Smart v. Blanchard , 42 N.H. 137 ( 1860 )

Bellows, J.

The evidence offered to show the character of the donation party, and the conduct of the persons attending it was rightfully rejected. Under the general issue the defendant can not prove that the plaintiff was guilty of the acts charged, either in justification, or to mitigate damages or rebut malice. Dame v. Kenney, 25 N. H. 318; Pallett v. Sargent, 36 N. H. 496; Knight v. Foster, 39 N. H. 576. The offer to show the character of the party and the conduct of the persons attending it, could have had no bearing except so far as it tended to show the plaintiff’s conduct, and under this plea such proof was not admissible.

Another question is, was it competent to prove the understanding of witnesses that the libel applied to the plaintiff. The meaning of the defendant in this respect is undoubtedly a question of fact to be found by the jury, under the instructions of the court. 2 Greenl. Ev., sec. 417, and notes; Oldham v. Peake, 2 W. Bl. 959, 962. Whether the libel was of and concerning the plaintiff is a question for the jury to decide. Van Vechten v. Hopkins, 5 Johns. 211. So far there is no conflict in the authorities, but the important question is, how far is the testimony of witnesses, stating how the libel was understood, to be received. In Van Vechten v. Hopkins it was held that the opinion of witnesses that, on reading the libel, they believe the plaintiff to be the person intended, was not admissible; and so are Gibson v. Williams, 4 Wend. 320, 325; Beardsley v. Maynard, 4 Wend. 359, and Goodrich v. Davis, 11 Met. 484. In Snell v. Snow, 13 Met. 282, it was held that the witness who testified to the words spoken could not be allowed to state his understanding of their meaning. But in Miller v. Butler, 6 Cush. 71, it was held that a witness might state that in his opinion the term “ Colonel” meant “ Col. Miller,” and the court say that this is not inconsistent with Goodrich v. Davis, or Snell v. Snow. So is Leonard v. Allen, 11 Cush. 241; 17 U. S. Dig. 382, sec. 67. And in 2 Greenl. Ev., see. 417, it is said that to some extent witnesses acquainted with the circumstances must be permitted to state their opinion, conclusion and belief. In accordance with Van Vechten v. Hopkins, is White v. Sayward, 33 Maine 322.

Upon the other hand it has been held that it was competent to show, by persons to whom the libel was published, that they understood it to apply to the plaintiff, and that the terms used being ambiguous, so far as they related to the persons intended, it was a question for the jury to determine whether they did so apply or not; and, consequently, it was incumbent upon the plaintiff, by proper averments and proof, to show that the defendant intended to apply his remarks to the plaintiff; and, also, to show that the persons who read the libel so understood it. 2 Greenl. Ev., sec. 417; 2 Stark. Ev. 861; 2 Stark, on Slander 320, 350; Miller v. Butler, 6 Cush. 71; Phillips v. Barber, 7 Wend. 439; Norton v. Ladd, 5 N. H. 200; Smalley v. Stark, 9 Ind. 142; Sasser v. Rowe, 13 Ired. 142; Pond v. Hartwell, 17 Pick. 268; Woolwich v. Meadows, 5 East. 463. In that case Lord Ellenborough held that the plaintiff must show the intention of the defendant to impute the crime to the plaintiff, and that it was so understood by the hearers. In Bowker v. Warren, 2 C. & P. 307, where the person was designated by five asterisks, held it was sufficient, if those who knew the plaintiff' understood it; and witnesses were allowed to state how they understood it. Similar views are laid down in American Leading Cases 136, 137, and 139, in notes to Van Vechten v. Hopkins, 5 Johns. 211. It is there said that the ordinary signification and acceptation of words and the understanding of the hearers fix the meaning in slander. See Robinson v. Keyser, 22 N. H. 323. So when the words were uttered in a foreign language it may be proved that the hearers did not understand them at all. In such eases no injury could have been occasioned by the words, though used in an actionable sense and intended to apply to the plaintiff, but so cautiously expressed as to defeat the purpose. 2 Greenl. Ev., secs. 417-419, and note; 2 Stark, on Slander 51, 52 ; Hobart 268 ; 1 Yin. Abr. 507 ; Gilb. Cases, L. & E; 1. Chit. Pl. 406. If the slander is in a foreign language it must be set out in that language and with an English translation, and an averment that the hearers understood them, and so must be the proof. Zeig v. Ort, 3 Chand. 26 ; 2 Greenl. Ev. 414, note; and so is Wormouth v. Cramer, 3 Wend. 394. So a libel by pictures or signs must be shown to be understood by the spectators. 2 Greenl. Ev. 414; 2 Stark, on Slander 13,14.

The distinction that the understanding of the hearer is received for no other purpose than to show the sense in which he received it, and not how it was intended, is recognized in Leonard v. Allen, 11 Cush. 241; Sasser v. Rowe, 13 Ired. 142, and Hawkes v. Patten, 18 Geo. 52. There are some cases, however, which hold that the understanding of the hearers is not admissible for any purpose, as Snell v. Snow, 13 Met. 278; Gibson v. Williams, 4 Wend. 320; White v. Sayward, 33 Me. 322; Van Vechten v. Hopkins, 5 Johns. 211. In the latter ease it was held 'that the opinion of the witness from reading a libel, that it applied to the plaintiff was properly excluded; but it appeared that the witness had no knowledge of the circumstances except what he obtained from reading the libel, nor did it appear that he was one of the persons to whom it was published. The court held that the intention of the defendant is not to be proved by the opinion of witnesses in this way, and Van Ness, J., said it was inadmissible because it went to prove the correctness of an innuendo which he says is not, like the averment and colloquium, the subject of proof by witnesses. Spencer, J., who tried- the cause, put the exclusion of the witness upon the ground that he was called to aid the court in construing the libel. The case of Gibson v. Williams, 4 Wend. 320, goes further, and excludes the understanding of the witness as to the person intended, but is based upon Van Vechten v. Hopkins.

