Snyder v. Fulton

• Decision Date: 21 February 1871
• Parties: GEORGE SNYDER v. CHARLES C. FULTON and ALBERT K. FULTON.
• Court: Maryland Court of Appeals

34 Md. 128

GEORGE SNYDER v. CHARLES C. FULTON and ALBERT K. FULTON.

Court of Appeals of Maryland

February 21, 1871

APPEAL from the Superior Court of Baltimore City.

The facts are sufficiently given in the opinion of the Court. At the trial below the plaintiff offered the following prayers which were rejected, and the instructions set out in the opinion of the Court given instead:

1. If the jury believe from the evidence that there was an unlawful and felonious assault committed, as set out in the declaration of the plaintiff, that the defendants made and published in the city of Baltimore, on the 14th of October 1868, the article set out in the said declaration; and that the plaintiff was designated by that article, as acting in collusion with and in aid of the parties committing said assault, that then, under the pleadings in the cause, they must find a verdict for the plaintiff.

2. That by the pleadings in this case, the defendants admit that the plaintiff is not guilty of the charge alleged in the libel and set out in the declaration, and that all the evidence given by the defendants in regard to the conduct of the plaintiff in taking the vote, and his behavior towards members of the Republican party, is evidence not to defeat the plaintiff's right to recover a verdict as set out in the first prayer, but was received, and is only to be considered by them as offered by the defendants for the purpose of endeavoring to mitigate and diminish the amount of the damages that the plaintiff is entitled to recover, if the jury find a verdict in his favor under said first instruction.

3. That if under the preceding instruction the jury should find a verdict for the plaintiff, then he is entitled to recover such damages as the jury may find he sustained from the loss of his position as newsboy on the Baltimore and Ohio Railroad; provided the jury shall find that he lost his position as a direct consequence of said publication; and in addition to the special damages, such other damages as the jury may award him as resulting to him directly from said publication; and if the jury should further find that the said publication proceeded from ill-will to the plaintiff that then the jury may award to the plaintiff vindictive or punitory damages.

4. That if the jury find that the plaintiff, at and previous to the publication of the libel, as set out in the declaration, was a newsboy engaged in crying and selling newspapers and periodicals on the cars between Baltimore and Washington; and that amongst the papers so cried and sold by him, was a paper called the La Crosse Democrat; and that the crying and sale of said paper was considered offensive and insulting by certain parties; and that it was in allusion to such crying and sale, that the defendants charged that in the said libel the plaintiff took every occasion to insult Republican passengers; and that, after the publication of the card of plaintiff, read in evidence, if the jury should find that said card was published, and that defendants had notice thereof, the said defendants failed to retract the said libellous publication; and that on the 1st of October instant, the plaintiff re-published the substance of the said libel without any explanation and retraction whatsoever; that then these facts are to be considered by the jury, in determining whether the defendants were actuated by ill-will towards the plaintiff, in publishing the libel aforesaid; and if the jury find such ill-will, then the plaintiff is entitled to recover vindictive damages, if the jury find the facts set out in the first instruction.

5. If the jury find from the evidence in this case, that the libel complained of in the declaration was false and without probable cause, so far as relates to the plaintiff, then such falsehood and want of probable cause, are evidence of express malice towards the plaintiff.

The cause was agued before BARTOL, C.J., BRENT, GRASON, ALVEY and ROBINSON, J.

M A. Mullin and Robert J. Brent, for the appellant.

The publication of a libel charging another with an indictable offence, is of itself actionable. 1 Starkie on Slander, 39, 40.

Independently of the charge of a crime at common law, the alleged collusion with the mob engaged in the felonious assault of travellers at night, would render the plaintiff liable to fine and imprisonment under the local law. Code of Public Local Laws, Art. 4, sec. 155.

An action lies for written words exposing a man to public hatred, ridicule or contempt, even without proof of special damage. 1 Kent's Comm., 620, 621.

The Court, in its instructions to the jury, erred in the question of privileged communications, and particularly in ascribing to the defendants, as publishers of a public newspaper, peculiar privileges in discussing, not only public events, but the actions and motives of individuals charged with crimes.

