American Publishing Co. v. Gamble , 115 Tenn. 663 ( 1905 )

Mr. Justice Neil,

after making the foregoing statement of facts, delivered the opinion of the court.

Unless tlie court lias itself prohibited the publication, or the subject-matter of the trial be unfit for publication (Newell, Def., S. & L., p. 548, section 150), any one may, without incurring liability for damages, publish the proceedings of courts of justice (Newell on Def., S. & L., p. 544, section 147); and the owners of newspapers occupy in respect of such publications the same status as that accorded to other persons, in no respect higher or different (Fenstermacher v. Tribune Pub. Co., [Utah], 43 Pac., 112, 35 L. R. A., 611; Upton v. Hume [Or.], 33 Pac., 810, 21 L. R. A., 493, 41 Am. St. Rep., 863; Newell, Def., S. & L. p. 552, section 158; Brett, L. J., 46 L. J. C. P., 407; Bramwell, L. J., 5 Ex. D., 56; Salmon v. Isaac, 20 L. T., 886, 3 Times L. R., 245).

The right to publish is subject to the limitation that the report must be a fair one, made in the interest of the public, and without malicious purpose. Newell, Def., S. & L., p. 558, section 166; Ackerman v. Jones, 37 N. Y. Super. Ct., 42; Newell, p. 544, section 148, subd. 3; Saunders v. Baxter, 6 Heisk., 369; Stevens v. Sampson, 5 Ex. D., 53; 49 L. J. Q. B., 120; 28 W. R., 87; 41 L. T., 782; Newell, p. 556, section 162, subd. 7; Waterfield v. Bishop of Chicester, 2 Mod., 118; Newell, p. 556, section 9; Salmon v. Isaac, 20 L. T., 885; Newell, p. 556, section 10. Such report should not be mingled with comment, either in the body of it or in the heading, as in such case the presumption of malice would the more easily arise; the place for criticism of this character is in the editorial columns (Newell, Def., S. & L., c. 20, section 19; Merrill’s Newspaper Libel, 184); and even then tbe comment should be fair and reasonable (Newell, Def., S. & L., c. 20, section 18; Woodgate v. Ridout, 4 F. & F., 223. Reg. v. Tanfield, 42 J. P., 424).

The report need not be a verbatim one, but it must contain the substance of the thing it undertakes to present, or the whole purport of any special, separable part. Newell, p. 552, section 156; Id., p. 554, section 161; Salisbury v. Union & Advertiser Co., 45 Hun (N. Y.), 120; Newell, 545; McBee v. Fulton, 47 Md., 403, 28 Am. Rep., 465; Flint v. Pike, 4 B. & Cr., 473; 6 D. & R., 528; Kane v. Mulvany, Ir. Rep., 26, 2 C. L., 402; Newell, p. 553, section 160, subd. 3; Lewis v. Walter, 4 B. & Ald., 605; Newell, p. 553, section 160, snbd. 4. It must not give undue prominence to inculpatory facts, and depress or minify such facts as would explain or qualify the former (Salisbury v. Union & Adv. Co., supra; Newell, p. 554, section 161; Thomas v. Croswell, 7 Johns. [N. Y.], 264, 5 Am. Dec., 269; Newell, p. 557; Grimwade v. Dicks, 2 Times L. R., 627; Newell, p. 555; Haywood & Co. v. Haywood & Sons, 34 Ch. D., 198; 56 L. J. Ch., 287; 35 W. R., 392; 55 L. T., 729; Newell, p. 555; Dodson v. Owen, 2 Times L. R., 111; Newell, p. 556, S. S. 8), and must not omit material points in favor of the complaining party, or introduce extraneous matters of an injurious nature to him (Cooper v. Lawson, 8 A. & E., 746; 1 W. W. & H., 601; 2 Jur., 919; 1 P. & D., 15; Newell, p. 558; Clement v. Lewis [Exch. Ch.], 3 Br. & B., 297; 3 B. & Ald., 702; 7 Moore, 200; Bishop v. Latimer, 4 L. T., 775; Newell, p. 558).

