756

VIRGINIA, MARCH TERM, 1879.

Richmond and Danville Railroad Company v. Anderson's Adm'r.

yet could not, by the exercise of such care and caution, avoid the mischief which happened.

It is not necessary to recapitulate the evidence which establishes this proposition. It is sufficient to say that the engineer did not see deceased on the track until it was too late, notwithstanding the prompt and energetic use of all the means in his power to avert the mischief which happened, and that he did not see him sooner was owing to causes from which no negligence in the defendant or its agents can be properly inferred.

If there had been no demurrer to the evidence in this case, and the jury had rendered a verdict for the plaintiff, it would have been the duty of the judge presiding at the trial to set aside the verdict, on the ground that the evidence was plainly insufficient to warrant it.

It follows that, in my opinion, the judgment of the Circuit Court is erroneous and should be reversed, and that final judgment should be rendered by this court on the demurrer to evidence in favor of the defendant (the plaintiff in error here).

The other judges concurred in the opinion of BURKS, J.

Judgment reversed.

NOTE, -The reporter has omitted to take from the present volume of Grattan, three cases which would be of sufficient importance and interest to find a place in this series, if they had not been pronounced by a bare majority of the court. They are the following: Sutherland v. Old Dominion Ins. Co., p. 176-a policy of insurance, conditioned to be void in case of other insurance without indorsed consent, is not avoided by another insurance with the like condition This case is of first impression in Virginia. Boynton v. McNeal, p. 456-a homestead right is not lost by a grant of the premises subsequently set aside as fraudulent as against the grantor's creditors. Following Shipe v. Repass, 28 Gratt. 716. The opinion however is mainly embraced in the note, ante, p. 645. Danville Bank v. Walldill's Admr., p. 469-in an action of assumprit, to recover money deposited for safe-keeping with the defendant, and of which he claims to have been robbed, evidence proffered by him of his general good character is not admissible, and his failure to produce It is no ground for an inference unfavorable to his integrity.

CASES

IN THE

SUPREME COURT OF APPEALS

OF

WEST VIRGINIA.

SWEENEY V. BAKER.

(13 W. Va. 158.)

Slander and libel-candidate for office- privileged publication.

To charge a candidate for a popular office with being uneducated, lazy, idle and ignorant, is not libelous; nor is it libelous per se to charge him with being "a social leper" who should be "deodorized.” But otherwise to charge him with being a professional gambler, bully, thief and whore-master.*

A

CTION of libel. The facts sufficiently appear in the opinion. The plaintiff had judgment below.

W. W. Arnett, R. G. Barr, James M. Morrow, William W. Gor don, for plaintiff in error.

E. G. Cracraft, W. P. Hubbard and Daniel Lamb, for defendant

in error.

GREEN, President. Before considering directly the questions involved in this case, I will briefly consider the rights and duties of the parties to this action, arising from their relations to each other.

The plaintiff was a candidate to represent the county of Ohio in the House of Delegates of the State of West Virginia; and the

•See Tilson v. Robbins (68 Me. 295), 28 Am. Rep. 50; Barr v. Moore (87 Pann. 385) Am. Rep. 367.

Sweeney v. Baker.

defendants were proprietors of the Wheeling Daily Register, a newspaper published in said county. A newspaper proprietor is just as liable, for what he publishes in his newspaper, as any other person; and he is liable in the same manner and to the same extent. The law takes no cognizance of newspapers; and there is no distinction between the publication by the proprietors of a newspaper, and a publication by any other person.

The terms "freedom of the press " and "liberty of the press" have misled some to suppose that the proprietors of a newspaper had a right to publish that with impunity, for the publication of which others would have been held responsible. But the proper significa tion of these phrases is, if so understood, misapprehended. The "liberty of the press" consists in a right in the conductor of a newspa per to print whatever he chooses without any previous license, but subject to be held responsible therefor to exactly the same extent, that any one else would be responsible for the publication.

In the case of Stebbins v. Merritt, 10 Cush. 25, the instruction given by the court below, and approved by the Supreme Court, was: "It has been urged upon you, that conductors of the public press are entitled to peculiar indulgence, and have especial rights and privileges. The law recognizes no such peculiar rights, privileges, or claims to indulgence. They have no rights but such as are com. mon to all. They have just the same rights that the rest of the community have, and no more. They have the right to publish the truth, but no right to publish falsehoods to the injury of others with impunity."

In Davidson v. Duncan, 7 El. & Bl. 231 (90 Eng. C. L.), ColeRIDGE, J., says: "There is no difference in law whether the publication is by the proprietor of a newspaper or by some one else. There is no legal duty on either to publish what is injurious to another; and if any person does do so, he must defend himself on some legal ground."

