Bearce v. Bass

Foster, J.

This is an action of libel brought by the plaintiffs for the recovery of damages for defamation of themselves in their business, as contractors, against the defendants as proprietors of the Bangor Daily Commercial, by means of an article published in that paper, on March 28, 1894.

A verdict of $1508.03 was found for the plaintiffs, and the case comes before this court upon motion and exceptions by the defendants.

The publication of the alleged libel was during the progress of a municipal campaign in Bangor in which the election of F. O. Beal for mayor was then pending. The plaintiffs had contracted to build the Bangor City Hall, a public building designed to be used and occupied by the government of the city for public purposes, estimated to cost one hundred thousand-dollars, but ultimately costing considerable more than that amount. The mason work had been suspended during the cold weather, and at .the time of the publication of the alleged libel, the building, although in the process of construction, was in an incomplete and unfinished condition. The character of the construction of such a building was a matter of public importance and of interest to the inhabitants and tax-payers of Bangor and was, therefore, a matter of legitimate public discussion by the defendants as well as all others who had, in common with the rest of the community, a public and a private' pecuniary interest in this important public work.

While the construction of this building was in progress, and while an election for mayor was pending, who was to be ex officio chairman of the building committee, an article was published by the defendants in their paper, and that portion of which claimed to be libelous, is as follows :

" The mason work is of the poorest quality and it should not be accepted by the city. Too much sand has been used in the mortar, and to such an extent that it does not prevent the alkali, which is the life of the mortar, from running out, as can be seen by the white appearance of the building. Very many of the bricks are loose, the mortar being too lifeless to hold them together, and the contractors should be obliged to take down and replace the imperfect sections of the walls.

"The doings of the old Tweed ring in New York, were no worse than much that has been done in connection with our city building.”

The defendants contend that these words are not actionable and constitute no libel upon the plaintiffs in the way of their trade, business or occupation as contractors as alleged; and, moreover, that the last allegation does not refer to them ; and that the article as a whole is only fair and reasonable comment and criticism upon a public work made to the public by interested citizens and tax-payers.

Two things are necessary for the maintenance of this defense. First, that the comment or criticism upon the plaintiffs’ work should be fair and reasonable: Second, that it should be without malice toward them individually or in their business as contractors.

The question is, therefore, w'hether the the language used imports any personal reflection or attack upon the character of these plaintiffs, either as individuals or in their business as contractors, or whether it is merely a disparagement of the work done by them.

Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously. Thus it has been held that-books, prints, pictures and statuary publicly exhibited, and the architecture of public buildings, are all the legitimate subjects of newspaper criticism, and such criticism, fairly and honestly made, is not libelous, however strong the terms of censure may be, without the averment and proof of special damage, unless it goes further and attacks the individual. Dooling v. Budget Publishing Co. 144 Mass. 258; Gott v. Pulsifer, 122 Mass. 235; Tobias v. Harland, 4 Wend. 537; Western Counties Manure Co. v. Lawes Chemical Manure Co. L. R. 9 Ex. 218; Merivale v. Carson, 20 Q. B. Div. 275.

In Crane v. Waters, 10 Fed. Rep. 619, it was held that the safety of a bridge on the line of a railroad was matter in which the public were concerned; and that a newspaper might discuss the construction of the bridge, even though the effect of such discussion and criticism was, to some extent, a reflection upon the character of the builder.

So, too, upon the same principle, it has been held to be within the proper limits of criticism to publish of a newspaper that it is the most vulgar, ignorant and scurrilous journal ever published in Great Britain; for this affected the character of the newspaper only, and not, except remotely, the character or reputation of the person publishing- it. Heriot v. Stuart, 1 Esp. 437.

The cases are numerous where this principle has been applied, and the doctrine upon which they are founded is one of universal application, that the public convenience is to be preferred to private interests, and that every man has a right to discuss freely, so long as he does it honestly and without malice, any subject in which the public are generally interested, and to state his own views for the consideration of all or any of those who have a common interest in the subject. Henwood v. Harrison, L. R. 7 C. P. 606, 621, 622.

