Opinion
July Term, 1898.
William F. Cogswell, for the plaintiff.
Walter S. Hubbell, for the defendant.
The defendant having a legal interest in its copyrighted publications had the right to publish to its customers a true statement of the decision of the United States Circuit Court of Appeals, even though it censured the acts of the plaintiff in publishing its General Digest, and the defendant is not liable for publishing a fair report of such decision. ( Edsall v. Brooks, 2 Robt. 29; S.C., 17 Abb. Pr. 221; 26 How. Pr. 426; Salisbury v. Union Advertiser Co., 45 Hun, 120; Towns. Sland. Lib. [4th ed.] §§ 229, 240; Stark. Sland. Lib. [3d Eng. ed.] 214, 281; Odger's Sland. Lib. [2d Eng. ed.] 229, 248; 13 Am. Eng. Ency. of Law, 319, 423.)
This is the rule of the common law, and is quite independent of section 1907 of the Code of Civil Procedure, which relates to newspapers.
It is not alleged in the complaint that the publication, in so far as it refers to the 7th volume of the General Digest, is libelous. The only words complained of are the head lines "General Digest Piratical" and "The Circuit Court of Appeals, in a Test Case, Finds The General Digest Piratical and Grants a Permanent Injunction." It is urged by the learned counsel for the plaintiff that these words refer to the preceding volumes of the General Digest as well as to the 7th volume, and that by these words the defendant charges, and intended that it should be believed, that all the volumes of the plaintiff's General Digest were piratical and violations of the copyrights of the defendant. The defendant answers that the publication complained of is a fair report of the decision of the Circuit Court of Appeals, and that the publication refers in express terms to volume 7 of the General Digest.
Defamatory head lines are actionable though the matter following is not, unless they fairly indicate the substance of the matter to which they refer, and such head lines prefixed to a report of a judicial decision, or of judicial proceedings, are no part of the report, but are, in effect, comments upon it and are not privileged, unless they are a fair index of the matter contained in a truthful report.
In determining whether head lines prefixed to a report are fair, they and the matter to which they refer must be construed together. ( Edsall v. Brooks, supra; Salisbury v. Union Advertiser Co., supra.) In Edsall's case it was held at Circuit, as a question of law, that the head lines complained of were not libelous, and a nonsuit granted, but on appeal it was held that the head lines and the matter following must be construed together, and so construed that the head lines were not justified by the matter to which they referred, that they were libelous, and the judgment entered on the nonsuit reversed. In Salisbury's case it was ruled at Circuit that the head lines were justified by the matter to which they related and a nonsuit granted, which ruling was affirmed on appeal, the court saying: "The contention on the part of the plaintiff is that the heading of this publication does not necessarily import that it is part of the judicial proceedings, nor does it necessarily appear that it was such in fact. The article is set out in the complaint entire, and it is, in view of the evidence, to be construed as a whole to ascertain its necessary import and that of its several parts. The heading states a question which, standing alone, might be construed as libelous. But connected with what follows it appears to be a question presented by a judicial proceeding."
Under these cases the question whether head lines are justified by the matter to which they relate is not always a question of fact for the jury.
The truthfulness of the report to which the head lines are prefixed is not questioned.
On the 1st page of the covers of the advance sheets of The American Digest and of the reporters it is stated in subhead lines, not complained of, that "The U.S. Circuit Court of Appeals has just filed a decision in the test case of the West Publishing Co. v. Lawyers' Co-operative Publishing Co., finding a volume of the General Digest full of infringements of the copyrights of the complainants." This is a plain statement that a volume — only one — was piratical and found to be full of infringements of the copyrights of the defendant. On the 4th page of the covers of the advance sheets of The American Digest and of the reporters it is stated immediately after the head lines that "The United States Circuit Court of Appeals has just rendered a decision in this suit brought in December, 1892, as a test case against Vol. 7 of the General Digest." Then follow a few lines of comment, not asserted to be libelous, closing with an extract from the opinion of the United States Circuit Court of Appeals. By this statement it clearly appears that the article refers only to the 7th volume of the General Digest, and it seems to me that the head lines are a fair index of the truthful report which follows. It is true that the words "General Digest," standing by themselves, might refer to all the volumes of that work, but the term is equally appropriate to any single volume of the work, each volume being so entitled, and it being explicitly explained in the body of the article that reference is made only to the 7th volume, persons reading the publication would not understand that it was charged that all the volumes were piratical.
The plaintiff in this action, when it published the result of the application for an injunction pendente lite, referred in the body of its article to volume 7 of the General Digest, and prefixed to the article the head line "The General Digest." It is clear that the plaintiff did not by its head line intend to include all the volumes of its digest, but to refer simply to the 7th volume, the head line being equally appropriate to a single volume or to all the volumes.
The plaintiff, having first used the term "The General Digest" as an index or head line to an article relating to the 7th volume only, ought not to complain that the same term was used as an index by the defendant to a truthful article referring to the same volume.
Construing, as we must, the head lines and matter to which they refer together, I think the head lines were a fair index to the matter to which they refer.
The plaintiff's exceptions should be overruled, and a judgment ordered on the verdict for the defendant, with costs.
All concurred.
Plaintiff's exceptions overruled and motion for a new trial denied, with costs, and judgment ordered on the verdict for the defendant, with costs.