Upon a careful examination of the cases, we are inclined to hold that the true rules to be deduced from them are these: That where the words are ambiguous, and the application doubtful, it must be shown by the plaintiff. (1) That the words were actually used in their actionable sense, and were applied to the plaintiff. (2) That the hearers so understood them; and, upon this point, the testimony of the hearers, as to how they understood them, is admissible, although it would have no legal tendency to show in what sense they were actually used, inasmuch as the hearers may have been under a total misapprehension, both of the meaning and the application, and it would be hard that the defendant should be responsible for such mistake.

Had it appeared, then, as in the ease before us, that the meaning was ambiguous and the application doubtful, and that the witness was one to whom the libel complained of was published, his understanding of it would be admissible, especially if it appeared that he was acquainted with the circumstances to which it related. Great.care, however, should be taken, that under the pretense of showing how the hearers understood an ambiguous expression, the mere opinion of the witness, as to the interpretation of the language, should not be received. And we are inclined to think that, although in the exercise of a sound discretion, the court would admit such evidence, yet it would not be safe to extend the principle beyond the cases suggested, or to admit such testimony without cautioning the jury not to give it any weight in determining the sense in which the defendant used the words. In this case it does not appear that the witness was one to whom the libel was published, or that he had any peculiar knowledge upon the subject that could not have been readily given to the jury to enable them to determine its application.

Upon the subject of the alleged variance, the court charged the jury that if the article adduced in evidence agreed substantially, in its sense and meaning, with the libel charged, it was sufficient, and this we are inclined to think is correct. Miller v. Miller, 8 Johns. 74; 2 Greenl. Ev., sec. 414; Whitney v. Smith, 13 Pick. 372; Pearsons v. Bellows, 6 N. H. 289; Bassett v. Spofford, 11 N. H. 127. But all the words need not be set forth, only enough to show the sense and connection in which those set forth were used. Edgerly v. Swain, 32 N. H. 478; 1 Chit. Pl. 405.

In respect to the fifth count, in which part of the published article is omitted, if what is set out is the same in substance, that is, contains the same charge, not altered substantially by what is omitted, it is well enough. If, however, by taking the whole together it makes a different charge from what is made by the part set out alone, the variance is fatal, although it may have contained a substantial slander, but of a different nature. But we think that the libel, with or without the part omitted, is substantially the same, and in either form, if applied to the plaintiff, is clearly actionable. But it is said that whether there be a variance or not is matter of law, where there is no dispute as to the words. If this be so, still, as the words are before us, and we can see that the jury have found, as the court would pronounce the law, no injury is done, aud the verdict should not, on that account, be disturbed.

The court properly declined to instruct the jury as requested — that if the defendant acted bond fide- in the discharge of what he believed to be his duty, the action could not be maintained without extrinsic proof of express malice. The conductor of a public press has the same rights to publish information that others have, and no more. He has no peculiar rights or special privileges or claims to indulgence. He. may publish the truth, but has no right to publish falsehood to the injury of others. The case of a conductor of a public press does not come within the class of persons privileged in their communications. Sheckel v. Jackson, 10 Cush. 25. If false, the law infers malice from the publication, although in a newspaper, unless the contrary is shown. King v. Harvey, 2 B. & C. 259. There is no right in printers more than others to do wrong, and they are not justified because they did not write the article, or did not know the plaintiff'; that does not disprove malice, but often aggravates it by showing a wantonness and indifference whether it be true or false. Story, J,, in Dexter v. Spear, 4 Mason, 115. The liberty of the press is not endangered by the punishment of libelous publications. Any publication is a libel which tends to degrade, injure, or bring a person into contempt and ridicule; or accuses him of crime or other act odious or disgraceful. It is even held in England, that a report of proceedings and testimony in a preliminary examination of the plaintiff, before a magistrate, if false and injurious, is a libel. Duncan v. Thwaites, 3 B. & C. 556. So it is held that a publication in a newspaper is actionable, though the editor believed it to be true, and did it from good motives. Usher v. Severance, 20 Me. 9. And so in Hotchins v. Oliphant, 2 Hill 510— held no defense that he copied from another paper.

Where many persons are included in the same attack, the plaintiff is not the less entitled to redress; Ellis v. Pickering, 16 Pick. 132; and the words, “your children are thieves,” will give a right of action to each; Giding v. Blake, 11 Johns. 54, citing Foxcraft v. Lacy, Hob. 89, where the words were “ these defendants helped murder H. F.;” although there were seventeen of them, it was held that each might sue. Where the words relate to a class of persons, as printers, for example, the law is otherwise, as appears in Giding v. Blake, and cases there cited.

Our conclusion, then, is, that there was error in admitting the opinion of the witness, as to the application of the libel to the plaintiff, and therefore the

Verdict must be set aside.