Opinion
No. 3805.
Decided February 1, 1949.
Criticism of so much of another's activities as are matters of public concern is privileged if the criticism, although defamatory, 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 represents the actual opinion of the critic and is not made solely for the purpose of causing harm to the other. While it is a question of law whether certain words are capable of a defamatory construction, whether that was the sense in which they were used is a question of fact. A statement may be conditionally privileged even though it is not true if made without malice.
ACTION OF CASE to recover damages for libel of the plaintiff, a physician residing in New Hampshire and licensed to practice in Vermont. The defendant, Lincoln O'Brien, was the publisher of the Claremont Eagle, Inc., a newspaper owned, controlled and published Claremont, New Hampshire, by the defendant, Claremont Eagle, Inc. The libel is alleged to be contained in the publication on June 13, 1946 in the Claremont Eagle of a letter to the editor written by the defendant, John Francis Rogers, an editor's footnote to said letter and an editorial commenting on said letter. Trial by jury with verdict for the defendants.
Prior to the trial it was agreed that the question whether or not the words used were defamatory in and of themselves, was a question of law for the Court. The Court ruled, subject to the defendants' exception, that the publications were defamatory and that they were also actionable per se. It was further agreed that the articles were published by the defendants and referred to the plaintiff.
Prior to the trial the plaintiff moved that the Court rule that as a matter of law there was no lawful occasion upon which the defendants could comment on the conduct, actions or statements of the plaintiff, Dr. Blanchard. This motion was denied, subject to the plaintiff's exception. At the conclusion of all the evidence the plaintiff moved to withdraw from the jury the issue of justification. This motion was denied, and the plaintiff excepted. After a verdict for the defendants the plaintiff seasonably moved to set aside the verdict and for a new trial, which motion was denied, subject to the plaintiff's exception. All questions of law raised by the foregoing exceptions were reserved and transferred by Grimes, J.
The publications complained of were (1) a letter to the editor (2) editor's note and (3) an editorial as follows:
(1) "To the Editor:
"This letter is being written in the hope that it will speak for itself.
"Sunday afternoon while out for a ride with my family, my child, aged three years, was quite seriously injured in an accident.
"Knowing of a doctor, who had practised in Windsor, Vt., but who resided in Cornish Flat, near the place where the accident happened, I decided the quickest way to find out the seriousness of the child's injuries was to go to this doctor immediately.
"Upon arriving in the doctor's yard, I took my child in my arms, as his head was bleeding quite badly, and went to the door. The doctor's wife who is also classified as a doctor, answered my knock.
"I told her of the child's injuries, and asked her for help. She said she would consult the doctor and left the door.
"The doctor came to the door a few minutes later and said he was sorry but owing to the fact that he did not practice outside of his office, he could not look at or bandage the child's head.
"Knowing that the nearest doctor would be in Claremont, some eight miles away, he advised me to find another doctor to care for the child.
John Rogers, Claremont."
(2) "(Ed. Note: The doctor involved informs the Daily Eagle that he does not hold a practicing license for New Hampshire, and consequently any treatment, including first aid, would be a violation of New Hampshire laws.)"
(3) Editorial.
"A SILLY, DANGEROUS LAW
"If it is true, as we are reliably informed, that New Hampshire law is so strict that it forbids an out-of-state physician to render first aid to an accident victim in an emergency, such a law is not only silly but also dangerous.
"In such a case as that described elsewhere in today's issue, a motor accident had occurred and a small child was injured and bleeding. Yet a doctor living near the scene was forced to tell the distracted father that, due to the fact he was not licensed to practice in New Hampshire, it would be illegal for him to treat the child or even render first aid.
"Legal regulation of physicians and surgeons is, naturally, necessary but certainly, in any case of accident or disaster, such regulations should be waived. Any doctor should be permitted to render first aid in an emergency without fearing that he might be technically breaking the law. It would be as senseless for a hospital to refuse to admit victims of an accident which occurred in the street outside, simply because arrangements for admission had not been made in advance.
"If New Hampshire has a law which will let accident victims suffer until a New Hampshire physician reaches the scene, it should be altered at the next legislative session. And the same goes for Vermont or any other state."
Buckley, Zopf Hamlin (Mr. Robert B. Buckley orally), for the plaintiff.
Leahy Denault (Mr. Albert D. Leahy orally), for the defendants.
