Stacy v. Portland Pub. Co.

• Decision Date: 07 June 1878
• Citation: 68 Me. 279
• Parties: GEORGE G. STACY v. PORTLAND PUBLISHING COMPANY.
• Court: Maine Supreme Court

68 Me. 279

GEORGE G. STACY v. PORTLAND PUBLISHING COMPANY.

Supreme Judicial Court of Maine.

June 7, 1878

ON EXCEPTIONS AND MOTION by plaintiff to set aside, for inadequacy, a verdict in his favor for one dollar.

CASE for libel of and concerning the plaintiff, personally professionally, as a lawyer; and officially, as secretary of state, published in the Portland Daily Press, September 24 1875, under the head of " Personal," in these words:

" A responsible gentleman of Hallowell informs us that Secretary of State Stacy, was recently arrested in that city for drunkenness and disturbance. A ten dollar note quieted the affair."

The plea was not guilty, with a brief statement of the truth of the matter published and that it was proper for public information.

There was evidence tending to show that the plaintiff was admitted to practice law in 1858, practiced a year or more, was then elected member of the legislature, and remained at Augusta ever after, first as engrossing clerk in the office of the secretary of state, then as state librarian, then four years as deputy secretary of state; was elected secretary of state first in January, 1872, and held the office till October 1 1875.

Charles E. Nash testified to a conversation at the Kennebec Journal office, in June, 1875, with Col. Z. A. Smith, associate editor of the Press, who inserted the item alleged to be libelous. " The subject of the conversation was the removal of the Col.'s brother, Joseph O. Smith, from the office of the secretary of state."

" The Col. was excited; I tried to quiet him, bantered him somewhat. He was very much displeased at the removal of his brother; said it was made by Stacy. He wanted me to go and see Stacy with him, to see if it could not be reconsidered. He said among other things, that he was going to impeach Stacy at the next session of the governor and council. I laughed at him; told him he was foolish. Think I calmed him some. He said ‘ I am going to ruin that man.’ I told him he had better not attempt to make any war upon Stacy. I was a friend to both; he asked me if I would go with him to Stacy's house. He said, if I go I shall do something foolish while there."

William P. Whitehouse testified to a conversation at his office with Z. A. Smith, on the same subject, June 19, 1875. " He asked me to intercede with Stacy for the reinstatement of his brother. He complained in somewhat extravagant language of Stacy's treatment, and in a cool manner, which excited my laughter, said that he thought a very proper thing was to shoot him. I agreed to see Mr. Stacy that afternoon but did not, and called at the depot to explain why. Smith said he had seen Stacy himself, that afternoon. I said, I thought perhaps the matter could be satisfactorily arranged between them; would see him if possible next day. He said he didn't think it was of any use; that he should bide his time and knife him the first chance he got. I laughed at him and told him he had better keep cool. In his tones and manner, there was an assumption of coolness; I don't remember that he laughed any; he was very angry.

I think he said, he thought the only proper thing to do, was to shoot him; I don't remember precisely what his language was; he seemed to be revolving the propriety of doing it. Of course I laughed and ridiculed the idea."

On cross-examination: Ques. Did he have an exaggerated way of talking? Obj. to and admitted. Ans. I think he had. Ques. You did not apprehend that he was going to shoot Mr. Stacy? Obj. to and admitted. Ans. I did not really think that he intended to or would shoot him.

Re-direct: Ques. You was asked whether you apprehended from his conversation, that he was going to shoot Mr. Stacy; and that he would bide his time and knife him the first chance he got. What did you understand him to mean? Obj. to and excluded.

