MILISSICH v. LLOYD’S
In the Court of Appeal, February 10, 1877.
Reported in 13 Cox, Criminal Cases, 575.
Mellish, L. J.[[477]] In this case the defendants have appealed from a decision of the Common Pleas Division, ordering a new trial on the ground that the verdict given for the plaintiff was against the weight of evidence. They are not satisfied with that order, but they come before us to have judgment entered for themselves. The question for us is an important one, as to the power of the court to enter judgment under the Judicature Acts. Now, although the Judicature Acts do undoubtedly give very general powers to the court as to entering of judgment, it is clearly not intended by the Legislature that the court should take advantage of that general rule to remove questions from the consideration of the jury which are questions of fact properly for their consideration. The action was brought by the plaintiff against Lloyd’s for an alleged libel published by Lloyd’s in a pamphlet. At the trial, no doubt, the defence of privileged communication was raised and Lord Coleridge expressed an opinion that Lloyd’s would not have the same privilege as an ordinary newspaper; and he also expressed an opinion that, inasmuch as only the speech of the prosecuting counsel and the summing up of the judge, and not the speech of the counsel for the defence, at the criminal trial, was published, the report could not be a fair one of the trial. I cannot agree with either of these doubts. I cannot think there is any difference between the privilege attaching to a report in a newspaper or in a pamphlet, unless some question of malice is raised. Of course, if actual malice is alleged, the fact that the libel was published in a pamphlet and not in a newspaper might be very material, but when no such allegation is made I cannot conceive there is any difference. I also cannot agree that the mere fact that the publisher did not publish the evidence in full, but only the summing up of the judge and the speech of the prosecuting counsel, made the report of the trial an unfair one. I think that proposition implies that proceedings at trials cannot be reported at all unless they are reported in full. It must, therefore, be sufficient to publish a fair abstract of the evidence. Now, I do not know how the reporter could do better than take the judge’s summing up to get that fair abstract, although I do not, of course, lay down as a matter of law that the summing up of a judge is necessarily a correct summary for the report. I think this report may be fair or it may be unfair; but then, is it a question of fact or law whether the report is fair or unfair? I think that it is a question of fact, and should be left to the jury to determine. Then the argument is that the evidence is all one way and that it is useless sending the case down to a new trial because no jury could reasonably find the other way. In my opinion, the court must be very cautious not to take upon itself the functions of a jury. Notwithstanding the great powers given by the Judicature Acts, it is still, of course, the province of the jury to determine between the credibility of witnesses on either side. Here, however, the question is more what is the inference to be drawn from the facts proved in evidence. The general inference to be drawn from all the facts, as in Lewis v. Levy, E. B. & E. 537, is for the jury. There the whole proceedings before the magistrates were put in evidence, in order to judge of the fairness of the report. Here a full shorthand note is produced, and, being placed in the hands of the jury, they are to draw the inference, and not the court. Now, although I think that persons might draw very unfair inferences against a man who, like the plaintiff, did not appear at the trial himself and could not defend himself from the charges which were made against him on both sides, still, if the report is a fair one of what took place the defendants will be privileged. The question for the jury will be at the new trial—was the report a fair one, and would it give a fair notion to people who were not there of what took place? That question is one for the jury, and I think the case should, therefore, be sent for a new trial.
Judgment below affirmed.[[478]]
BARNES v. CAMPBELL
Supreme Court, New Hampshire, June, 1879.
Reported in 59 New Hampshire Reports, 128.
Case, for libel in accusing the plaintiff of crime. Plea, the general issue, with a brief statement alleging that the defendants are conductors and publishers of a newspaper published at, &c., and as such it was part of their duty to give to their readers such items of news as they might properly judge to be of interest and value to the community, and that, as such conductors and publishers, they published the article complained of, in good faith, without malice, believing and having good reason to believe the same to be true.
Motion by the plaintiff to reject the brief statement.
Smith, J. Matter in justification must be pleaded. But according to some decisions, matter in excuse may be given in evidence under the general issue, or be pleaded. State v. Burnham, 9 N. H. 34, 43, and authorities cited; Carpenter v. Bailey, 53 N. H. 590. In this view of the case, it is, perhaps, immaterial whether or not the brief statement is defective. But, treating the brief statement and the motion to reject it as intended to raise the question whether the brief statement sets forth a defence, we are of opinion that it does not. The defendants probably intended to set out the excuse of a lawful occasion, good faith, proper purpose, and belief and probable cause to believe that the publication was true. They laid stress upon their business of publishing a newspaper. But professional publishers of news are not exempt, as a privileged class, from the consequences of damage done by their false news. Their communications are not privileged merely because made in a public journal. They have the same right to give information that others have, and no more. Smart v. Blanchard, 42 N. H. 137, 151; Palmer v. Concord, 48 N. H. 211, 216; Sheckell v. Jackson, 10 Cush. 25. The occasion of the defendants’ publishing a false charge of crime against the plaintiff was not lawful, if the end to be attained was not to give useful information to the community of a fact of which the community had a right to be and ought to be informed, in order that they might act upon such information. State v. Burnham, 9 N. H. 34, 41, 42; Palmer v. Concord, 48 N. H. 211, 217; Carpenter v. Bailey, 53 N. H. 590; S. C. 56 N. H. 283. The defendants do not state facts that would constitute a lawful occasion. They make a loose averment of their general duty to give their readers such news as they (the defendants) might properly judge to be of interest and value to the community. This should be struck out of the record as insufficient and misleading. It is, in effect, an intimation that they published the libel in the usual course of their business, and is calculated to give the jury the erroneous impression that the defendants’ judgment of the propriety of the publication is evidence of the lawfulness of the occasion. The defendants’ general business of publishing interesting and valuable news was not, of itself, a lawful occasion for publishing this particular, false, and criminal charge against the plaintiff. It will be for the jury to say what weight the defendants’ business has as evidence on the question of malice. But however high the defendants’ vocation, and however interesting and valuable the truth which they undertake to give their readers, their ordinary and habitual calling is no excuse for assailing the plaintiff’s character with this false charge of crime. They must show specific facts constituting a lawful occasion in this particular instance, as if this false charge had been the only thing they ever published. They allege nothing of that kind. They do not state that the community had any interest which would have been protected or promoted by the publication complained of if it had been true, or had a right to be or ought to be informed of the subject-matter of it in order that they might act upon correct information of it, or that the information given would have been practically useful to anybody if it had been true. This is the substance of a lawful occasion. The brief statement contains no specification on this point.
Motion granted.[[479]]
LAWLESS v. THE ANGLO-EGYPTIAN COTTON CO.
In the Queen’s Bench, February 11, 1869.
Reported in Law Reports, 4 Queen’s Bench, 262.
Libel. The declaration charged that the defendants falsely and maliciously published of the plaintiff, their manager, in a certain report of the affairs of the company, these words: “The shareholders will observe that there is a charge of £1,306 1s. 7d. for deficiency of stock, which the manager is responsible for; his accounts as such manager in the company have been badly kept, and have been rendered to us very irregularly.”