Folwell v. Providence Journal Co.

• Decision Date: 16 July 1896
• Citation: 19 R.I. 551,37 A. 6
• Parties: FOLWELL v. PROVIDENCE JOURNAL CO.
• Court: Rhode Island Supreme Court

37 A. 6

19 R.I. 551

FOLWELL

v. PROVIDENCE JOURNAL CO.

Supreme Court of Rhode Island.

July 16, 1896.

Action by Frederick S. Folwell against the Providence Journal Company for libel.Plaintiff had judgment, and defendant moves for a new trial.Granted.

This was an action for libel for printing in the defendant's newspaper the following article: "Defrauded His Employer.A Lenox Gardener a Defaulter in the Sum of About $7,000.Pittsfield, Mass., April 5.Considerable of a sensation was caused here and in Lenox by the disclosure to-day that Frederick S. Folwell, until recently head gardener for Anson Phelps Stokes, at the latter's place in Lenox, was a defaulter to the amount of $6,000 of [or] $7,000 at the time of leaving.Folwell was formerly employed by William Russell Allen of this city, but a few years ago secured the position of head gardener for Mr. Stokes, and in time became superintendent of his extensive estate at Lenox.A few months ago Mr. Stokes, who is an enthusiastic botanist, discovered that Folwell's knowledge of the subject was very superficial, and had him discharged.He secured a place with Pierre Lorillard at Newport, and left for that place.Soon after his departure Mr. Stokes began to receive bills for which he had already given checks.An investigation showed that Folwell had incurred many bills in his employer's name, and had appropriated checks given him with which to pay them.It cannot be stated just what the amount of Mr. Stokes' loss is, but the sum named is approximately right When the shortage was discovered, word was sent to Newport with the idea of having Folwell come here and explain, but he was not there, and had not been since leaving Lenox, and no trace of him has been found.His wife and child are in this city."

Samuel R. Honey and Frank F. Nolan, for plaintiff.

Richard B. Comstock and Rathbone Gardner, for defendant.

STINESS, J.The defendant is sued for printing a libel upon the plaintiff in its newspaper, the Providence Daily Journal.The case was tried to a jury, and damages were assessed against the defendant in the sum of $2,300.The defendant set up no justification for the libel, but offered evidence in mitigation of damages simply, and it now petitions for a new trial on the grounds of erroneous rulings and excessive damages it appeared in testimony that the defendant was a member of an association called the "New England Associated Press," an agency to collect items of news, and to send them to its members, publishers of newspapers in New England and other places.At the trial the plaintiff disclaimed express malice on the part of the defendant, but, relying upon the implication of malice from the falsity of the article, and showing no special damage, he rested his claim for damages, chiefly, upon the gross carelessness of the defendant.Several questions were put by the defendant's counsel for the purpose of showing that it acted with reasonable precaution and in good faith, which were ruled out, and the rulings now come before us on exceptions.The first two exceptions now pressed by the defendant relate to the exclusion of testimony to show that there was no investigation of the matter at the time because the source from which the information came had been found by experience to be reliable.The plaintiff replies that evidence of this kind cannot be offered unless the name of the informant be given at the time of publication.

The doctrine that a slander could be justified by giving the name of the author originated in Northampton's Case, 12 Coke, 134.But this rule related to a justification simply.It was but a dictum, published after the death of Lord Coke, which for a time was followed with some hesitation; but it has long since ceased to be regarded as law.Odger, Sland. &L. *162; Starkie, Sland. & L. (Wendell's Ed. 1852) c. 14, and note.Numerous cases, in which the question has arisen, hold that the giving of the name of an informant is no justification, but that the publisher of a libel or a slander is liable, even though he is not the author of it.He may do as much damage in spreading it as if he had started it.When, therefore, there is a plea of justification, evidence of the origin of the slander is not admissible for any purpose, because it is not a justification in itself, and a plea of the truth of the words spoken or written is such a reaffirmation of them as to make their origin Immaterial in the measure of damages.In view of this development of the law, it is but natural that expressions are to be found which may be taken to imply that the name of the author must be given at the time of the publication.They are generally used in opposition to the doctrine of Northampton's Case; as in Dole v. Lyon, 10 Johns. 447, Kent, C. J., says: "it is not sufficient that the printer, by naming the author, gives the party aggrieved an action against him."This is intended to apply to the exculpation of the defendant.In Talbutt v. Clark, 2 Moody &R. 312, there was a plea of the truth of the words.In Hamilton v. Eno, 81 N. Y. 116, there was a claim of privilege.Of Sheckell v. Jackson, 10 Cush. 25, we only know that Shaw, C. J., said that the answers about information could have no tendency to prove the truth of the words charged.In Rice v. Cottrel, 5 R.I. 340, the name of the author was given at the time, and the defendant urged that the onus was on the plaintiff to show that he was not thus informed; and the language of the court, which implies that the defendant may prove in mitigation of damages that the slander originated with another, if the author is named at the time, must be read in view of the facts of the case.But, where no justification is claimed, we know of no case which expressly holds that the fact of information from another cannot be shown, for what it is worth, upon the question of damages.Indeed, there seems to be a common agreement, starting with the idea of a full justification, that one who inadvertently repeats a slander is not equally liable with one who maliciously invents it, unless he reaffirms it by a plea of its truth.The object of giving the name at the time, that it might appear in exculpation that one was not stating a fact as from himself, has passed away, as also the notion that it was for the purpose of letting the plaintiff know who the author was, so that he could sue him, since all who take part in spreading a slander are liable.The source and character of the Information, however, are of consequence in considering a defendant's conduct.Everybody knows that telegraphic items in a newspaper are not composed in the office of the paper.It is as...