• In short, the report must he characterized by fair-mindedness, honesty, and accuracy. Newell, Def., S. & L., p. 551, section 155; Stanley v. Webb, 4 Sandf. (N. Y.), 21; JMsall v. Brooks, 17 Abb. Prac. (N. Y.), 221; Id., 26 How. Prac., 426; Newell, p. 545.

If it be found of this character, it is not material that the matter it contains is injurious to the persons involved or referred to therein, since it is of the highest moment that the proceedings of courts of justice should at all times bé open to fair inspection, to> the end that the public may have the means of knowing how the duties of their officers are preformed, whether faithfully and intelligently or otherwise. In the presence of this public requirement mere private interests must give way. R. v. Wright, 8 T. R., 298; Wason v. Walter, L. C. 4 Q. B., 87; 8 B. & S., 730; 38 L. J. Q. B., 34; 17 W. R., 169; 19 L. T., 418; Newell, p. 554, section 147; Cowley v. Pulsifer, 137 Mass., 392, 50 Am. Rep., 318.

Where the published matter is plainly unambiguous, the question of its meaning and character is for the court; but where the meaning is ambiguous, where the words used are reasonably susceptible of two constructions, the one innocent and the other libelous, then it is a question for the jury which construction is the proper one. Newell, Def., S. & L., c. 15, secs. 1, 5.

“In these cases,” says Newell, “there may be two distinct questions for the jury: (1) Is the report fair and accurate? If so, it is prima facie privileged; if not, the verdict must he for the plaintiff. (2) Was the report, though fair and accurate, published maliciously? Was it published solely to afford information to the public and for the benefit of society, without reference to' the individuals concerned; or was it published with the malicious intention of injuring the reputation of the plaintiff? The second question, of course, only arises when the first has been already answered in the affirmative.

“And, of course, there is in each case the previous question for the court, is there any evidence to go to the jury of inaccuracy or of malice? Where there is no suggestion of malice, and no evidence on which a reasonable man could find that the report is not absolutely fair, the judge should direct a verdict for the defendant. Thus where the report is verbatim or nearly so, or corresponds in all materia] particulars with a report taken by an impartial shorthand writer. But, if anything be omitted in the report which could make any appreciable difference in the plaintiff’s favor, or anything erroneously inserted which could conceivably tell against him, then it is a question for the jury whether such deviation from absolute accuracy makes the report unfair; and the trial judge will not direct a verdict for either party.” Id., pp. 558, 559, section 166.

It is generally agreed that the privilege, the right to publish without liability for damages, does not extend to mere pleadings filed in court, as, for example, bills in equity upon which there has been no judicial action. Park v. Detroit Free Press Co., 72 Mich., 560, 568, 40 N. W., 731, 1 L. R. A., 599, 16 Am. St. Rep., 544; Cowley v. Pulsifer, 137 Mass., 392, 50 Am. Rep., 318; Barker v. St. Louis Dispatch Co., 3 Mo. App., 377. The reason for this rule is thus stated in Park v. Detroit Free Press Co.: “There is no rule of law which authorizes any hut the parties interested to handle the files or publish the contents of their matters in litigation. The parties, and none but the parties, control them. One of the reasons why parties are privileged from suit for accusations made in their pleadings is that the pleadings are addressed to courts Avhere the facts can be fairly tried, and to no other readers. If pleadings and the documents can be published to the world by any one who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting these printed as news. ... A suit thus brought with scandalous accusations may be discontinued without any attempt to try it, or on trial the case may entirely fail of proof or probability. The law has never authorized any such mischief.” 72 Mich., 568, 569, 40 N. W., 734. Of publications of pleadings containing injurious-matter at the mere incipiency of the litigation it is said: “They possess no privilege, and the publication must rest on either nonlibelous character, or truth,, to defend it.” 72 Mich., 568, 40 N. W., 734.

