Summary
In Howland v. Blake Manufacturing Co., 156 Mass. 543, 31 N.E. 656, a civil action, it was held that where no previous publication had been made, if the fact appear that the publication of the alleged libel was procured through the agency of a person acting for the plaintiffs and at their request, the publication was privileged.
Summary of this case from Richardson v. GunbyOpinion
Argued May 27, 1892.
Decided, June 22, 1892.
1. The first contention of the plaintiffs is that the answer is insufficient to authorize the introduction of evidence of the truth of the various allegations contained in the alleged libel. It is argued that the answer, taken in connection with the declaration, does not definitely show what the defendant [**657] intends to prove in justification. If the plaintiffs had had difficulty in knowing for what to prepare under this answer, they might have moved for a more specific statement, and it would have been in the power of the court to make such an order as would amply protect their rights. In the absence of such a motion, the defendant could properly assume that evidence would be received tending to prove the truth of any [*568] statements made in the alleged libel, and it would have been unfair to the defendant to exclude its evidence on an objection first interposed at the trial. McLaughlin v. Cowley, 127 Mass. 316 .
2. The defendant introduced evidence tending to show that the plaintiffs failed to perform their contract with the town of Maynard, and that they supplied and endeavored to supply work and materials inferior to those called for by their agreement. The plaintiffs then offered evidence of their business reputation and of their individual reputation before they entered into the contract.
There has been a great variety of opinion on the question how far a plaintiff may introduce evidence of his good reputation in an action of slander. In general, it is held that such evidence is incompetent, unless his reputation is first attacked by the defendant; for he is presumed to be of good character until something appears to show the contrary. But if there is testimony against his reputation, he may meet the attack by calling witnesses to show his good character. In this Commonwealth, and in most jurisdictions, a defendant may prove, if he can, that the plaintiff is of bad reputation, in mitigation of damages, and rebutting testimony of a similar kind is competent on the same question. Ordinarily, evidence of the plaintiff's reputation is admissible only on the question of damages; but there are authorities which hold that, in a certain class of cases, it is competent on the question of liability. If the commission of a crime is charged in the libel, and the defendant offers evidence of the truth of the charge, it is sometimes said that the plaintiff may show his previous good reputation in answer to the evidence of his guilt. This is the familiar rule in criminal trials, but courts have differed on the question whether it should be introduced in suits for libel or slander. In New York, it is held that it should be confined to criminal prosecutions. Houghtaling v. Kilderhouse , 1 Comst. 530, and 2 Barb. 149, and cases cited. See also Gough v. St. John, 16 Wend. 646, 653 ; Pratt v. Andrews , 4 Comst. 493; Miles v. Vanhorn, 17 Ind. 245 ; Cornwall v. Richardson , Ry. Mood. 305; Odgers, Libel and Slander, 298, note. In Downey v. Dillon, 52 Ind. 442 , the court makes a distinction between cases in which the charge sought to be [*569] proved is of the commission of a crime, and those in which the charge is of smaller magnitude, holding that in the former a plaintiff may show his good reputation in answer to evidence of the truth of the charge, and that in the latter he cannot. We are aware of no well considered cases which go further than that. It is true that the plaintiff's reputation is in issue in an action of libel or slander, and when it is attacked it may be defended for the purpose of obtaining a proper award of damages. But on principle as well as authority, evidence of good reputation is not competent to show that a plaintiff is not guilty of a dishonorable or unlawful act, which is not punishable as a crime, any more than evidence of his bad reputation would be competent to prove his guilt. This kind of evidence has usually been strictly confined to criminal prosecutions, and it has never been admitted in reference to matters which are not subjects of criminal prosecution. It has sometimes been admitted in suits for malicious prosecution, where from the nature of the action the plaintiff has the burden of disproving in a civil suit charges which in a preliminary proceeding have been made against him in a criminal prosecution. McIntire v. Levering, 148 Mass. 546 , and cases cited.
In Harding v. Brooks , 5 Pick. 244, which was an action of slander, the verdict was for the plaintiff, and the question was whether he was rightly permitted to introduce evidence of his good character after it had been attacked by an attempt to prove the truth of the slanderous words. The adjudication was plainly right, for the evidence was competent on the question of damages, and, assuming, as the court seems to have done, that the charge imputed acts punishable criminally, it was within the principle that in such a trial good reputation may be shown in answer to specific facts indicating guilt. We think this case should not be considered an authority for the introduction by a plaintiff of evidence of his good character in reply to evidence of the truth of a libel, except upon the question of damages, and in cases where the charge sought to be proved is of a criminal act.
In the present case the evidence was immaterial on the question of damages, for the verdict was for the defendant; and it was not competent for the purpose of disproving the truth of the charges, for it did not meet the issue, and the charges were not of punishable conduct. It was therefore rightly excluded.
