Pugh v. Mccarty

• Decision Date: 31 December 1869
• Citation: Pugh v. Mccarty, 40 Ga. 444 (Ga. 1869)
• Parties: E. H. PUGH, plaintiff in error. v. JERRY McCARTY, defendant in error.*
• Court: Georgia Supreme Court

40 Ga. 444

E. H. PUGH, plaintiff in error. v. JERRY McCARTY, defendant in error.^*

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Libel.Charge of the Court.New Trial.Before Judge Gibson.Richmond Superior Court.July Term, 1869.

McCarty brought case against Pugh for maliciously publishing him, as having committed perjury, by reason of which he no longer was allowed by his acquaintances to have intercourse or business transactions with them.The words charged were as follows: "Not content with one oath from Jerry McCarty, they drag in another affidavit, almost a half a column in length.Surely, if their case is as clear as they pretend, *one oath ought to suffice.We have no reply to make to the statements of a lad (meaning plaintiff) who is convicted of perjury, by the solemn oath of a gentleman whose veracity stands unimpeached and unimpeachable."

The case was tried by a petit jury and plaintiff obtained a verdict for $5,000 00.Pugh appealed.On the last trial, plaintiff's attorney read in evidence an article printed in the Daily Press, or Augusta, Georgia, as follows: "The Chronicle and Sentinel, still sweating under our exposure of their duplicity in attempting to make it appear that they were entitled to the post-office printing, attempt to bolster up thestatement of their mail clerk, (which is fully refused, as every honest man knows, by that of Mr. Gregory,) in another column of vituperation Not content, " etc., as ante."We proudly leave the issue, and the editors who are sponsors for Jerry\'s declarations to the verdict of the public" * * *.The balance of the article is directed against Messrs. Moore & Wright, editors of the Chronicle and Sentinel, concluding with the remark that they should not charge an employee of the Press with theft, when everybody knew that Moore & Wright had pocketed $500 00 which belonged to the proprietor of the Press.

It was shown that at the date of said publication, Pugh was proprietor and publisher of the Press, that one Atkinson was its editor, and McCarty was (and still was) an employee of the Chronicle and Sentinel.The defendant introduced no evidence.

At the request of plaintiff's attorneys, the Court charged the jury, that to charge of one, in a printed newspaper, published and circulated in the county, that he is convicted of perjury, is actionable, without proof of special damage.He further charged that malice is an essential ingredient in libel, and in an action for damages plaintiff must prove the existence of malice, on the part of defendant, in making the publication, unless it imputes a crime, or something calculated to degrade him in society.When the publication imputes no crime to the plaintiff, nor anything actionable, the jury cannot infer malice on the part of the defendant, and then *plaintiff must show that he sustained some damage in consequence of the publication.If the words of the publication complained of as libel, are not actionable themselves, malicious intent in publishing them must be proved before plaintiff can recover.

The jury found for the plaintiff $2,500 00.Defendant's counsel moved for a new trail, upon the grounds that the Court erred in charging as requested by plaintiff's attorney, and because the verdict was contrary to the law and evidence, contrary to the balance of the charge and excessive.The Court refused the new trail, and error is assigned upon each of the grounds of said motion.

Hilliard & King, for plaintiff in error.

A. R. Wright, by W. Hope Hull, for defendant.

BROWN, C. J.

1.I do not think this case was fairly submitted to the jury.The legal proposition given in charge by the Judge, that to charge another, in a printed newspaper, published and circulated in the county, "that he is convicted of perjury, is actionable, without proof of special damages, " is sound law, as its legal effect is to say, that it is actionable to charge another with the commission of legal perjury, without proof of special damages.But when applied to the facts of this case it was not sufficiently full, and was calculated to mislead the jury, at least on the question of damage.