However, the rule of privilege, in general, covers proceedings which are in their nature only preliminary if any judicial action has been bad tbereon. Newell, Def., S. & L., c. 19, section 149, note; Id., 152, 153, and notes; Odgers on Libel and Slander (3d Ed.), pp. 278, 279; Townsend on Slander and Libel, p. 361; note to McAllister v. Detroit Free Press Company, 15 Am. St. Rep., 363; 364; McBee v. Fulton, 47 Md., 334, 28 Am. Rep., 465; Metcalf v. Times Publishing Company, 20 R. I., 674, 40 Atl., 864, 78 Am. St. Rep., 900.

In the case last mentioned the special phase of the question we now have before ns was considered and decided. It was there held that, after a bill in equity had been submitted to a judge at chambers on an application for a preliminary injunction, and the order had been granted, this was such judicial action as rendered the bill matter of privileged publication. Said the court: “It is a matter submitted to a judge, and he acts upon it. It is within the rule, and the cases which we have referred to. . . . If this was not judicial action, it would be difficult to say what would be, short of a full trial of the case.-. Although the motion was in chambers, still, under our practice, as all such motions and interlocutory orders are made in chambers, technically we cannot say that it Avas not id court.” 20 R. I., 679, 40 Atl., 866, 78 Am. St. Rep., 900. And see the discussion of the general subject in McBee v. Fulton, 28 Am. Rep., 464-474. On page 473 it is said, quoting the judgment of Cockburn, C. J., in Wason v. Walter, L. R. Q. B., 73: “Whatever disadvantages attach to a system of unwritten laAv, and of these we are fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adopt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has in many respects only gradually developed itself into anything like a satisfactory and settled form. The recognition of the right to publish the proceedings of courts of justice is of modern growth. Till a comparatively recent time the sanction of the judges was thought necessary even for the publication of the decisions of the courts upon points of law. Even in quite recent days judges in holding publication of the proceedings of courts of justice lawful have thought it necessary to distinguish what are called ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this court, as, for instance, our applications for criminal information, are published every day, but such a thing as an action or indictment founded on a report of such an ex parte proceeding is unheard of. If any such action or indictment should be brought, it would probably be held that the true criterion of the privilege is not Avhether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the information of the public, and innocent of all intention to do injury to the reputation of the party affected.”

Applications for preliminary injunctions are in this state usually of the same ex parte character described in the Rhode Island case, and under this practice the hill referred to in the present case was presented to Judge Cartwright, and the fiat was granted by him. The granting of that fiat was a judicial act. The hill, therefore, after haying been made the subject of such action, and upon thereafter having been placed in the files of the chancery court, became a paper which might be published within the protection of the privileged list.

We shall'now apply the foregoing principles, so far as may be necessary, to the questions raised by the assignments of error.

We shall pretermit any discussion of the matters contained in the first and second assignments.

r^The third assignment makes the point that the circuit judge erred in charging the jury as set forth in the propositions marked (A), (B), and (C), in the statement. The instructions thus given were, in substance, that the publication complained of was, on its face, libelous, that ■ is was not privileged, and that the defendant below was • liable in damages therefor.

We are of the opinion that his honor acted correctly. in instructing the jury that the publication was libelous on its face, since it stated matter which would support a charge of fraudulent breach of trust against the plaintiff in error, which is a felony nnder the statutes of this state.

