§ 124. The liability of the proprietor of a newspaper is shared in common with the proprietor of a printingpress, a printer, book publisher and bookseller. The proprietor of a bookstore or newspaper store is responsible for the contents of every book and paper sold in his store,1 in the newspaper while the same was under his control. (Martin v. Van Schaick, 4 Paige, 479.) Although a receiver having charge of the publication of a newspaper is responsible for what is published, his responsibility is not to be tested by an action. A receiver is an arm of the court, he is not to be sued. (Camp v. Barney, 6 Sup. Ct. Rep. [T. & C.] 622; Barton v. Barbour. 104 U. S. 126.) The proper mode of procedure is by petition to the court appointing the re ceiver. This was the course pursued in Stubbs v. Marsh, 15 Law Times, N. S. 312. In that case damages were awarded the petitioner, and it being found that the libel was published through the carelessness of the receivers, they were ordered personally to pay the costs of the petition. A receiver of a railroad was held liable as a common carrier. (See Blumenthal v. Brainerd, 38 Vt. 408; Paige v. Smith, 99 Mass. 395; Kerr on Receivers, 193, note; Camp v. Barney, 6 Sup. Ct. Rep. [T. & C.] 622.) A receiver was appointed to carry on the publication of a newspaper in Dayton 7. Wilkes, 17 How. Pr. R. 510; Kelly v. Hutton, 17 Weekly Rep. 424, and in many unreported cases. The editor and publisher of a newspaper is answerable in law, if its contents are libelous, unless the libelous matter was inserted by some one without his order and against his will. (The Commonwealth v. Kneeland, Thacher's Crim. Cas. 346.) The liability of the proprietor for all that appears in his paper, proceeds from this: He puts the instrument for wrong doing in the hands of the wrongdoer. He may be compared to one who keeps a dangerous animal, and who is bound so to keep it that it does no harm; if harm ensues he must answer for it. (See Domat, § 1568, and note-One maliciously setting a bear loose.) Rex v. Gutch, I Moo. & Mal. 433: on the trial of defendant for publishing a libel in a newspaper of which he was the proprietor, it was contended on his behalf that he was not liable, because he took no part in the publication of the newspaper; but he was held liable and the court said: “A person who derives profit from and who furnishes means for carrying on the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears: " and see Rex v. Alexander, I Moo. & Mal. 437; 3 Albany Law Jour. 46; and see Atty. Gen. v. Siddon, 1 Cr. & Jer. 220. 1 "It is not material whether the person who disperses libels is acquainted with their contents or otherwise, for nothing would be more easy than to publish the most virulent papers with the greatest security, if the concealing the purport of them from an illiterate publisher would make him safe in dispersing them. (2 Starkie on Slander, 30, note v; Moore, 627; Wood's Inst. 431; Bac. Abr. tit. Libel, 458; 3 Greenl. Ev. § 171; Gibhardt v. England, 8 New Jersey Law Jour. 146; see note, p. 101, ante.) Nutt's Case, Fitzg. 47; Barnard. 306: The defendant was tried for publishing a libel. It appeared in evidence the defendant kept a pamphlet shop, and that the libel was sold in defendant's shop, by her servant, for her account, in her absence, and that she did not know the contents of it, nor of its coming in or going out. This was held to be a publication by the defendant, but a juror was withdrawn. (See Barnes v. The State, 19 Conn. 407.) the unless he can show that he did not know, and had no reason to suppose that the book or newspaper contained any defamatory matter. In an action for libel against a news-vender, the defendant denied the publication, and pleaded that he was a news-vender carrying on a large business; that he sold copies of the newspaper containing the alleged libel in the ordinary course of his business, and without any knowledge of the contents. Upon the trial, the jury found: (1) that the defendant did not know that newspapers at the time he sold them contained libels on the plaintiff; (2) that it was not by reason of any negligence on defendant's part that he did not know there was any libel in the newspapers; and (3) that defendant did not know that the newspaper was of such a character that it was likely to contain libellous matter, nor ought he to have known so. Upon the findings judgment was given for defendant. The plaintiff appealed. Lord Esher, in affirming the judgment, said: The finding comes to this, defendant was the innocent disseminator "of a thing containing a libel, which he had no reason to suppose contained one. Rex v. Dodd, 2 Sess. Cas. 33: The defendant was tried for publishing a libel. It was insisted for the defendant that she was sick, and that the libel was taken into her house without her knowledge. This was held no excuse: the law presumed her acquainted with what her servant did. In Rex v. Almon, 5 Burr. 2689, the liability of booksellers was much discussed, and the court expressed an opinion that the sale of a libel in a bookseller's shop was prima facie evidence of a publication, though not so conclusive but that it might be rebutted by circumstances. It is said (2 Starkie on Slander, 34), "But the defendant may rebut the presumption by evidence that the libel was sold contrary to his orders, or clandestinely; or that some deceit or surprise was practiced upon him; or that he was absent under circumstances which entirely negative any presumption of privity or connivance." And reference is made to Rex v. Almon, supra, and to Woodfall's Case, where the publication was by a servant of the defendant, the defendant being at the time within prison walls. In Rex v. Fisher, I Moo. & Mal. 433, it is said the presumption arising from proprietorship of a newspaper may be rebutted and an exemption established. If the publication is made without the consent of the writer, the offense