Kinsley v. Herald Globe Assn. , 113 Vt. 272 ( 1943 )

The plea to which the plaintiff has demurred, alleges in substance that the publication truly stated the facts that the plaintiff recovered damages of $6,800. in an action against her son, for injuries sustained in an automobile accident; that the son was insured against public liability for personal injuries, and that the insurance carrier was compelled to pay and did pay the amount of the judgment. It also alleges that the only source of the insurance carrier's income for the payment of claims and judgments against the policy holders was the premiums paid by them; that the action, the identity of the parties, their relationship to each other and the size of the verdict were matters of importance, concern and interest to all persons residing in the territory through which the defendant's newspaper circulated, and to the public in general; that the language complained of together with any meaning that might fairly and reasonably be ascribed to it constituted fair and reasonable comment upon and criticism of a matter of public interest and importance, and were not intended to be understood, and could not be understood as a statement of facts; that the defendant had no animosity or ill will against the plaintiff and no intention of injuring her, but was moved solely by a desire to call the attention of its readers and the public in general to a matter of public interest and importance and to set forth in good faith and without malice its views, comments and criticisms thereon.

The demurrer appears to be based upon the ground that the entire article is clearly libellous and cannot in any event be classed as fair and reasonable comment.

The majority of this court have taken this view, but I am far from being satisfied that the issue here presented can be so adjudged as a matter of law. I concede that the article is susceptible of being construed as actionable libel. A jury may well find that, taken as a whole, and understood as people in general would understand the language used, it amounts to an imputation that the plaintiff instituted and maintained an unfounded and collusive action against her son, with the motive and result of defrauding a liability insurance company. But it seems to me that another interpretation may reasonably, and without resorting to a construction in mitiori sensu, be put upon it.

The demurrer admits the truth of the allegations of the plea to the effect that action brought by the plaintiff against her son, the relationship of the parties and the size of the verdict, were matters of public interest and importance, and that the defendant acted in good faith and without malice or ill will toward the plaintiff or intention to harm her.

I would hold that the article may be reasonably understood as an expression of the opinion of the writer concerning tort actions, arising from automobile accidents, between near relatives, where the damages recovered must be paid by liability insurance companies, and, without the imputation of anything wrong or illegal in the conduct of the plaintiff in the particular instance, calling attention to the danger of collusion and fraud in proceedings of this nature. That the criticism may, in the opinion of others, be unsound or prejudiced does not destroy the privilege, and the extravagant form of its expression is unimportant. So long as a newspaper writer states his actual opinion, on a matter of public concern, based upon a true statement of facts, and without the sole purpose of causing harm to another he cannot be held liable for what he writes and causes to be published, although it may be defamatory. Am Law Inst. Restatement of Torts, vol. 3, para. 606, and comment c. "A comment is fair when it is based on facts truly stated and free from imputations of corrupt or dishonorable motives on the part of the person whose conduct is criticised, and is an honest expression of the writer's real opinion or belief." Briarcliff Lodge Hotel, Inc., v. Citizen-SentinelPublishers, 260 N.Y. 106, 118, 183 N.E. 193, 198. It is not until the limits of fair criticism are exceeded that the publication passes into the region of libel, and whether under given circumstances, those limits have been passed is ordinarily, though not always, a question for the jury. Triggs v. Sun Printing and Pub. Ass'n,179 N.Y. 144, 154, 71 N.E. 739, 66 LRA 612, 103 Am St Rep 841, 1 Ann Cas 326. I think that the plea in this case presents an issue of fact, and I would affirm the ruling of the trial court.

I am authorized to say that Mr. Justice Jeffords concurs in this dissent.

ON MOTION FOR REARGUMENT. BUTTLES, J.

On leave, duly obtained, counsel for the defendant have filed a motion for reargument, pending which the entry of judgment has been withheld. The defendant complains that we have not more specifically considered the claim made in its brief to the effect that the allegation of its answer that the objectionable portion of the publication "together with any meaning or innuendo which may fairly and reasonably be ascribed thereto was and constituted fair and reasonable comment upon and criticism of a matter of public interest and importance", is itself a statement of fact which is admitted by the plaintiff's demurrer. This contention is referred to briefly in the second paragraph from the end of the foregoing opinion. In its motion the defendant also asserts that we have misapprehended the meaning of Section 606 of the Restatement of Torts.

