Cox v. Strickland , 101 Ga. 482 ( 1897 )

Gober, J.

The official report states the facts.

1. The contention of the defendants, in insisting upon their plea in the present form, embodies two postulates: First, that the defendants have the right to say in a publication concerning the plaintiff, that he was accused of numerous cases of arson in another county whence he had come. It does not appear that this accusation had ever been more than floating slander; these defendants take up what might have been harmless, and, through a newspaper, send it broadcast to the world. To yield this contention is to give up all the law of libel. If it is to be conceded that a newspaper can wholesale slanders and set up their previous circulation as a defense," then whatever protection there is to character from the assaults of the libeller is gone- The reasons to the contrary are primary and obvious. Second, it is contended that the plaintiff is either directly or indirectly connected with the burning of property, because of his having been accused of numerous cases of like character in another county. Stated as a syllogism, we have: There has been a burning of property in Clinch county; Cox was accused of numerous cases of like character in Berrien county; therefore, Cox burned the property in Clinch county. The tyro could point out the fallacy; such reasoning is not only faulty, but it is dangerous.

2. As to the justification, section 3891 is as follows: “In every case of tort, if the defendant was authorized by law to do the act complained of, he may plead the same as a justification ; by such plea he admits the act to be done, and shall be entitled to all the privileges of one holding the affirmative • of the issue; but such plea shall not give to the defendant the right to open and conclude the argument before the jury, unless it is filed before the plaintiff submits any evidence to the jury trying the case.” A plea of justification to a declaration containing several counts, each laying actionable words, goes to the whole declaration, unless the plea is restricted in its terms to certain parts or certain counts; and such plea waives the general issue. No amount of evidence going to negative-malice will wholly defeat the action under a plea of justification, the words being actionable per se and not privileged. Nothing short of proving the truth of the plea will suffice. Henderson v. Fox, 83 Ga. 233. If a material part of a plea of justification fails, the plea fails altogether. Where the charge v/as that the plaintiff had acted for spite and lucre, the defendant justified, but his justification failed as to lucre; held that the charge being entire, the plaintiff was entitled to a verdict; and where a part only of a divisible charge is justified, the defendant is liable for the part not justified. Townshend on Slander and Libel, § 359, p. 602. On the same principle it is held, in an action on the charge of stealing hogs, it is not a good plea that the plaintiff had stolen one hog. Swann v. Rarie, 3 Blackf. (Ind.) 293.

3. A newspaper is not privileged in its publications, but it, is liable for what it publishes, in the same manner as any individual. (Campbell v. Spottiswoode, 8 Law Times (N. S.), 201; Davison v. Duncan, 7 El. & Bl. (King’s Bench), 231; Sheckell v. Jackson, 10 Cush. 26; State v. Banner Publishing Co., 22 The Reporter, 445.) Townshend on Slander and Libel,, 447. The publication of defamatory matter is not privileged because published in the form of an advertisement, or as news, or because furnished by a correspondent, or is copied from other papers. (Robertson v. Bennett, 44 N. Y. Superior Court. Rep. 66; Perrell v. New Orleans Times, 25 La. Ann. Rep. 170; Harrison v. Pirree, 1 Fost. & F. 567; Thompson v. Powing, 15 Nev. 195; Mallory v. Pioneer Press Co., 34 Minn. 521; Bathrick v. Post and Tribune Co., 50 Mich. 629.) Townshend on Slander and Libel, 448.

The right to publish through the newspaper press such matters of interest as may be properly laid before the public does not go to the extent of allowing the publication concerning a person of false and defamatory matter, there being no other reason or justification for so doing than the mere publication, of the news. But false assertions, when they impute the commission of crime, are actionable; and when not based upon any facts legally tending to prove the crime imputed, the publication can not be said to be privileged. It will not do to say that such a publication was made with reasonable care, however good the motive may have been. Newell on Defamation, Slander and Libel, p. 591, § 37.

In popular belief, one man can publish of .another what he sees fit, if, by bluff or otherwise, he can avoid any personal consequences on account of such act; the party aggrieved must either submit or go gunning for the publisher, in order to retain his place in public estimation as a man of honor. Generally the libeller' is not in evidence; his work is done behind the scene; you can not always know his motive. Upon the surface he is the embodiment of fairness — of patriotism — yea, sometimes his religious views almost deter him from the work he is about, but, patriot as he is, he will do the public a service, and often he strikes a better man than he is — a cowardly blow though it be. Character is defined by Webster to be peculiar qualities impressed by nature or habit on a person, which distinguish him from others. The libeller would strip him of these. He wishes him to appear, not in his true character, but in a fictitious one — a character that he would give him. We can understand why a thief would steal — he is after gain; 'so forgery is committed, and other crimes; but from a moral standpoint a man who would destroy character must be ranked along with the felon who commits arson — he can not hope to profit by it; he can not appropriate that of which he deprives another. Character ought to be protected; the law ought to be enforced to protect it. I could not do better than quote just here from the preface to the letters of Junius: “If the characters of private men are assailed or injured, a double remedy is open to them by action and indictment; if through indolence, false shame, or indifference, they will not appeal to the laws of their country, they fail in their duty to society, and are unjust to themselves; if, from an unwarrantable distrust of the integrity of juries, they would wish to obtain justice by any mode of procedure more summary than a trial by their peers, I do not scruple to affirm, that they are in effect greater enemies to themselves than the libeller they prosecute.”

A newspaper is a great power. There will doubtless appear no greater factor in the progress and development of our common country. Some men owe to the press the respect they exhibit for religion and morality; they fear its lash. The newspaper should discriminate; upon its lofty pedestal it should command respect for its high-toned thought, its justice, its conservatism and its moderation. The press should be free; it should not be deterred from its legitimate work. It leads thought; it moulds public opinion; it thinks for the people. Some men have illustrated, this great calling; they have appreciated its duties and obligations; they have lent an ear to the right; their endeavors have kept time to the needs and necessities of the great millions who exemplify the virtue, religion and morality of this country. The man that sits in this high place, athirst for greed and gain; whose opinions depend upon the amount of money he gets in his wallet; who attacks private character when lie is paid to do so, is an usurper and a public enemy. As well might Judas Iscariot exhibit the price of his perfidy as an excuse for his crime, as for a libeller to set up that he published the libel complained of for money. If this plaintiff is guilty of the acts published against him, these defendants had a right to publish them, and they did a public service in doing so. On the contrary, if he is not guilty, and if it is an effort to defame aiid degrade him, the law should not withhold its vindication.

It is not intended to say how this case should be finally determined. Let it be presented to the jury under these rules, and let the truth prevail.

Judgment reversed.