Applying this rule to the case at bar, we think the language complained of is but a fair and reasonable criticism . upon the work which entered into the construction of this public building. The mason work is criticised as being of the poorest quality, and ought not to be accepted by the city. The mortar is criticised as containing too much sand. Criticism is ajso made that very many of the bricks are loose, the mortar being too lifeless to hold then together, and that the imperfect sections of the wall should be taken down by the contractors. No attack is made upon the character of these plaintiffs, either as individuals or in their business as contractors. The criticism is not of them, but of the work done by them.

But the plaintiffs contend that these assertions charge the plaintiffs with not doing the work according to contract, and that, therefore, the words become defamatory of the plaintiffs in their business. If this he true, then it must follow, as a legal conclusion, that no criticism however fair and reasonable could ever he made upon the work which entered into the construction of any public building, built under contract. To say that an individual, or the public press, should be dumb upon a matter which is of public interest, on the ground that any criticism would impute a breach of contract, and consequently affect the business of the contractors, would amount to an abrogation of that rule of law to which we have referred; and deprive the public of the right of criticism altogether, and that too, in reference to matters in which individuals, cititizens and taxpayers have a common interest.

Certainly, such comment or criticism would seem to be fair and reasonable when temperately written and applied to a state of facts such as this case develops, — for a full report of the evidence in relation to the construction of the building is before us, — and where the language of the criticism does not go beyond the work and attack the person.

It is sometimes said that fair and honest criticism in matters of public concern is privileged. But this is not true in a strict legal sense. The distinction between fair and reasonable comment and criticism, and privileged communications, is this. That in the latter case, the words may be defamatory but the defamation is excused or justified by reason of the occasion; while in the former case, the words are not defamatory of the plaintiff, and hence not libelous,— the stricture or criticism is not upon the person himself, but upon his work. So long, therefore, as the criticism is confined to his work and does not attack the moral character or professional integrity of the individual, and is fair and reasonable, there is no libel because there is no defamation of the man himself. But, when the comment or criticism of the man’s work becomes an attack on his private or business character, then the element of malice comes in and stamps the language as libelous. Fraser v. Berkeley, 7 C. & P. 621.

In this case, it is conceded that the defendants bore no malice whatever toward these plaintiffs, the evidence being that they were not acquainted with each other and never had either social or business relations. If, therefore, the defendants’ criticism of the plaintiffs’ work was fair and reasonable, and had no reference to their private or business character, and there was no pi’oof of actual malice on the part of the defendants towards the plaintiffs, then, however much malice may have existed between the defendants and Mr. Beal, cannot make the defendants’ criticism libelous. If the criticism of the defendants was fair and reasonable and in reference to a matter of public concern, and the plaintiffs are not attacked either in their private or business reputation, then it constitutes no libel because not defamatory; and it cannot be made libelous by any attack upon the private or business reputation of some person other than the plaintiffs, no matter to what extent such malice may exist. Odgers on Libel, 39, 268. Newell on Libel, 324.

Moreover, we are of opinion that the alleged libel was a privileged communication. The principle applicable to cases in which th§ claim of privilege is set up is well settled. The difficult}’' more frequently lies in its application.

In general, an action lies for the publication of statements which are false and injurious to the character of another, for the reputation and character of individuals should not be wantonly and unnecessarily assailed. And the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs where his interest is concerned. In regard to matters of public interest, all that is necessary to render the words spoken or published privileged is, that they should be communicated in good faith, without malice, to those who have an interest in the subject matter to which they refer, and in an honest belief that the communication is true, such belief being founded on reasonable and probable grounds. In such cases, the occasion rebuts the inference of malice, which the law would otherwise draw from unauthorized communications, and affords a qualified defense depending upón the absence of actual malice. If fairly warranted by any such occasion or exigency as we have named, and honestly made, upon reasonable and probable grounds, such communications are protected for the common protection and welfare of society.