The defendants offered to put the truth of the alleged libel in evidence. The plaintiff objected because the pleadings did not assert the truth of the whole libel, or that ten dollars was paid to quiet the affair and in confession of guilt; there could not be a justification pro tanto. The court admitted the evidence, which tended to prove that defendant, on the evening of August 31, 1875, was driving alone in a high top buggy from Augusta to Hallowell; that the wheels of his carriage came in collision with the carriage wheel of one Trask, who had stopped by the road side to water his horse; that an altercation ensued; that the parties proceeded to Factory lane in Hallowell, where the plaintiff was confronted by Trask and city marshal Young with the charge of running into Trask's carriage; that he refused at first to give his name till threatened with arrest; that he was very angry, used much profane and abusive language, and in the opinion of witnesses, admitted against plaintiff's objection, was intoxicated; that he was ordered by the city marshal to appear at the judge's office the next morning to answer for drunkenness and disorderly conduct; that he there appeared and requested Mr. Snow to see the city marshal, " to settle up the difficulty and have it stopped; " that Snow was informed by the city marshal that it could be settled for $10, and Snow told him not to bring an action or take out a warrant, and that if Stacy did not pay the $10, he, Snow, would see it paid; that these facts were communicated by Snow to Z. A. Smith.

The plaintiff testified: " The evening was quite dark; I was driving about four miles an hour when I struck Trask's carriage; Trask said, you have injured my carriage and have got to pay damage; I denied I was at fault and laid the blame on Trask; used forcible language, might have used profanity; Trask demanded $10 for springing his axle; went to the city. Marshal Young said this is Trask, he claims $10 for injury to his carriage; I was excited, said I should not pay anything, that Trask was to blame; told them my name, the man doubted it; I don't know but I said he was a damned fool. I told him if he doubted my word to get into my carriage, I would take him to Mr. Bodwell, Mr. Wilson or Maj. Rowell; he said they will not want to see you in the condition you are in; I said I can take care of myself and don't ask any favors. I propose to visit respectable men, so you will be able to determine my condition; he fell back on the damages, said Trask says you must pay ten dollars or he will sue you; told him I should sue Trask; should appear at 9 o'clock in the morning, and left for home; next morning saw the marshal, inquired for Trask; was told he thought he would not press his claim; I never asked Snow to settle the matter or commissioned him to act for me; during that day and evening I had not tasted any intoxicating liquor in any form whatever, that I am aware of; I had not taken a drop of wine or ale, no kind of liquor; I hadn't had access to any; I hadn't been where they kept it, at any store, shop or public place, nor to any private house, except where I boarded; I think, the only places where I was that day--I was ill--was the Western Avenue House, Mr. Harding's and my stable; I was at Maj. Fogler's house, I didn't go in; went there before tea; told him what the matter was, a bowel trouble; the Maj. recommended Jamaica ginger, and brought out a small vial having not more than two teaspoonfuls of Jamaica ginger in it; he gave it to me, and advised me to take it; I don't know whether I took all at one time or twice; it was all taken before tea; after tea went to Hallowell and back; my carriage was not injured."

Among other things not objected to, the presiding justice instructed the jury as follows:

" Was the plaintiff arrested in Hallowell for drunkenness and disturbance? Was he arrested there at all? And, if so, was it for drunkenness and disturbance? Because, you will perceive that the article published, on this branch, contains two statements of fact; one that he was arrested, the other that the arrest was for drunkenness and disturbance.

I have already stated to you that the burden is upon the defendants to prove strictly and fully the truth of the facts set out in the publication… .

Have the defendants proved that the officer, Mr. Young, arrested the plaintiff on the night in question within this rule of law? Did he inform the plaintiff, in substance, that he arrested him? Did the plaintiff so understand it and yield himself to the authority of the officer, thus asserted? If so was he arrested for drunkenness and disturbance? Or was it for the purpose of compelling the plaintiff to pay damages to Mr. Trask? You have heard the evidence upon this branch of the case… .

If arrested was it for drunkenness and disturbance? If so, upon this branch of the case, I instruct you that this defense is made out so far as these two facts are concerned, although the plaintiff was not in fact drunk. Because, you will perceive that the charge in the article is not that the plaintiff was drunk; it is that he was arrested for drunkenness and disturbance. You will determine whether the defendants, having the burden of proof upon them, have satisfied you that that assertion in the article was true.

Then pass to the other portion of this article--‘ A ten dollar note quieted the affair.’ …

The elements of damage which you are authorized to consider are, the damage to his character as a man, as a citizen, pain, mental pain and suffering, anguish, mortification, loss of the benefits of public confidence and social intercourse, which are the natural and necessary results of the publication.

Then there are elements which you may consider in determining the amount of damages--elements of aggravation if you find them to exist. It is claimed here that there was express malice. If you find there was express malice...