Palmer v. City of Concord , 48 N.H. 211 ( 1868 )

Smith, J.

I. A. libel, as applicable to individuals, is a malicious publication, tending to injure the reputation of the person libelled, and expose him to public hatred, contempt, or ridicule. 2 Kent’s Com. 16, 17 ; Bellows, J., in Smart v. Blanchard, 42 N. H. 137, p. 151. The first of these articles charges the United States forces in Virginia with cowardice, and holds them up as objects of ridicule therefor. The fourth article calls the army a "mob,” and, although the charges of murder and robbery may perhaps be considered as limited in their application, the charge of cowardice against the whole army is repeated. The fifth article in effect charges-those bodies of soldiers who passed thorough, or occupied, Hampton, Martinsburg, Fairfax, or Germantown, with improper treatment of persons of all ages and sexes in each of those places. If such charges had been made against a single soldier named in the articles, they would prima facie have constituted a libel. The tendency to expose him to contempt or ridicule could not be doubted; and the tendency to injure his professional reputation would be equally apparent. A soldier’s character for courage or discipline is as essential to his good standing as a merchant’s reputation for honesty, or a physician’s reputation as to professional learning or skill, would be in their respective callings. And by military law, to which the soldier is amenable, we suppose cowardice would be regarded as a crime punishable by severe penalties.

As these charges were made against a body of men, without specifying individuals, it may be that no individual soldier could have maintained a private action therefor. But the question whether the publication might not afford ground for a public prosecution is entirely different. Civil suits for libel are maintainable only on the ground that the plaintiff has individually suffered damage. Indictments for libel are sustained principally because the publication of a libel tends to a breach of the peace, and thus to the disturbance of society at large. It is obvious that a libellous attack on a body of men, though no individuals be pointed out, may tend as much, or more, to create public disturbances as an attack on one individual; and a doubt has been suggested whether "the fact of numbers defamed does not add to the enormity of the act;” see 2 Bishop on Criminal Law, 3d ed., sec. 922; Holton Libel, 246-7 ; Bussell on Crimes, 1st Am. Ed., 305, 332. In Sumner v. Buel, 12 Johnson 475, where a majority of the court held that a civil action could not be maintained by an officer of a regiment for a publication reflecting on the officers generally, unless there was an averment of special damage, Thompson, O. J., said, p. 478 : "The offender, in such case, does not go without punishment. The law has provided a fit and proper remedy, by indictment; and the generality and extent of such libels make them more peculiarly public offences.” In Ryckman v. Delavan, 25 Wend. 186, Walworth, Chancellor, who held, in opposition to the majority of the court of errors, that the plaintiff could not maintain a civil suit because the publication reflected upon a class of individuals and not upon the plaintiff personally, said, pp. 195-6 : "There are many cases in the books where the writers and publishers of defamatory charges, reflecting upon the conduct of particular classes, or bodies of individuals, have been proceeded against by indictment or information, although no particular one was named or designated therein, to whom the charge had. a personal .application. All those cases, however, whether the libel is upon an organized body of men, as a legislature, a court of justice, a church, or a company of soldiers, or upon a particular class of individuals, proceed upon the ground that the charge is a misdemeanor, although it has no particular personal application to the individual of the body or class libelled, because it tends to excite the angry passions of the community, either in favor of or against the body or class in reference to the conduct of which the charge is made, or because it tends to impair the confidence of the people in their government or in the administration of its laws.” In the course of his opinion the Chancellor mentions a Scotch case, (Shearlock v. Beardsworth, 1 Murray’s Rep. of Jury Cases,) where a civil suit was maintained which was "brought by a lieutenant colonel in behalf of his whole regiment for defamation, in calling them a regiment of cowards and blackguards.” In Rex v. Hector Campbell, King’s Bench, Mil. Term, 1808, (cited in Holt on Libel, 249, 250,) an information was granted "for a libel on the college of physiciansand the respondent was convicted and sentenced.

Cases may be supposed where publications, though of a defamatory nature, have such a wide and general application that in all probability a breach of the peace would not be caused thereby; but it does not seem to us that the present publication belongs to that class.

Our conclusion is that the jury should have been instructed that the first, fourth and fifth articles were prima facie libellous, and that the publication of those articles must be regarded as "illegal conduct,” unless justified or excused by facts sufficient to constitute a defence to an indictment for libel.

II. If, at the next trial, the plaintiff attempts to justify or excuse the publication, the general rules of- law as to justification or excuse will be found in the opinion of Parker, C. J., in State v. Burnham, 9 N. H. 84, and need not be fully re-stated at this time. The special suggestions, we have now to offer on this branch of the case for the guidance of the court at a new trial, are, in the main’, applications of the doctrines of State v. Burnham to some of the facts of this case; and are not intended as a full statement of the law on the subject of justification.

Conductors of the public press have no rights but such as are common to all. Sheckell v. Jackson, 10 Cush. 25, pp. 26-7. But in this country every citizen has the right to call the attention of his fellow citizens to the mal-administration of public affairs or the misconduct of public servants, if his real motive in so doing is to bring about a reform of abuses, or to defeat the re-election or re-appointment of an incompetent officer. If information given in good faith to a private individual of the misconduct of his servant is "privileged,” equally so must be a communication to the, voters of a nation concerning the misconduct of those whom they are taxed to support and whose continuance in any service virtually depends on the national voice. To be effectual, the latter communication must be made in such form as to reach the public. If the end which Palmer had in view, the controlling, moving purpose of the publication, was to inform the public of the manner in which the war was conducted, for the purpose of inducing citizens to use their influence with government to repress abuses, or to vote for members of Congress and other elective officers who would check such abuses, reform the arnry, stop the war, or conduct it in a more humane manner, his end or motive was justifiable. If the end to be attained is "to give useful information to the community, or to those who have a right and ought to know, in order that they may act upon such information, the occasion is lawful;” Parker, C. J., in State v. Burnham, 9 N. H. 34, pp. 41, 42. If such were Palmer’s motives he is not guilty of libel if the facts he alleged were true, or if he had probable cause to believe, and did believe, that they were truel But if he had no justifiable motive, inasmuch as the natural and inevitable tendency of the publication is to injure and degrade, he is guilty of libel even though the facts alleged in the articles were true. State v. Burnham, 9 N. H. 34, p. 41.

