Citation Numbers: 34 A.2d 99, 113 Vt. 272
Judges: BUTTLES, J.
Filed Date: 10/5/1943
Status: Precedential
Modified Date: 1/13/2023
The plea to which the plaintiff has demurred, alleges in substance that the publication truly stated the facts that the plaintiff recovered damages of $6,800. in an action against her son, for injuries sustained in an automobile accident; that the son was insured against public liability for personal injuries, and that the insurance carrier was compelled to pay and did pay the amount of the judgment. It also alleges that the only source of the insurance carrier's income for the payment of claims and judgments against the policy holders was the premiums paid by them; that the action, the identity of the parties, their relationship to each other and the size of the verdict were matters of importance, concern and interest to all persons residing in the territory through which the defendant's newspaper circulated, and to the public in general; that the language complained of together *Page 279 with any meaning that might fairly and reasonably be ascribed to it constituted fair and reasonable comment upon and criticism of a matter of public interest and importance, and were not intended to be understood, and could not be understood as a statement of facts; that the defendant had no animosity or ill will against the plaintiff and no intention of injuring her, but was moved solely by a desire to call the attention of its readers and the public in general to a matter of public interest and importance and to set forth in good faith and without malice its views, comments and criticisms thereon.
The demurrer appears to be based upon the ground that the entire article is clearly libellous and cannot in any event be classed as fair and reasonable comment.
The majority of this court have taken this view, but I am far from being satisfied that the issue here presented can be so adjudged as a matter of law. I concede that the article is susceptible of being construed as actionable libel. A jury may well find that, taken as a whole, and understood as people in general would understand the language used, it amounts to an imputation that the plaintiff instituted and maintained an unfounded and collusive action against her son, with the motive and result of defrauding a liability insurance company. But it seems to me that another interpretation may reasonably, and without resorting to a construction in mitiori sensu, be put upon it.
The demurrer admits the truth of the allegations of the plea to the effect that action brought by the plaintiff against her son, the relationship of the parties and the size of the verdict, were matters of public interest and importance, and that the defendant acted in good faith and without malice or ill will toward the plaintiff or intention to harm her.
I would hold that the article may be reasonably understood as an expression of the opinion of the writer concerning tort actions, arising from automobile accidents, between near relatives, where the damages recovered must be paid by liability insurance companies, and, without the imputation of anything wrong or illegal in the conduct of the plaintiff in the particular instance, calling attention to the danger of collusion and fraud in proceedings of this nature. That the criticism may, in the opinion of others, be unsound or prejudiced does not destroy the privilege, and the extravagant *Page 280
form of its expression is unimportant. So long as a newspaper writer states his actual opinion, on a matter of public concern, based upon a true statement of facts, and without the sole purpose of causing harm to another he cannot be held liable for what he writes and causes to be published, although it may be defamatory. Am Law Inst. Restatement of Torts, vol. 3, para. 606, and comment c. "A comment is fair when it is based on facts truly stated and free from imputations of corrupt or dishonorable motives on the part of the person whose conduct is criticised, and is an honest expression of the writer's real opinion or belief." Briarcliff Lodge Hotel, Inc., v. Citizen-SentinelPublishers,
I am authorized to say that Mr. Justice Jeffords concurs in this dissent.
On leave, duly obtained, counsel for the defendant have filed a motion for reargument, pending which the entry of judgment has been withheld. The defendant complains that we have not more specifically considered the claim made in its brief to the effect that the allegation of its answer that the objectionable portion of the publication "together with any meaning or innuendo which may fairly and reasonably be ascribed thereto was and constituted fair and reasonable comment upon and criticism of a matter of public interest and importance", is itself a statement of fact which is admitted by the plaintiff's demurrer. This contention is referred to briefly in the second paragraph from the end of the foregoing opinion. In its motion the defendant also asserts that we have misapprehended the meaning of Section 606 of the Restatement of Torts.
It is well settled that a demurrer admits the facts that are well pleaded, but it does not admit the conclusions of law made in the plea. State v. Bissell,
One such necessary qualification is, as stated in the opinion, that the comment must not go further than the occasion or the acts commented on warrant, or, as stated in Sec. 606 of the Restatement of Torts, from which the opinion quotes, such criticism is privileged if it is upon a true or privileged statement of fact or upon facts otherwise known or available to the recipient as a member of the public, and if it meets the other requirements therein set forth. It is true, as suggested, that Comment C under the same section contains the statement: "Unlike a personal attack upon a public man, . . . the fact that comment or criticism is one which is not reasonably warranted by the facts upon which it is based is immaterial." But the significance of the words "facts upon which it is based" is indicated by the further statement in the same comment under that section that "it is necessary, however, that the comment have some relation to the facts upon which it is made. If it has not it may well be taken to imply the existence of other undisclosed defamatory facts."
Let it be assumed, to take a simple illustration, that in such a publication the fact stated is that A has taken a deed to be recorded in the office of recorder B, which is the proper office for such record, and that it is further stated, or is a matter of common knowledge, that B has in the past been guilty of dishonesty and that *Page 282 forged deeds have theretofore been recorded in that office. Such facts, without more, would not, we take it, be a sufficient basis for comment stating or implying that A had forged the signatures to his deed. So here the fact that the plaintiff has seen fit to resort to a court of law for a purpose which, so far as appears, was an entirely proper one, together with the other facts stated in the publication, do not constitute a sufficient basis for defamation of the plaintiff. The necessary relation can be established only by "implying the existence of other undisclosed defamatory facts." If we could take judicial notice of all the facts which the defendant suggests were matters of common knowledge, such as the claimed excessive amount of litigation of this character in Rutland County, the suspected unprofessional solicitation by some attorneys of cases of this kind, and the hint, if such it is intended to be, of judicial laxity, the defendant's case here would not, in our opinion, be aided thereby. The necessary relation of the charge made against this plaintiff to the facts available still would not be established. That is there would still be a non sequitur. This, we judge, is in accordance with Mr. Seelman's contention that the true test is inferability. See discussion on pages 236-237 of that author's work on the Law of Libel and Slander in New York.
It is said in State v. Colby,