The instruction means that the defendants, as editors of a newspaper, are privileged to libel an individual because evildoers have committed crimes and are not punished, provided their comment on the facts as reported to them was fairly and bona fide made " pro bono publico," although it implicates an innocent party, or is based on false information.

It is true, the Judge speaks of the right and duty of editors to publish the facts which come to their knowledge constituting the crime, and if the charge only meant to say that if the defendants had published the real facts which came to their knowledge, then they would not be liable, it would still be erroneous, as justification had not been pleaded. Rigdon vs. Wolcott, 6 G. & J., 413; Hagan vs. Henry, 18 Md., 191; 2 Greenleaf's Evid., sec. 275; Wolcott vs. Hall, 6 Mass., 514.

Even when an editor has the privilege of making fair criticism, it is held "that the privilege does not extend to calumnious remarks on the private character of the individual. Heriot vs. Stuart, 1 Esp. Cases, 437; Townsend on Slander, note, 1312.

The newspaper press has no more privileges in an assault on private character, than an individual would have. The measure of liability is the same in one case as another, as shown in Townsend on Slander, secs. 252, 254, 255; Camp bell vs. Spottiswoode, 8 Law Times Rep., N. S., 201, 3 Fost. & Fin., 421; Sheckell vs. Jackson, 10 Cush., 25; Dole vs. Lyon, 10 Johnson, 450; Woodgate vs. Ridout, 4 Fost. & Fin., 217; Darby vs. Ouseley, 36 Eng. Law and Eq., 527; Hedley vs. Barlow, 4 Fost. & Fin., 228.

On the question of damages the instruction of the Court was an emanation of the error pervading its instruction on the question of privilege. Townsend on Slander, secs. 198, 290.

Henry Stockbridge, for the appellees.

The law does not require publishers to be infallible. If they act in good faith, and with reasonable prudence, the publication is privileged, even though prompted by malice. White vs. Nicholls, 3 How., 286, 291; Cook vs. Hill, 3 Sandf., 341; Gathercole vs. Miall, 15 M. & W., 319; Kelley vs. Tinling, Law Reports, 1 Queen's Bench, 699; Wason vs. Walter, Law Reports, 4 Queen's Bench, 73; Risk Allah Bey vs. Whitehurst, 18 Law Reporter, N. S., 615.

BARTOL C.J., delivered the opinion of the Court.

This is an appeal by the plaintiff, who recovered a judgment below; and being dissatisfied therewith, asks for a reversal for certain alleged errors in the ruling of the Superior Court, in refusing to grant his several prayers, and in the instruction given to the jury.

The suit is for the publication of an alleged libel, in "The Baltimore American," a newspaper of which the defendants are editors, proprietors and publishers. The plaintiff's occupation was selling newspapers and periodicals on the railway trains between Washington and Baltimore. The alleged libel was contained in an article published in "The American," the whole article was given in evidence. After stating that passengers passing through Baltimore from Washington, on their way to Philadelphia, had been, on several occasions, assaulted and beaten by ruffians, and that the repetition of such outrages reflected discredit on the Police Department as well as on the Railroad Companies; it then refers to a particular instance in which such an outrage had been committed on a Mr. Clary, a passenger, at the President Street Depot, in Baltimore, and commenting thereon, states that "the object of this brutal outrage was to prevent Republican clerks, and others temporarily employed in Washington, from going to Philadelphia to vote;" then adds the following, which constitutes the libellous matter complained of by the plaintiff, and set out in the declaration:

"A young man on the Washington train, who is engaged in selling papers, and who takes every occasion to insult Republican passengers, appears to have been in collusion with the ruffians. On approaching the city he went around to take a vote of the passengers, the object being evidently to spot the Republicans, that the assailants might know who were their friends and who their opponents. The scheme was successful, and on passing through the city, an ex-police officer of Washington pointed out the victims, who had unwittingly proclaimed their political predilections in favor of Grant and Colfax." The declaration alleges as

...