In determining Palmer’s motive, the jury mhy consider the alleged libels as pieces of evidence. This is a question of fact to be decided by the jury "upon an examination of the statement itself, as well as of the extrinsic facts and circumstances.” Gilpin v. Fowler, 9 Exch. 615.

In one respect the views expressed upon this branch of the case may seem to be a departure from the doctrine of Parker, C. J., in State v. Burnham, 9 N. H. 34, p. 42 : "If, upon a lawful occasion for making a publication, he has published the truth and no more, there is no sound principle which can make him liable, even if he was actuated by express malice.” It seems to us that in order to settle whether the occasion was lawful we must generally inquire into the motives of the publisher. There may be some cases where the occasion renders not only the motive but the truth of the communication immatei'ial. Thus it may be the better rule that no relevant statement made by a witness or by counsel in the course of a trial is actionable, even though false and malicious ; see Revis v. Smith, 18 Com. Bench, 126. But in the great majority of instances, and certainly in the present case, the lawfulness of the occasion depends upon the good faith and real purpose of the publisher. Most of what are called "privileged communications” are "conditionally,” not "absolutely,” privileged. "The question is one of good faith” or motive, and can be settled only by a jury. A court cannot rule that a communication is privileged without assuming the conditions on which it is held to be privileged, namely, that it was made in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth; Bigelow, J., in Gassett v. Gilbert, 6 Gray 94, p. 98; Cowen, J., in Cooper v. Stone, 24 Wend. 434, p. 442. This question was substantially left to the jury by Gaselee, J., in Blackburn v. Blackburn, 4 Bing. 395, see pp. 405, 408; by Parke, B., in Blagg v. Sturt, 10 Q. B. 899, p. 904; and in Fairman Ives, 5 B. & Ald. 642; see, also, Parke, B., in Wright v. Woodgate, 2 Cr. M. & B. 573, pp. 577-8.

III. The instruction "that it was immaterial whether the city government, or the police, or the city, could, or ought to, have prevented the destruction of plaintiff’s property” was correct. The liability imposed by the statute is irrespective of any inability or neglect on. the part of the city. Wolfe v. Supervisors of Richmond County, 11 Abbott’s N. Y. Practice Reports, 270. In highway eases towns may defend by showing that the obstruction had existed so short a time that they were not in fault for not removing it before the accident; (see Palmer v. Portsmouth, 43 N. H. 265;) but to allow an analogous defence in suits like the present would in most, instances defeat the object of the statute. Mobs and riots are generally of sudden growth, and the legislature could hardly have intended to make the remedy of the property-owner practically dependent upon the want of secrecy or celerity on the part of the rioters.

IV. The instruction "that it was immaterial whether any of the rioters were citizens of Concord” was correct.

V. The instruction as to damages should be qualified by adding, "so far as such interruption and injury were the direct and natural results of the attack of the mob.”

VI. The definition of "caused” was correct; see instructions to jury in Hooksett v. Company, 44 N. H. 105, pp. 108, 111.

VIL The instructions as to what constitutes "improper conduct,” and as to the effect of want of ordinary care, are the same which have just been sustained by a majority of this court in Chadbourne v. Newcastle, Rockingham, December Term, 1868. That decision., which was concurred in by five members of the court, is adhered to by three out of the four justices who are competent to sit in the present case. I dissented in Chadbourne v. Newcastle, and I now dissent from this confirmation of that decision.

VIII. The instructions as to the burden of proof in respect to illegal and improper conduct were correct. There is no a priori presumption of illegality or impropriety; and where the plaintiff’s own evidence does not disclose any circumstances tending to show illegality or impropriety on his part, it is not incumbent on him in the first instance to offer evidence "for the direct and special object of establishing” the legality or propriety of his conduct in order to make out a prima facie case and avoid a nonsuit. But where there is any evidence tending to show illegality or impropriety, the burden is on the plaintiff to make out his legality and propriety by a preponderance of evidence. We do not propose to review here the somewhat conflicting cases bearing on this subject. A clear statement of the law may be found' in the opinion of Strong, J., in Button v. Hudson River Railroad Company, 18 N. Y. 248, pp. 252-3.

IX. The fact that threats and complaints were communicated to the plaintiff, or that intimations of clanger were given to him, was competent on the question whether he should have given notice. The objection of remoteness in lime is addressed to the discretion of the court at the trial term, and the exercise of that discretion is not subject to revision here; see Holyoke v. Grand Trunk Railway Co., Coos, July Term, 1868,

X. Assuming the correctness of the instructions relative to ordinary eare, <fee., the testimony to show the effect of the articles on the soldiers was admissible on the question of care. The effect actually produced on some individuals would assist the jury in determining the probable and natural effect on the community generally. While the effect of an act may sometimes be such as no one would have foreseen, yet the actual effect may always be weighed as one element of evidence in determining the probable tendency of the act. But the jury should have been told that it was not want of ordinary care in the plaintiff to publish articles which might be expected to inflame drunken (but not sober) people, unless at the time of publication he had reason to believe that the articles would be read by persons who were intoxicated.

This testimony was also competent as bearing on the cause of the destruction of plaintiff’s property.

Case discharged.