But the fact that one is a candidate for an office in the gift of the people affords in many instances a legal excuse for publishing language concerning him as such candidate, for which publication there would be no legal excuse, if he did not occupy the position of such candidate, whether the publication be made by the proprietors of a news paper, or by a voter, or other person having an interest in the election. The conduct and actions of such candidate may be freely commented upon; his acts may be canvassed, and his conduct boldly censured.

Sweeney v. Baker.

Nor is it material that such criticism of conduct should in the estimate of a jury be just. The right to criticise the action or conduct of the candidate is a right, on the part of the party making the publication, to judge himself of the justness of the criticism. If he was liable for damages in an action for libel for a publication criticising the conduct or action of such a candidate, if a jury should hold his criticism to be unjust, his right of criticism would be a delusion, a mere trap. The only limitation to the right of criticism of the acts or conduct of a candidate for an office in the gift of the people is, that the criticism be bona fide. As this right of criticism is confined to the acts or conduct of such candidate, whenever the facts, which constitute the act or conduct criticised, are not admitted, they must, of course, be proven. But as respects his person there is no such large privilege of criticism, though he be a candidate for such office.

This large privilege of criticism is confined to his acts. The publication of defamatory language, affecting his moral character, can never be justified on the ground that it was published as a criticism. His talents and qualification mentally and physically for the office he asks at the hands of the people, may be freely commented on in publications in a newspaper, and though such comments be harsh and unjust, no malice will be implied; for these are matters of opin. on, of which the voters are the only judges; but no one has a right ny a publication falsely to impute crimes to such a candidate, or publish allegations falsely affecting his character.

In Commonwealth v. Clapp, 4 Mass. 163, Chief Justice PARSONS says: "When any man shall consent to be a candidate for public office, conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the office;" but he adds: "The publication of falsehood and calumny against public officers, or candidates for pub lic offices, is an offense most dangerous to the people, and deserves punishment, because the people may be deceived, and reject the best citizens, to their great injury, and it may be to the loss of their liberties."

In Mayrant v. Richardson, 1 Nott. & M. 348, where the words complained of were spoken and written of a candidate for congress, and were substantially that his mind was so impaired and weakened by disease that it could not be depended upon, though special dam ages were laid, yet the court held on demurrer that the action could not be sustained, though the language used was false and malicious,

Sweeney v. Baker.

though had the words used or letters written imputed a crime or moral delinquency, the action would have lain. Justice Morr, in delivering the opinion of the court, says: "When one becomes a candidate for public honors he makes a property of himself for publi. investigation. All his pretentions become the proper subjects of inquiry and discussion. He makes himself a species of public property, into the qualities of which every one has a right to inquire, and of the fitness of which every one has a right to judge, and give his opinions. The ordeal of public scrutiny is many times a disagreeable and painful operation; but it is the result of freedom of speech, which is a necessary attribute of free government; and the same may be said of freedom of the press.”

The authorities fully sustain the position, that a publication in a newspaper made either of a public officer or of a candidate seeking an office from the votes of the people, which imputes to him a crime or moral delinquency, is not a privileged publication, either absolute or conditional; but such a publication is per se actionable, the law imputing malice to the author or publisher. See Curtis v. Mussey et al., 6 Gray, 281; Aldrich v. Press Printing Co., 9 Minn. 133; Seeley v. Blair, Wright, 358, 683; Root v. King, 7 Cow. 613; King v. Root, 4 Wend. 113; Harwood v. Astley, 1 B. & P. 47; Duncombe v. Daniel, 8 C. & P. 222.

In most of these cases the distinction I have drawn, between cases where the libelous charges published against public officers elected by the people, or candidates for public office before the people, merely refer to the mental or physical condition of the party to fill the office, and cases where the libelous charge imputes crime or moral delinquency, is either not made at all, or but vaguely alluded to; but an examination of these will show, that in the particular case before the court, which was being commented upon, the libelous charge, which the court held was actionable per se, was in every case a charge imputing crime or moral delinquency.

Thus in the case of Curtis v. Mussey, 6 Gray, 373, the court say: "The want of actual interest, to vilify or libel the plaintiff, rendered the publication no less a libel, if such were the natural effect of the words published. There were passages in the publica tions, which appear on their face to be libelous, such as the charge of legal jesuitism; the companion to Pilate and Judas; the charge of prejudice and want of feeling; the assertion that the decision of the commissioner was a partisan and ignoble act. The statements com