Jones, Varnum & Co. v. Townsend's Administratrix (21 Fla. 431, 1885)

Mr. Justice Raney

delivered the opinion of the court:

I. (a.) The appellants in support of their demui’rer to the declaration assert the gravamen of the charge to be that the libel imputed to tbe plaintiff the commission of a felony and that he had been indicted for such felony, the charge being that he had been, as defendants were informed, indicted for not canceling tne stamps on empty liquor casks, the contents of which he had sold. This charge they contend is not an offence against the State or United States laws.

Section 3324 of the Revised Statutes of the United States provides that “ every person who empties or draws off any distilled spirits from a cask or package bearing any * * * stamps required by law, shall, at the time of emptying such cask, * * efface or obliterate said mark, stamp or brand. * * * * And every railroad company * * or person who receives or transports, or has in possession with intent to transport or procure to be transported, any such empty cask * * or any part thereof, having thereon any * * stamps required by law to be placed on any cask containing-distilled spirits shall forfeit $300 for each such cask * * so-received or transported or had in possession with intent aforesaid. * * Every person who fails to efface and obliterate said stamp at the time of emptying such cask, or who receives any such cask * * or part thereof with the intent aforesaid, or who transports the same, or knowingly aids or assists therein * * * * shall be deemed guilty of a felony, and shall be fined not less than $500, nor more than $10,-000, and imprisoned not less than one year nor more than five years.” Counsel assert that the words first italicised are qualified by the words “ with the intent aforesaid,” which we have also italicised, and that “ failing to efface,”[ etc., is not punishable under the statute unless such failure is “ with the intent to transport or cause to be transported-such empty casks.” We think such construction is contrary to the plain reading of the statute, and is strained. The statute enjoins it as an active duty upon every one emptying a cask to efface or obliterate at the time the stamp; and, this, regardless of any intent as to the use or •disposition to be made of the cask. It also prohibits the receiving or transporting or having in possession any •empty cask whose stamp has not been effaced, with intent to transport it, or procure the transportation thereof. It was clearly the purpose of the statute to punish, as well an ■omission to perform the active duty imposed, as the commission of that which is forbid. Not only do we think it ■evident that our construction gives the real meaning of the section, but it is a very natural and reasonable provision, as the performance of such duty is security against a possibility of the commission of the other offences contemplated by the section, and hence the advisability of punishing a failure to perform it. [|5ir° Since the adjournment of the term at which this decision was made we have had access to Dillon’s Reports, and find our views supported by the opinion of Mr. Justice Miller, speaking for the U. S. Circuit Court, in U. S. vs. Ulrici, 3 Dillon, 532, 536, et seq.]

(b.) The article published is, in our opinion, actionable per se as a libel. It is not necessary to go into an explanation of the distinction between slander and libel, as to what words are actionable, and what are not. Ve are dealing now with libel, and not mere slander. There is, in view of the construction we have given the United States Statute, nothing in any authority we have seen which does not sustain the position that the article is a libel and per se actionable. It certainly tends to bring him into reproach and disgrace, and to degrade him in society, and is calculated to prejudice him in his trade, and injure him in his reputation, and deprive him of public confidence. It accuses him ■of being indicted for the commission of a crime punishable by law, and declared a felony, and is calculated to bring him into odium, contempt and ridicule. 37 Ohio State, 31; 6 Ohio, 532; 120 Mass., 177 ; 68 Maine. 295 ; Townshend on Slander and Libel, §176. We think the demurrer to the declaration was properly overruled.