The words upon which the action was founded in this case were these: "We have no reply to make to the statement of a lad who is convicted of perjury by the solemn oath of a gentleman, whose veracity stands unimpeached and unimpeachable."This was not a charge that the plaintiff had committed or been convicted of legal perjury.On the contrary, the whole statement taken together explained the meaning of the writer so clearly, that any person of common sense who read it, could have no difficulty in understanding it.It showedthat there had been no oath taken in Court, in any *action on trial, or in any legal proceeding.In the controversy which was going on about the circulation of these two papers, Mr. Gregory had made a voluntary affidavit to one state of facts, and the plaintiff to another; and the charge simply meant, that it had been shown by the voluntary oath of Gregory, that the voluntary oath of plaintiff was not true.

But it is said this language, when printed and published, is libelous, though it might not be objectionable, per se, if spoken.I do not deny that it may be libelous.But I say it would not justify the jury in finding as heavy damages for the plaintiff, as a deliberate charge of legal perjury, written and published would justify.And I think the Judge should have so instructed the jury.To illustrate, suppose A writes and publishes of B that he committed perjury when testifying on a certain trial between C and D, in a Court of justice, in this, that the statement made by him under oath was postively false, but that he, A, is fully satisfied that B did it innocently because he thought his statement was true when he made it.And suppose an action for libel brought on this language, and the Judge on the trial should charge the jury, that it is actionable to charge another with perjury without proof of special damages, and stop there.This would be a sound legal proposition, but would it be a proper charge, when applied to the facts of the case on trial?Clearly not.It would be calculated to produce the impression on the mind of the jury, that, in the view of the Court, the effect of the publication was to charge B with legal perjury.And it would, if the publication as made were actionable, tend to induce the jury to increase the damages, as they would be sent to their room under the belief that A had charged B with a crime which he had not committed, and with which he had not, in fact, been charged.

2.But I am very well satisfied that the damages given by the jury, under the circumstances of this case, were excessive.An angry quarrel was being conducted, in bad spirit, and bad taste, between those who managed and controlledthe columns of these two newspapers, about the extent of their circulation.*The employees of the twoestablishments, or at least part of them, had taken sides and voluntarily made themselves parties to the quarrel.It seems, from the record, that the charge of theft and publicity had been made in the columns of the Chronicle and Sentinel against the employee of the Press, who had engaged in the strife, and in reply to this, the Press charged the employee of the Chronicle and Sentinel, so engaged, in the language already quoted.Whereupon he brought this action.Both parties were in fault, and so far as this record discloses, the party now suing, and the paper to which he belonged, were at least as much to blame as the other.

Now, while I do not claim that one tort can be set off against another, I say the jury should have taken into the account all these facts and mitigating circumstances, and should have found nominal damages only.See Code, section 3010.A party who provokes a difficulty, or who engages in it as willingly as the other party, and publishes libelous matter concerning his adversary, has no right, in law or morals, to recover as much damages as an innocent party, who is wontonly assailed by a libelous publication.Where there is equal culpability, and one party has a legal advantage, or one only appeals to the Courts, he is not a favored suitor, and should not be encouraged.He may have a legal right to recover, but his damages should be reduced, according to the circumstances of the case.

While the Courts should neither encourage nor favor those who are engaged in the publication of libels concerning each other, a very different rule obtains when the character of an innocent person is wrongfully and maliciously assailed.In such case, the jury should find such damages as will fully compensate the plaintiff for the injury done, including his mental or other suffering, resulting from the unfounded and malicious attack; and such as will tend to check the wanton licentiousness of such presses as knowingly pervert the truth, and willfully malign private character.Code, sections 3011,3012.

Judgment reversed.

*McCAY, J., concurred, but furnished no opinion.

WARNER, J., dissenting:

The law governing actions for libel, enunciated by the majority of this Court, as applicable to the facts contained in the record of this case, cannot, in my judgment, be sustained either upon principle or authority.When an appellate Court decides the law governing a particular class of actions, that decision should be based on sound fundamental principles; otherwise, it will be considered as mere "vain babbling, " entitled to no respect as authority, and will be productive...