desire to injure his reputation and character, as well as to deprive him of the esteem of the public, and to exclude him from intercourse with men of honesty, and to render him odious and detestable. That not only was that article inspired by hatred and malice, but it was absolutely false, and wholly without foundation in point of fact.

The answer of the defendants is a general denial, coupled with a special defence, the substance of which is as follows, to-wit:

That the article entitled "A Den of Thieves," which is alleged to have been libelous, was intended to and called the attention of the public to the corruption which it was the general belief then existed in the administration of the city government, and with a view to its investigation; that as a public journalist it was its duty, as well as its right, to comment upon all matters of public interest, and, as far as possible, direct attention to such facts, as it could ascertain, and that it did so in perfect good faith, and, in so doing, stated only what it believed to be true after careful investigation and inquiry; that respondents deny that they were actuated by malice, but they, on the contrary, aver that the sole motive and purpose of the publication was "to secure the advancement of the public interests, without the slightest care for individuals."

That respondents asserted in the aforesaid article that the statements were made chiefly upon the representations which a certain designated contractor with the city had made to a contemporary newspaper of the city, and that same were published in the regular course of business, as being of great public interest, and without malice, or personal feeling.

That it is the duty of an American newspaper to keep the public advised of all matters of general interest, and to aid in securing good and faithful government; and that they had the right to publish and comment upon all the events and facts surrounding the administration of the city government in good faith and without malice, and are not therefor answerable in damages to any person or official.

Summarized, defendants' answer is an averment that the publication charged to have been libelous was directed against corruption, which was at the time generally supposed to exist in the administration of the city government, and that the disclosures were made with a view to their investigation, as it was the duty of a public journalist to have done. That, in so doing, they acted in good faith and stated only what they believed to be true after careful inquiry and investigation; and that same was done without malice, and solely for the purpose of securing the advancement of the public interest "without the slightest care for individuals." That in making said statement defendants relied upon the statements which a city contractor had contemporaneously made to another daily newspaper of the city, and which they accepted and believed.

In addition, the defendants rest their defence upon the liberty and freedom of the press.

The case was tried and decided by the judge without the intervention of a jury; and from a judgment in favor of the plaintiff for the sum of five hundred dollars, the defendants have appealed; and the plaintiff answered the appeal and prayed for the allowance to be increased to the full amount claimed.

The determination of this cause depends exclusively upon a proper construction to be placed upon the alleged libelous article, as interpreted by the managing editor of the Daily States, who was the only witness introduced on the part of plaintiff -- indeed the only witness, of consequence, who testified in the cause.

In the course of his interrogation, many exceptions were taken and bills of exception reserved pro et con; but the tenor of the judge's rulings thereon was, that the witnesses' statements were admissible for the purpose of mitigating damages and not to prove justification, as no plea of justification had been made in defendant's answer. We are of the opinion that the ruling was sound and conservative, and in strict conformity to the pleadings.

For it appears from the transcript that during the progress of the trial an effort was made on behalf of the defendants to prove the truth of the charges laid in the alleged libelous article; but objection having been raised to its admissibility, on the ground that no justification was pleaded in the answer, same was sustained and the testimony rejected; but while thus ruling the judge offered the defendants an opportunity to amend their answer instanter and make the plea -- without objection being made by the plaintiff -- but the offer was declined.

The article complained of as libelous we have extracted from the paper filed in evidence, and reproduce same in its entirety, as follows, viz.:

"THE DEN OF THIEVES.

"Three members of the City Council have been indicted by the grand jury, and charges of equally as disgraceful a nature have been made against others and also against the Mayor. Under the peculiar laws of Louisiana the Criminal District Judge has felt bound to quash these indictments, and there is a general feeling of disgust throughout the community at the possibility, if not the probability, of these rascals escaping punishment for their crimes.

"It is true that an indictment is not a verdict of guilty; but the evidence on which these indictments were found is common property, and on that, together with corroborative circumstantial testimony, these men have been found guilty by the people and in the eyes of the people they are guilty just as though they had been pronounced so by a jury and sentenced to the penitentiary by the judge. They may escape the penalty of the law, but they can not escape the condemnation and contempt of their fellow-citizens. The brand, not of Cain, but of the blackmailer and the sneak thief, is on their brows, so indelibly fixed that it will burn there in lurid letters until the coffin and the grave shall close over them forever, and their names and their acts of infamy have passed out of the memories of men. Go where they may the cry will follow them, 'Behold the bribe-takers.'

"It is distressing to think that, while the judge regards the law under which these rascals were indicted as repealed, the District Attorney and his assistant believe that the act which the judge holds repealed the law under which the indictments were found is utterly insufficient to meet the case, and hence, with a Council of blackmailers and bribe-takers on our hands, there is no law in Louisiana under which they or any one can be brought to justice.

"And while this is the situation as to the Councilmen already indicted, a new and wider view of corruption has been opened before us. We have already printed the statement of Mr. Orlopp, the contractor for building the new court house and jail, showing how he was fleeced by the gang and the friends of the gang.

"It has been shown by that statement that Mayor Fitzpatrick, after he came into office, pretended to discover that the bond which the previous administration had found was entirely satisfactory was defective, and forced the contractor to make a new and local bond, composed of the Mayor's friends, and to pay these bondsmen five thousand dollars for their names.

"It has also been shown that the firm of Manion & Co., of which the Mayor, or his wife, which is the same thing, is the chief partner, endeavored to force from the contractor twenty-five thousand dollars for a job which another contractor had offered to do for ten thousand five hundred dollars, and that, finally, in fear of the power of the Mayor, and with a full knowledge that the Mayor would exercise his power, the contractor did give the Mayor's firm fifteen thousand dollars, or about five thousand dollars more than the lowest bid for the job, and thus gave up five thousand dollars of his legitimate profits under the Mayor's command to 'stand and deliver.'

"It has also been shown that City Engineer Brown took from the contractor the work of paving and gave it to his chum, and, no doubt, partner in jobbery, Fritz Jahncke, at a higher price, thus swindling the treasury in the interest of a favored individual.

"It has also been shown that at the dictation and under the threats of Brown the contractor was forced to give the glass work and interior woodwork to Mr. Henry Wellman's company, in which Brown is a stockholder, at a larger price than other parties had bid for it, and that inferior glass was put in and inferior woodwork done; that Brown accepted this inferior material and work and the contractor was thus swindled out of a part of his profits and the public swindled in the quality of the work.

"All these facts have been shown and no serious denial has been made by the...