It is well settled that a demurrer admits the facts that are well pleaded, but it does not admit the conclusions of law made in the plea. State v. Bissell, 106 Vt. 80, 87, 170 A 102; Page v. McClure, 79 Vt. 83, 89, 64 A 451. If the language of the publication of which complaint is made be conceded to be comment and criticism, and if that language is susceptible only of an interpretation which is libelous, as the majority of the Court here hold, the question whether the publication is within the protection which the law gives to "fair and reasonable comment upon and criticism of a matter of public interest and importance" may be a mixed question of fact and law, since it cannot be questioned that the law requires comment and criticism to have certain qualifications or limitations in order to afford protection from the consequences of publishing a libel. If it appears from the publication and from the defendant's answer that one or more of these essential qualifications is certainly lacking then it should be ruled as a matter of law that the defense of fair and reasonable comment and criticism is not available, and the allegation by the defendant in its answer that the language of the publication is of that character does not make it such a statement of fact as is admitted by the demurrer.

One such necessary qualification is, as stated in the opinion, that the comment must not go further than the occasion or the acts commented on warrant, or, as stated in Sec. 606 of the Restatement of Torts, from which the opinion quotes, such criticism is privileged if it 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 if it meets the other requirements therein set forth. It is true, as suggested, that Comment C under the same section contains the statement: "Unlike a personal attack upon a public man, . . . the fact that comment or criticism is one which is not reasonably warranted by the facts upon which it is based is immaterial." But the significance of the words "facts upon which it is based" is indicated by the further statement in the same comment under that section that "it is necessary, however, that the comment have some relation to the facts upon which it is made. If it has not it may well be taken to imply the existence of other undisclosed defamatory facts."

Let it be assumed, to take a simple illustration, that in such a publication the fact stated is that A has taken a deed to be recorded in the office of recorder B, which is the proper office for such record, and that it is further stated, or is a matter of common knowledge, that B has in the past been guilty of dishonesty and that forged deeds have theretofore been recorded in that office. Such facts, without more, would not, we take it, be a sufficient basis for comment stating or implying that A had forged the signatures to his deed. So here the fact that the plaintiff has seen fit to resort to a court of law for a purpose which, so far as appears, was an entirely proper one, together with the other facts stated in the publication, do not constitute a sufficient basis for defamation of the plaintiff. The necessary relation can be established only by "implying the existence of other undisclosed defamatory facts." If we could take judicial notice of all the facts which the defendant suggests were matters of common knowledge, such as the claimed excessive amount of litigation of this character in Rutland County, the suspected unprofessional solicitation by some attorneys of cases of this kind, and the hint, if such it is intended to be, of judicial laxity, the defendant's case here would not, in our opinion, be aided thereby. The necessary relation of the charge made against this plaintiff to the facts available still would not be established. That is there would still be a non sequitur. This, we judge, is in accordance with Mr. Seelman's contention that the true test is inferability. See discussion on pages 236-237 of that author's work on the Law of Libel and Slander in New York.

It is said in State v. Colby, 98 Vt. 96, 99, 126 A 510, 511, quoting from Taft J. in Post Pub. Co. v. Hallam, 59 F 530, 8 C.C.A. 201, that "the existence and extent of the privilege in communications are determined by balancing the needs and good of society against the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it. The privilege should always cease when the sacrifice of the individual becomes so great that the public good to be derived from it is outweighed." It may be that in establishing that balance this court has given more weight than have the courts of some jurisdictions to the rights of the individual. If so we see no occasion for receding from our views. In the Colby case,supra, at page 99 of 98 Vt, 126 A at page 511, language is used which, while not exactly in point here, is indicative of the attitude of this Court towards a related question. It is there said: "It is not the law, that, because a man fills a station before the public eye, he becomes a target at which all the artillery of ridicule, ill-will, or malice may be leveled. He may be assailed when duty or interest demand it, and then only under the rules of fair, temperate criticism." It is interesting to note that forty-five years earlier identical language was used inShurtleff v. Stevens, 51 Vt. 501, 519, 31 Am Rep 698. We perceive no adequate reason why a private citizen whose only connection with public affairs is that he seeks enforcement of his rights or redress of his wrongs in the proper forum should be open to defamatory attack otherwise than in accordance with such rules.Motion for reargument denied. Let full entry go down.