Upon a careful consideration of the circumstances attending the publication of the article in question, as disclosed from the evidence offered at the trial, we feel warranted in the conclusion that the occasion was one that rendered the publication justifiable and privileged. The defendants -were citizens, tax-payers and publishers of a newspaper in Bangor. The city building was then in process of construction. It had not been accepted by the city. There was indubitable evidence that the mason work was of poor quality and not in conformity to the contract; that the mortar used in the construction of certain parts of the building and the foundation walls was poor and lifeless and in many instances the bricks were loose, on account of the inferior quality of the mortar.

The building was of a public nature in which not only the defendants but every citizen of Bangor was interested. Tt was a legitimate subject of criticism by those interested in its construction.

The people- have a right to know how their municipal affairs are being conducted ; how the money which they have contributed by way of taxes is being expended ; arid they have a right to know how the duties of those whom they have entrusted with the expenditure of such money are being performed, and it is one of the privileges of newspapers to give the people this information; and if the information so given is true, or if the publishers act in good faith, without malice, believing it to be true, and have reasonable and probable cause for so believing, the law protects them. Gott v. Pulsifer, 122 Mass. 235.

When the matter complained of is privileged, the burden of proving malice lies on the plaintiff, and the defendant cannot be called on to prove that he was not actuated by malice until some evidence of malice more than a mere scintilla has been adduced by the plaintiff.

In this ease we are unable to discover any evidence of malice between the defendants and the plaintiffs. There is nothing upon which a verdict could legally be sustained, and if there is evidence of any malice, it relates to other parties than these plaintiffs.

In relation to that portion of the alleged libel wherein the "Tweed ring” is referred to, all that need be said is, that it is not susceptible of the meaning ascribed to it by the plaintiffs’ innuendo.

By no fair construction of the article can these words be held to apply to the plain tiffs, or either of them. The whole trend of the article is in another direction. The plaintiffs are not spoken of; their names are not given, nor is there any reference to their occupation, directly or indirectly.

The rule is too well settled to need citation of authority, that an innuendo " is only explanatory of some matter already expressed ; it serves to point out when there is precedent matter, but never for a new charge ; it may apply to what is already expressed, but cannot add to, or enlarge, or change the sense of the previous words.” 1 Ch. Pl. 407 ; 1 Wm. Saunders, 243 a n. 4; Emery v. Prescott, 54 Maine, 389.

It is the province of the court to determine in the first instance whether the language published is reasonably susceptible of the meaning ascribed to it by the plaintiffs’ innuendo. If it is not susceptible of such meaning, and the language is not upon its face defamatory of the plaintiffs, then they have no ground of action in reference to that particular charge.

The construction to be put upon this particular part of the alleged libelous publication must be that which is consistent with the whole article, that which follows as well as that which precedes. When viewed in this light, it will be found that it will not reasonably bear the meaning attributed to it by the innuendo. The plaintiffs’ whole scheme of defamation, upon this point, depends upon the alleged charge of conspiracy between the agents or servants of the city of Bangor and themselves, in pursuance of which they were to corruptly divide with them the proceeds arising from their contract to build the city hall. This is the interpretation they place upon the language by their innuendo, and by it they are bound. Williams v. Stott, 1 Cr. & M. 675. But there is no suggestion of the charge of conspiracy to be found anywhere in the published article, either to divide the proceeds of the contract or anything else; nor does it attribute the ill treatment of the local contractors to these plaintiffs either directly or indirectly. On the contrary, it excludes the plaintiffs from such an imputation by charging the whole matter upon the mayor who was then a candidate for re-election.

The interpretation which the plaintiffs have seen fit to ascribe to it is contrary to the whole spirit of the publication, and perverts the idea which its language plainly conveys. It contains no insinuation of fraud, or criminal intent, or moral turpitude on the part of the plaintiffs. It does arraign the mayor, charging him with bossism, with a contemptuous indifference to public opinion and the rights of the public, with an arrogant assumption of power and control over the disposition of submitted bids, and censures his methods, calling him king boss and charging him as responsible for the alleged unfair treatment of the local contractors. It compares these acts of his with the doings of the Tweed ring.

It is the opinion of the court that the motion for a new trial should be sustained and a new trial granted.

Motion sustained.