is not complete as to him. (Weir v. Hoss, 6 Ala. 881. See Holt on Libel, 294.) As if the writing be stolen from him. (Mayne v. Fletcher, 9 B. & Cr. 382.) In Chubb v. Flanaghan, 6 Car. & P. 431, it was held that if a publication consists in merely selling a few copies of a periodical in which the libel was contained among the articles, it was a question for the jury whether the defendant knew what he was selling. The consequences of holding him liable in such a case would be too enormous. A mere carrier of a thing containing a libel would be liable-even a railway company that carried a paper containing a libel over the country, though the paper was one not at all likely to contain libellous matter. The consequences would be too great; and as this question depends upon common law, and not upon statute, it may be safely laid down that any proposition which alleges that the common law of England is wholly unreasonable and unjust must be an erroneous proposition." In a case against the American News Company for publishing a libel by selling copies of the newspaper, a verdict for a large amount was obtained against the defendant, but the judgment was reversed upon the ground that although it was shown the defendant had distributed two hundred and forty copies of the libel, it was not shown that any one had read the libel.2 1 Emmens v. Pottle, 16 Q. B. D. 356; see 2 Leg. Adv. 211 (Liability for libel of vendor of newspaper), and 23 Alb. L. J. 401 (Suits against news companies as sellers of newspapers), and ante, n. 1, p. 106, and § 120. Prescott v. Tousey, 50 N. Y. Superior Ct. Rep. 12; see § 104, ante, and contra, see Giles v. The State, in note to 373, post. The Penal Code 1 of New York, provides: § 245. To sustain a charge of publishing a libel, it is not necessary that the matter complained of should have been seen by another, it is enough that the defendant knowingly displayed it, or parted with its immediate custody, under circumstances which exposed it to be seen or understood by another person than himself. CHAPTER VII. CONSTRUCTION OF LANGUAGE. Actionable quality of language dependent upon its construction-All language ambiguous or unambiguousDifficult to determine what is and what is not ambiguous-Points upon which ambiguity may arise-Causes of ambiguity-Ambiguity, how explained-Different effect of language concerning a person and of language concerning a thing-Materiality of questions, what person or thing affected, and whether the person is affected as an individual merely, or in some acquired capacity-Principles of construction; before verdict; after verdict-Examples of construction-Divisible matter. § 125. Language as a means for effecting a wrong must be either such as is actionable or such as is not actionable. To which of these divisions any particular language is to be referred may depend upon the construction of the language in question. Anterior, therefore, to an inquiry into what language is and what language is not actionable, it is proper here to consider at least the principal rules by which alleged defamatory language is construed. The question as to when the construction is with the court, and when by the jury, is discussed in a subsequent chapter (§§ 281-286). It is not easy in every case to determine what is ambiguous and what is unambiguous language. Language may be unambiguous on its face, which, by reason of some circumstances connected with it, is in fact ambiguous. This is always the case with language used ironically. When language is unambiguous on its face, it must be construed as unambiguous, unless its ambiguity be shown; and on the one who asserts the ambiguity of language unambiguous on its face, is the burden of establishing the ambiguity.1 § 127. When language is ambiguous, the ambiguity may be either (1) whether the language concerns a person or a thing, or (2) what person or what thing it concerns, or (3) if it concerns a person does it concern him as an individual merely or in some acquired capacity, as in an office, trade or profession; (4) what is the import or signification of the language, and (5) is the charge or matter divisible or indivisible. § 128 The ambiguity may be patent or latent, that is and abstractedly innocent, and which derive their offensive quality from some collateral or extrinsic circumstances; as if A. says to B., you did not murder C., which words, from the ironical manner of speaking them, may convey to the hearers as unequivocal a charge of murder as the most direct imputation." (1 Starkie on Slander, 46.) 1 "Where the words of themselves impute a larceny, and are unaccompanied by an explanation showing the hearers that they were not so intended, the defendant must show that they referred to a transaction that was not larceny, and were so understood by all who heard them. And where the plaintiff had taken wood through mistake, and defendant, knowing the excuse for taking it, persists in charging him with stealing, in reference to such taking, he cannot fall back and rest upon the plaintiff's innocence." (Phillips v. Barber, 7 Wend. 439; and see Maybee v. Fisk, 42 Barb. 336.) "As doubtful or apparently innocent words may by circumstances be shown to be actionable, so may words apparently actionable be explained by circumstances to have been intended and understood in an innocent sense. Thus, though the defendant should say, Thou art a murtherer, the words would not be actionable if the defendant could make it appear that he was conversing with the plaintiff concerning unlawful hunting, when the plaintiff confessed that he killed several hares with certain engines, upon which the defendant said, Thou art a murtherer, meaning a murtherer of hares so killed. 4 Co. 13." (1 Starkie on Slander, 98; $ 134, n.) Where the words are defamatory on their face, the burden is on the defendant to show they have not the meaning they plainly import. (Myers v. Dresden, 40 Iowa, 660; § 134, post.) |