2. After the preceding demurrer was overruled the defendants filed pleas to the declaration. Under the former practice in civil cases at law, pleading over after such demurrer overruled was a waiver of the demurrer. 17 Fla., 744. And the record stood as if no demurrer had been filed, and consequently as if no judgment had been rendered on it; hence no exception could be taken to the judgment on appeal. Johnson vs. P. R. R. Co., 16 Fla., 657. By chapter 3430 of our statute, approved March 5, 1883, it is provided that where, in civil cases, a party “ pleads over or amends his pleading after judgment upon any demurrer he shall not thereby be held or considered to have waived or abandoned his exception to the judgment upon such demurrer, and in all cases where an appeal ór writ of error shall hereafter be taken from any final judgment in any civil cause, the party suing out sach appeal or writ of error shall have the right to have any ruling or judgment upon any demurrer in the cause reviewed and passed upon by the appellate court, whether such party shall have pleaded over or amended his pleading after such ruling upon such demurrer or not.” This act applies only to common law cases, as is evident from its language, and it has always been the practice in this State that upon an appeal from a final decree in chancery all such interlocutory orders on demurrers may be reviewed, and this, too, without any exception to them having been noted in the court below. It is contended, as we understand, that it is necessary to formally except to the “judgment” or “ruling” and to have the same noted of record in the lower court in order to take advantage of this statute upon appeal. We do not think’ the language of the statute sufficient to impose such requirement. The purpose of the statute was to do away with the waiver of the demurrer, which filing pleas constituted, and to keep it and the proceedings thereon on the record for all purposes, unqualified by subsequent pleading. No waiver existing now, the error of the judgment on the demurrer, if it be erroneous, is error apparent on the record, and it is a well established rule that where there is “ error apparent,” and it is not waived, no formal exception is necessary to enable the party damaged to question it. Hinote vs. Simpson & Co., 17 Fla., 444; Pitman vs. Myrick, 16 Fla., 692. Where, prior to this statute, the demurrant suffered final judgment to go against him on his demurrer being overruled, no formal entry of exception was necessary to enable him to avail himself on appeal of the exception taken in reality to such judgment by his appeal, and proceedings in the appellate court. We think the same rule applicable under this statute, particularly as it does not require the noting of any exception, or other method, as a means of taking advantage of it.

3. The defendants filed two pleas. The first is to the first count and alleges that the plaintiff was, in January, 1881, a retail liquor dealer in Duval county, Florida, and then had in his possession at his place of business three empty liquor casks out of which he had drawn off distilled spirits, but that he had not, at the time of such emptying of said casks, destroyed, effaced and obliterated the revenue stamps, but had failed to do so, contrary to section 3324 of the United States Revised Statutes. The second plea is to the second count of the declaration, and is the same as the other except that it alleges that the plaintiff did not, at the time of drawing off and emptying such casks, efface or obliterate the stamps. The pleas conclude that “ whereupon defendants * * in good faith, and, as they believed, for the public good, * * published the article, as it was lawful for them to do, for the reason aforesaid.” The plaintiff demurs.

It is a well-established rule that a plea of justification should fully meet the declaration in every substantial particular. Great certainty of averment is requisite. It must justify the substance of the publication, its character and imputations, and also the sense in which the innuendoes explain it, it they do so fairly. It the plea does not aver that the words are true, in the sense imputed to them in the complaint by proper innuendo, it is bad. It must be as broad as the charge, and must justify the specific charge claimed to be libelous. 2 Chitty’s PL, 662, note(q); Ames vs. Hazard, 8 R. I., 143; Stillwell vs. Barter, 19 Wend., 487 ; Donney vs. Dillon, 52 Ind. 442 ; Skinner vs. Powers, 1 Wend., 451; 13 John., 475 ; Skinner vs. Grant, 12 Vermont, 456 ; Slow vs. Converse, 4 Conn., 17 ; Andrews vs. Van Duser, 11 John., 37 ; 15 Mo., 480.

The charge complained of is not that the plaintiff’ was a retail liquor dealer, and had in his possession at his place of business three empty liquor casks, out of which he had drawn off distilled spirits, and that he had not at the time of such emptying effaced the revenue stamps, or did not efface the same, but it is more—that he was a retail liquor dealer and was under indictment for not canceling the stamps, and the innuendo is that the defendant meant that the plaintiff was under indictment for the commission of a felony, the offence imputed to the plaintiff being indictable under the laws of the United States. The pleas do not meet the declaration; they say nothing as to the indictment. It is one thing for one individual to publish of another that he has committed an offence which is a felony, and another thing to say that he has actually been indicted therefor.

The language used can be reasonably given no other meaning than that the plaintiff was under indictment by a grand jury for the offence alluded to. Such is the sense in which the common mind would naturally understand it. Townshend, §138, note 3. It of course makes no difference that they are given “ on information,” so far as the question of their being actionable, considered with reference to the demurrer to the declaration, or in considering these pleas, is concerned. Treat vs. Browning, 4 Conn., 414; Kenny vs. McLaughlin, 5 Gray, 3 ; 8 John., 74 ; Skinner vs. Powers, 1 Wend., 452; 10 John., 447 ; 2 Gr. Ev., 390, note 2; 57 Wisconsin, 570.

The pleas are no answer to, or justification of, the charge, and were properly overruled.

4. The defendants then plead the general issue, not guilty. A consideration of Circuit Court Rules' 71 and 72 makes it plain that this plea puts in issue having published, the article maliciously, and in the defamatory sense imputed. It is not necessary to say more now as to what is put in issue by this plea.