His honor acted incorrectly in instructing the jury unconditionally that the matter contained in the publication was not privileged. He should have given them in charge the first, second, and fifth instructions appearing under the fourth assignment of errors, and should at the same time have construed to the jury the language of the bill, also the language of the publication. It is the duty of the court to construe “unambiguous writings upon which the rights of parties are based.” Quigley v. Shedd, 104 Tenn., 560, 566, 567, 58 S. W., 266; Railway v. Wynn, 88 Tenn., 321, 14 S. W., 311; Barker v. Freeland, 91 Tenn., 112, 18 S. W., 60; Toomey v. Atyoe, 95 Tenn., 373, 32 S. W., 254; Railroad Co. v. McKenna, 13 Lea, 280; Kendrick v. Cisco, 13 Lea, 247. Having so construed the writings, he should have left it to the jury to say whether the matter as actually published was a fair and substantially accurate report of the contents of the bill, and without actual malice; and upon this basis should have placed the question of privilege or nonprivilege, liability or nonliability.

We do not think his honor erred in refusing to charge the third instruction appearing under the fourth asssignment of error. The jury would necessarily determine the matter therein referred to in deciding whether the publication complained of was a fair and substantially accurate report of the bill, and this they will be enabled to do in tlie next trial when instructed according to the directions contained in the preceding paragraph.

The court helow did not err in refusing to charge plaintiff in error’s fourth instruction. The error in this instruction was that plaintiff in error thereby sought to haye his honor charge the jury that the publication complained of was, in all its material particulars, substantially a repetition of the allegations contained in the chancery bill, thereby asking the court to usurp the functions of the jury. As already indicated, it was the duty of the court to construe the bill and also the publication, and then leave it to the jury to say whether the latter was a fair and substantially accurate report, or reproduction of the former.

The proposition in respect of malice, contained in the instruction referred to, would also have been misleading to the jury if given in union with the erroneous matter just referred to. They were sound only upon the hypothesis that the jury should find that the publication contained a fair and substantially accurate report of the contents of the bill upon the subject referred to in such report. If the publication failed, in the estimation of the jury, to come up to this description, then it could not be held privileged, and, being libelous on its face, malice in law would be presumed. If it did attain the plane of privilege, then plaintiff in error could be held liable only upon proof of express malice as set forth in the instruction under examination. We assume that it was the purpose of the instruction to call the attention of the jury to the subject of express malice, as distinguished from implied malice, or malice in law, but this is not done with sufficient clearness.

The sixth instruction, appearing under the fourth assignment, was properly refused, because too general. It is not sufficient to instruct the jury merely that, if the publication was made “in good faith” and without express malice, they should find for the defendant. They should be instructed as to the nature of this good faith, which embraces, not only the absence of express malice, but also the positive, virtue of a fair, impartial, and substantially accurate report of the proceeding which is the suject of the publication.

The court below did not err in refusing the seventh instruction. The charge as given sufficiently covered the question of damages.

The fifth assignment must be sustained. The testimony therein referred to was incompetent. 1 Elliott on Ev., section 252. It consisted merely of statements made by a reporter of the Nashville American, after the publication had appeared in the paper, expressing Ms opinion that the chancery bill was capable of two constructions, and giving the reason why he had adopted the one construction rather than the other in preparing Ms matter for the press. . This was merely the narrative of a past transaction, not the statement of an agent while in the active discharge of his duty as such, and in respect of matters then in course of dispatch. Nor was the testimony rendered competent through the statement made by Mr. Kane, to tbe effect that he had seen Col. Gamble’s publication in the Nashville Banner, and had thereby been induced to make a second examination of the chancery bill with a view to ascertaining whether he had been mistaken in his first construction. It is insisted that this testimony was competent for the purpose of showing that the Nashville American had knowledge of the false character of its publication before the suit was brought, and yet had not published a retraction. It is not shown in the evidence that Mr. Kane stood in such relation to the plaintiff in error as that notice to' him, after the transaction, would be notice to his employer. The mere fact that he was the reporter who had furnished the objectionable matter would not be sufficient.

We have considered the other reasons offered in defendant in error’s brief in support of the competency of the evidence, and find none of them well taken.

For the errors indicated, the judgment of the court below must be reversed, and the cause remanded for a new trial.