Pierson v. Times-Picayune Pub. Co.
| Decision Date | 28 February 1921 |
| Docket Number | 22830 |
| Court | Louisiana Supreme Court |
| Parties | PIERSON v. TIMES-PICAYUNE PUB. CO |
Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.
Action by Dr. Clarence Pierson against the Times-Picayune Publishing Company for libel. Judgment for plaintiff, and defendant appeals.
Amended and affirmed.
Benjamin T. Waldo and Lemle & Lemle, all of New Orleans, for appellant.
R. F Walker, of Clinton, and Dart, Kernan & Dart, of New Orleans for appellee.
O'NIELL, J. dissents.
On the Exception.
Defendant prosecutes this appeal from a judgment awarding plaintiff $ 7,500 as damages sustained by reason of alleged libelous publications appearing in the Times-Picayune, a daily newspaper of which defendant is publisher. It appears that the case was twice tried before juries; the first trial having been entered upon on April 2, and continued from day to day until May 11, 1917, when, the jury, being unable to agree, was discharged. The impaneling of the jury for the second trial began on May 28, and was completed on June 1, 1917, when the pleadings were read and the case continued to June 6. On June 5, in view of the fact that the summer vacation was to begin on July 1 and to extend to October 15, the counsel representing the litigants respectively, entered into the following agreement (omitting title of case and signatures) to wit:
"In the above entitled and numbered cause, leave of court having been had, it is hereby agreed between counsel for all parties that this case shall be continued during vacation, on the 1st day of July, 1917, and shall be tried and disposed of, and the judgment rendered and signed, all as in term time, and if there be any appeal the same may be taken by motion, as well as by petition, within the delays and in the manner prescribed, as if in term time, and that every day except Saturdays, Sundays, and legal holidays shall be counted and considered as a judicial day."
The case was again put on trial on June 6, and so continued until July 4, when the second mistrial was entered, and counsel for plaintiff then moved that the matter be taken under consideration by the judge, agreeably to the provisions of Act 51 of 1908, section 1 of which declares:
"That in any case where a jury has been prayed for by either party, and where the case has been tried twice by a jury without a verdict being reached, no further trial by jury shall be had, but the case shall be tried by the judge alone, the same as if no jury had been prayed for."
The motion having been fixed for argument on July 6, defendant on that day interposed certain objections which were overruled, and the judge, considering the Act of 1908 and the agreement of counsel, ordered that the case be fixed for trial before him on July 16, at which time a bill of exception, containing the following objections, was presented for signature, and signed, to wit, that Act 51 of 1908 "is unconstitutional, in that it is incomplete and defective in its title"; that if it be constitutional it does not authorize the trial of the case or the rendition of any judgment therein during the vacation of the court, i. e., between June 30 and October 15; that the agreement of counsel was intended to apply solely to the jury trial which ended in the mistrial on July 4; that, even if it were susceptible of the interpretation that it was intended to apply to a subsequent trial, defendant has a right to recede from it, and did, in effect, recede, by objecting to going into such subsequent trial; "that there is no law which authorizes the court to take up the trial of a cause where a jury has failed to agree and continue the said cause by rendering judgment therein."
On July 16 also, counsel, without further objection upon either side, offered all the evidence which they respectively had offered upon the previous trials, and it was agreed that if any evidence had been offered and not filed the counsel by whom it had been offered should have the right to file it, and plaintiff offered some evidence in rebuttal, to which the only objection was that it was irrelevant and immaterial, whereupon the testimony was closed, the case was argued on the question of the amount of damages, and the judgment was rendered.
The title of Act 51 of 1908, reads "An act in reference to trial by jury in civil cases." The act contains three sections; the first, is hereinabove quoted; the second declares that no judge shall set aside the verdict of a jury more than twice, and that, should there be three jury trials, the judge shall render judgment on the third verdict without entertaining a motion for a new trial; and the third declares that the act shall not affect pending cases. The substance of the act is therefore strictly germane to the title; and, as has been said with reference to an act entitled "An act relative to finances of the state," we are not prepared to say that the title does not sufficiently express its object. National Bank v. Mahan, 21 La.Ann. 751. See, also, Board v. Fowler, 50 La.Ann. 1358, 24 So. 809 et seq.; Compagnie Francaise, etc., v. State Board, 51 La.Ann. 645, 25 So. 591, 56 L.R.A. 795, 72 Am. St. Rep. 458; Thornhill v. Wear, 131 La. 479, 59 So. 909. In the case last cited, it is said (131 La. at 483, 484, 59 So. at 910):
"If the title does not mislead, or if it be such as not to take one by surprise, it may be good, although it may not be as ample as it might be."
As to the agreement, we find it impossible to conceive how its application can be confined to the jury trial that was pending when it was entered into, since it declares, in terms:
"Thatthis case (not the trial of the case) shall be continued during vacation, * * * and shall be tried and disposed of and the judgment rendered and signed, all as in term time, and, if there be any appeal, the same may be taken * * * as if in term time," etc. (Italics by the writer.)
As there had just been one mistrial, it is to be presumed that the possibility of another was within the contemplation of the parties, and they knew that a mistrial does not dispose of a case; also that without a final judgment there could be no appeal; and, further, that, if they desired to confine the application of the agreement to the then pending jury trial, the English language contains words in which that idea could readily be expressed. That the defendant could recede from the agreement, as expressed by its counsel, we very much doubt, but we do not understand that counsel are urging that claim, and we need express no opinion upon it. We conclude that the objections reserved in the bill were properly overruled.
On the Merits.
The publications alleged to be libelous relate to the methods employed and to a variety of incidents and conditions which are said to have occurred and been found existing in the insane asylum at Jackson in this state, and which, either in terms or by implication, are attributed to plaintiff, and constitute the bases of certain charges and insinuations alleged by him to be false, malicious, and highly injurious.
The defense is an affirmance of the truth of the statements contained in the publications and the assertion that they were privileged, which defense is sought to be strengthened by further charges set forth in paragraph 8 of the answer. That paragraph was ordered to be stricken out, but the trial judge, reconsidering his ruling, to some extent, admitted evidence offered on behalf of defendant in support of its allegations, and plaintiff, under protest, offered evidence in rebuttal. Defendant assigns error to the following effect, to wit:
(1) Plaintiff, having admitted that the articles complained of are based on facts, the lower court erred in decreeing that they are libelous; (2) erred in holding that a newspaper is neither privileged to criticize the acts of a public man nor the conditions existing in a public institution; (3) in holding that the truth or justification of the matters charged as defamatory was no defense; (4) in holding that the published articles were libelous, as the comment and criticism therein contained are not upon plaintiff's personal character but upon events which occurred and upon existing conditions in a public institution; (5) in awarding excessive damages.
The admission referred to was intended, as we think, to be applied only to certain of the facts, and, as qualified, meant no more than that, as stated in the published articles, they are but half truths, conveying false impressions. We find no error in the ruling complained of.
The first of the articles in question was intended to be published on Christmas Day, 1915; but its publication was delayed by circumstances to which we shall refer hereafter, and it appeared in the paper of Sunday, February 13, 1915, announced by the leading editorial of that date, which reads as follows:
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