Metcalf v. Times Pub. Co.

• Decision Date: 27 July 1898
• Citation: 20 R.I. 674,40 A. 864
• Parties: METCALF v. TIMES PUB. CO.
• Court: Rhode Island Supreme Court

40 A. 864

20 R.I. 674

METCALF

v. TIMES PUB. CO.

Supreme Court of Rhode Island.

July 27, 1898.

Action by Henry B. Metcalf against the Times Publishing Company for libel. Defendant entered a plea of privilege, and plaintiff demurs. Demurrer sustained.

Hugh J. Carroll and Wm. H. Greene, for plaintiff.

Cooke & Angell and Joseph Osfield, Jr., for defendant.

STINESS, J. The plaintiff sues to recover damages for a libel alleged to have been printed in the Evening Times, a newspaper in Pawtucket, published by the defendants. The declaration sets out that upon the filing of a bill in equity by Annie Campbell against the plaintiff and other associates in business, charging them with having conspired to defraud her deceased husband, Duncan H. Campbell, of certain letters patent of this and foreign countries, and upon the order by a justice for citation, and an ex parte preliminary injunction until hearing, the defendants published the charges of fraud, to the damage of the plaintiff. The defendants pleaded specially that the said Evening Times was a public newspaper; that they published said matters because they believed them to contain information which it was important for the public to know; that said matters were a part of the public records of this court, upon which there had been judicial action, which, denying all malicious intent, it was lawful for them to do. The plaintiff demurs to the plea.

The question of privileged publications is one that has been much considered, and certain lines may now be said to be well established. In Rex v. Wright, 8 Term R. 293, in 1799, which was an application for a criminal information for libel growing out of the Home Tooke Case, it was held that a report of the house of commons could be published, even though it reflected on the character of an individual. Hoare v. Silverlock, 9 C. B. 20, was to the effect that a full and impartial report of a trial in a court of justice could be published. Some stress was laid upon the distinction between a full trial and an exparte proceeding, which, however, was not necessary to the decision of the case. Davison v. Duncan, 7. El. & Bl. 229, held that a fair report of defamatory matter uttered in a public meeting was not privileged. McGregor v. Thwaites (1824) 3 Barn. & C. 24, held that proceedings before a magistrate, not judicial, but advisory, were not privileged; and Duncan v. Thwaites, Id. 556, extended the rule to proceedings which took place in the course of preliminary inquiry before a magistrate. Lewis v. Levy, El., Bl. & El. 537, questioned the decision in Duncan v. Thwaites; and although the case was understood to hold that the privilege of a fair report extended to proceedings taking place publicly before a magistrate on the preliminary investigation of a criminal charge, terminating in the discharge of the prisoner, yet the court did not expressly decide that question. Reg. v. Gray, 10 Cox, Cr. Cas. 184, carried the rule to this extent, but the court was not unanimous in the decision. In Usill v. Hales (1878) 47 Law J. Q. B. 323, Lord Coleridge, C. J., fully adopted the apparent rule of Lewis v. Levy; and Lopes, J., concurring, said: "There are authorities which, until they are carefully examined, would seem to support the contention that an ex parte proceeding in court is not privileged. So far as I can ascertain, these are cases where the proceeding was preliminary, and where there was no final determination at the time of the alleged libelous report." In Wason v. Walter, L. R. 4 Q. B. 73, the dictum of Cockburn, C. J., goes further,— that fair reports of all ex parte proceedings are privileged. Ryalls v. Leader, L. R 1 Exch. 296, held that the examination of a debtor in custody, before a registrar in bankruptcy, was a proceeding before a public court, and hence privileged. In Kimber v. Association [1893] 1 Q. B. 65, the court went to the full length of holding that the publication of a fair report of proceedings held in open court, though preliminary and ex parte, is privileged. This case is quite remarkable from several facts. It was an application to magistrates, specially called together by the clerk, for a summons to one charged with perjury, and no evidence was given under oath. The application was granted, and one of the principal questions argued was whether it was an open court it was also held that the matter was one for final determination, because if it was refused it would be final, and if it was granted there would be a further inquiry, and the matter might go on to trial. Following the outline of leading decisions, in which there has been a gradual progress, the law of England seems now to be that a full and fair report of proceedings in an open court, upon a matter standing for final decision, even though the inquiry may be preliminary and ex parte, is privileged. See opinion of Kay, L. J., in Kimber v. Association. In this country the law has been declared in very much the same way. In Gazette Co. v. Timberlake (I860) 10 Ohio St. 548, it was held that privilege does not extend to the publication of preliminary proceedings merely, which are of a purely ex parte character. The opinion, however, follows the earlier English cases. Barber v. Dispatch Co., 3 Mo. App. 377, laid down this rule: "Where a court or public magistrate...