3. The first five of the plaintiff's requests for instructions relate to the alleged participation of the defendant in the preparation of the libel. These instructions were rightly refused. Each of the first three embodied as requisite to the existence of liability a publication of the libel by the defendant after it was printed, and the presiding justice gave full and proper instructions as to what would constitute a publication, and covered this part of the requests. The further proposition that furnishing any part of the materials used in the composition of the libel, or being concerned or in any way aiding in the production of the libel, would make the defendant liable for the libel in the form in which it appeared, is incorrect. The ruling requested went far enough to make the defendant liable for the publication, even if ignorant of the greater part of its contents, and if it had no intention that such a libel should be published, and gave no authority in regard to it.
[**658] 4. The sixth request was properly refused, because it assumed that furnishing some of the materials used by the committee of the town in the preparation of the libel would constitute a publication of it as printed, when in fact the libel as a whole was something very different from the materials furnished by the defendant's employees, used in the preparation of a part of it.
5. The instructions given in regard to the liability of the corporation for the acts of its servants and agents, were correct and sufficient.
6. The jury were instructed that, "if the defendant gave a copy of the libel to Berry, there having been no previous publication by the defendant, and Berry in procuring such copy acted as the agent of the plaintiffs, and at their request, and such publication was procured with the view to bringing action, the publication was privileged." This was in accordance with views expressed by English judges, and was sound in principle. Rogers v. Clifton , 3 Bos. P. 587, 592. Duke of Brunswick v. Harmer , 14 Q. B. 185. King v. Waring , 5 Esp. 13. Smith v. Wood , 3 Camp. 323. Odgers, Libel and Slander, 229. If the defendant is guilty of no wrong against the plaintiff except a wrong invited and procured by the plaintiff for the purpose of [*571] making it the foundation of an action, it would be most unjust that the procurer of the wrongful act should be permitted to profit by it. The jury may well have found that, if there was a publication by the defendant to Berry, there was no previous publication, because in what they did previously Foran and Turner were acting on their own account, and not for the corporation.
7. The instruction as to privilege in reference to the publication by Turner to Adams was as follows: "If the jury find that Mr. Bergen was a member of the city government of Peoria and of its water works committee, and an officer of the Peoria Bank, and that the Blackstone Bank was the Boston correspondent of said bank, and that said Bergen, through said Peoria Bank, addressed to said Blackstone Bank an inquiry as to the plaintiffs and their standing, and if the jury find that thereupon a copy of the libel was sent by the defendant in good faith, and in the belief that it was true, to said Blackstone Bank, in honest response to inquiry of it by said bank as to the plaintiffs and their standing, and that thereafter said Blackstone Bank forwarded said copy to said Peoria Bank, and that through the latter bank the said copy was communicated to a member or members of said committee by the hand of said Bergen, then the publication of that copy by defendant under those circumstances was privileged," etc. There was evidence from which the jury might have found all the facts assumed in the instructions as necessary to justify the defendant on the ground of privilege. The jury may have found that Turner, representing the defendant, acted in good faith, and in the belief that the libel was true. It does not appear that he had knowledge of the facts referred to in the libel, except possibly those relating to his own corporation, and even these were largely transactions in which he had no personal part. The publication was an official report, unanimously made by a committee of a town, who might be presumed to have acted carefully in their investigations, and it had been adopted by the town itself. He well might give great credit to it without personally examining all the matters stated in it. Moreover, on his testimony, the jury may have found that no errors of statement in regard to the plaintiffs' dealings with the defendant corporation had come to [*572] his attention; for there was evidence that these statements varied but little from the literal truth, and he testified that he first saw the publication on Saturday, March 9, in the hands of Foran, and that Foran afterwards came to his desk and read it to him, and that he was indorsing checks at the time, and that he sent the paper to Adams at the Blackstone National Bank on the following Monday. The jury might have thought he was so occupied while the paper was being read that he did not attend very carefully to its contents, and that he did not read it himself before sending it to the bank. There was much other evidence bearing on the question of his good faith, such as the fact that this paper and that handed to Hall, one of his employees, were the only copies that ever passed from his hands, or that he ever exhibited.
8. It was proper for the jury to determine the facts on which the question of privilege depended. When the facts are determined, it is for the court to say, as matter of law, whether a privileged occasion is shown. On conflicting and uncertain evidence it is proper to instruct the jury in regard to what constitutes a privilege, and leave them to say, on the evidence, whether the essential facts are proved.
We have considered the principal exceptions argued in behalf of the plaintiffs. There were many other requests for instructions which it is not necessary to discuss in detail. The case was submitted to the jury under full instructions, which clearly and carefully stated the questions to be considered, and the law applicable to all parts of the case.