For the most part any thoughtful consideration of the present state of the law of libel either begins or ends with a combined apology and lament. Without unduly expanding this conclusion with many supporting citations (see Swindler, A Bibliography of Law on Journalism (1947) 56-76) the following quotation is typical and representative. "It must be confessed at the beginning that there is a great deal of the law of defamation which makes no sense. It contains anomalies and absurdities for which no legal writer ever has had a kind word, and it is a curious compound of a strict liability imposed on innocent defendants, as rigid and extreme as anything found in the law, with a blind and almost perverse refusal to compensate the plaintiff for a real and very serious harm. The explanation is in part one of historical accident and survival, in part one of the conflict of opposing ideas of policy in which our traditional notions of freedom of expression have collided violently with sympathy for the victim traduced and indignation at the maligning tongue. . . . No very comprehensive attempt ever has been made to overhaul and untangle this entire field of law, and, unhappily, there seems to be none in prospect." Prosser, Torts (1941) s. 91. A recent exception to the last sentence is Chafee, Possible New Remedies for Errors in the Press. 60 Harv. L.Rev. 1.
A commendable approach to the problem of upholding the freedom of the press to report and comment on matters of community interest on the one hand and protecting the individual's right of reputation in his trade, business or profession on the other hand has been made in the Restatement of Torts. "Criticism of so much of another's activities as are matters of public concern is privileged if the criticism, although defamatory 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 represents the actual opinion of the critic and is not made solely for the purpose of causing harm to the other." S. 606 (1). Comment a refers to certain traditional matters of public concern including also medical associations (s. 608, comment e) and then continues: "This is not intended to constitute a complete category of matters of such public concern that comments thereon are thus protected. There may be other subjects of comment and criticism which are accorded similar protection." In comment c the point is made that the criticism may be privileged although not reasonably warranted by the facts because of the public interest in free interchange of opinion.
A case involving the present factual situation has not been found. It is to be noted, however, that the statements in this case are substantially different from those held libelous respecting physicians in the annotation in 124 A.L.R. 553.
The publications, taken as a whole, are susceptible of more than one construction. Thus the plaintiff argues that they charged professional misconduct and reflected on his professional character. The defendants take a contrary view and say that the publications in their entirety were an attack on a law which was detrimental to the health and welfare of the community. While it is a question of law whether certain words are capable of a defamatory construction, "whether that was the sense in which they were used is a question of fact." Richardson v. Thorpe, 73 N.H. 532, 534. Since this is not a case where comment respecting a professional man is capable only of a libelous meaning (Giles v. Clarke Co., 69 N.H. 92), the court properly allowed the jury to determine in what sense they were used by the defendants. If used in the sense contended for by the plaintiff, there was no privileged criticism or privileged occasion. If used in the sense contended for by the defendants, it was for the jury to determine whether the criticism represented an honest opinion expressed for a proper purpose and whether the defendants did or did not abuse a conditionally privileged occasion. Restatement, Torts, ss. 618, 619.
It was subsequently discovered that the state law did not prohibit treatment by non-licensed doctors in "cases of emergency." R.L., c. 250, s. 18. But it is well settled in this state that a statement may be conditionally privileged even though it is not true if made without malice. Moore v. Butler, 48 N.H. 161, 165; Lafferty v. Houlihan, 81 N.H. 67; Slocinski v. Radwan, 83 N.H. 501. If the defendants did not know of the law or were mistaken about it, there is evidence that the newspaper checked with plaintiff and received evidence from him which led it to believe that this non-existent law played some part in the incident. R.L., c. 391, s. 6. It was to be considered by the jury along with plaintiff's statement: "I can't make an examination, my instruments for examining are in my office in Vermont, and I have no license to establish an office in New Hampshire."
The inability of members of a community to receive emergency care and first aid is not entirely a private matter of the person injured. R.L., c. 51, s. 4, pars. VI, VII, VIII and XXIII. While that may not create a legal duty for newspaper comment, there may be a social or moral duty to inform the public if done with good motives and for a proper purpose. Any contrary rule "would be foredoomed to practical failure as an attempt to decree that men and women shall not act like human beings." Slocinski v. Radwan, supra, 505. History and experience give us examples of both the "silly" and the "dangerous" caused in part by legislatures and courts upon which the spotlight of criticism and comment may have a healthy effect. Freedom of discussion is not to be confined within narrow limits although its outer boundaries are circumscribed by the law of libel. Mencher v. Chesley, (N.Y.), 75 N.E.2d 257.
Plaintiff's exceptions are overruled and in view of the result reached it is unnecessary to consider defendants' exceptions.
Judgment on the verdict.
All concurred.