The defendants upon the trial introduced as a witness Mr. Yarnum. They had previously admitted in open court that they “ were proprietors and publishers of the newspaper on March 20, 1883, and are still, and published the article complained of, that the same is not true ; that the paper had a large circulation at the time in the State, the United States, and even to Europe.” Mr. Yarnum was asked by their counsel who penned the article, and upon whose information it was written, and from whom he derived his information. Each of these questions was objected to by attorney for the plaintiff, the first as immaterial, and the second and third as improper and immaterial, and, the objection being overruled no exception was taken; when the witness answered that the article was penned by Mr. Charles H. Jones, one of the defendants, upon information furnished by the witness, who derived it “ from the office of Collector of Revenue of the United States—from Mr. S. C. Thompson.” Witness was then asked what the information he obtained was, when the plaintiff objected on the ground that it was improper, hearsay, and that no evidence was admissible to prove or tending to prove the truth of the alleged libel. The objection was sustained and defendants excepted.

Mr. Thompson, being introduced by defendants as a witness, testified that he knew Mr. Townsend ; that he, Thompf son, was, in March, 1883, Deputy Collector of Revenue for the United States, and in charge of the books and office of the Collector at that time. He was then asked: “Did Mr. Varnum get any information relative to Mr. Townsend being under indictment for selling liquor out of casks without the stamps having been cancelled thereon ? ” This question was objected to on the same grounds as the last question put to Mr. Varnum.

It is settled' that this plea admits that the words published are not true in fact, and under it the defendant cannot prove their truthfulfulness as a justification. It is also clear, as a general rule, that under such plea evidence is admissible to show a less degree of malice, and overcome, in part at least, the presumption thereof, and thus mitigate the damages. Actionable words in libel imply, in contemplation of law, malice sufficient at least to sustain an action, and entitle the plaintiff to a verdict, but the amount of the damages depends in part on the degree of malice, the malignity and wantonness of intention to injure, with which the words used were spoken, and though this malice cannot, under the plea of not guilty, be entirely overcome so as to defeat the action, where the words are actionable, evidence may be, and should be, received to show a less degree of malice and an absence of wanton intention to injure. Lick vs. Owen, 47 Cal., 252, 258 ; 6 Gill & John., 413; 43 Maine, 287. Whether or not circumstances which of themselves are insufficient to establish the-truth of the charge, yet may be introduced to show a less, degree of malice and mitigate damages are admissible, is a vexed question. In Huson vs. Dale, 19 Mich., 28, it is. said: “ No question in modem times, has perhaps given rise to a greater amount of judicial controversy. The conflict in the decisions upon it is absolutely appalling and the-attempt to trace the line of mere authority through the-maze of hostile decisions would be calculated to only confuse and lead the mind astray from the real principles of justice involved in it, and could serve no useful end.” See-also Bush vs. Prosser, 11 N. Y., 357, et seq. In Huson vs. Dale, it is decided that to rebut malice, and thus mitigate-damages, but not to establish a defence, it is competent- to show under the general issue that at the time the slanderous words were uttered the defendant reasonably believed them to be true, and facts which may tend to establish the-truth of the words are not for that reason inadmissible under the general issue. If théy tend to rebut malice, and are offered for that purpose only, and are not such as must have-been pleaded as justification, they are admissible.

It seems that prior to the decision in Underwood vs. Parks, 2 Strange, (17 George II,) 1200, the truth of the charge itself might be proved to rebut malice and mitigate damages, though the matter proven would have constituted a full defence had it been pleaded in justification. In this case upon the defendant offering to prove the truth of the words in mitigation, it was refused, the Chief-Justice saying that “ at a meeting of all the judges upon a case that, arose in the Common Pleas, a large majority of them had determined not to allow it for the future, but it should be-pleaded, whereby the plaintiff might be prepared to defend himself as well as to prove the speaking of the words.”

This we understand to have been an attempt to prove 'the truth of the words to such an extent as had they been specially pleaded would have constituted a justification, ■it was a new rule of pleading for the protection of the plaintiff against surprise—against proving as true that which the plea admitted to be false. Prior to this case it was the law that no facts not amounting to a complete defence could he specially pleaded, and all facts going only in mitigation of damages could be shown under the general issue. The only necessary deduction from this case was that the defendant should not be permitted to prove a justification under the general issue, in mitigation of damages. This was a logical and reasonable rule. To apply this rule to cases where the defendant believed, and had reason to believe the charge was true, and he had acted in good laith thereupon in making it, but, seeing his mistake, he does not seek to assert its ’truthfulness, but admits by his plea (or, as in the case at bar, also specially in open court,) that it is not true, would