C. H. Jones & Brother, Appellants, vs. J. C. Greeley, Appellee, 25 Fla. 629

Maxwell, J : In the argument of counsel for appellants, some of the questions discussed are treated as if the case made by the first and second counts of the declaration was not a ease of libel actionable per se. We think otherwise.

The charge in both counts is that appellants published of appellee that “ if he (meaning the plaintiff) is posing as a good man, when as a matter of fact, his conduct has been and is the reverse of what is supposed to befit the character of a good man, it is not only legitimate and proper, but it is a duty which a journalist owes to the people to strip off the disguise and expose the sham.

If he (meaning the plaintiff) is pretending to be a philanthropist and a benefactor of the poor, when in fact he has been a grasping and penurious Grad-grind, whose greed has inflicted untold sorrow upon the widow and the orphan, it is proper and right that that likewise should be exposed. If he (meaning the plaintiff) is appearingbefore the public with the pretence of being one kind of a man, it is legitimate to strip off his mask and show the real countenance behind it.

It is perfectly understood that when a man becomes a candidate he challenges precisely this kind of scrutiny and renders himself liable to exactly this sort of exposure, and it is precisely this that has happened to Mr.

Greeley — ” meaning, as the declaration says, “that plaintiff is posing as a good man, when as a matter of fact his conduct has been and is the reverse of what is supposed to befit the character of a good man; and that he is pretending to be a philanthropist and benefactor of the poor, when in fact he has been a grasping and penurious Grad grind whose greed has inflicted untold sorrow upon the widow and orphan,” &c.

This court has held that to publish of and concerning any person any language which tends to bring him into ill repute, or to destroy the confidence of his neighbors in his integrity, is actionable per se. Montgomery vs. Knox, 23 Fla., 595. It ’s too apparent to require comment, that the language complained of was calculated to produce just, such injury to appellee. It in effect brands him as a hypocrit, and as one who under the cloak of hypocrisy oppresses the widow and orphan. What worse could be said of him, short of imputing high crime?

To be published as a hypocrite the authorities hold is actionable; Townsend on Slander and Libel,

section 177; Thorley vs. Kerry, 4 Taunton, 355; Maloney vs. Bartley, 3 Camp. N. P., 213; and when to that is added the stigma of Buch greed as impels him to inflict untold sorrow upon the most helpless members of the community, the case becomes one of much stronger actionable character.

And even if there were any doubt in regard to the actionable character of the publication, considering only its probable injury to him as an individual, which is the complaint of the first count, there can be none when the language is applied to him in his business character of banker and money-lender, as is alleged in the colloquium of the second count. So applied it is actionable per se in slander as well as libel, though without such application it would not be actionable in slander in the absence of special damage, while in libel it would be ; Townsend on Slander and Libel, sections 179-80; Sanderson vs.

Caldwell, 45 N. Y., (6 Hand) 398; and as pertinent to this ease, the language of one member of the court in Stone vs.

Cooper, 2 Delio, 300, where, though it was held that to publish of a person that he used money for shaving purposes was not necessarily actionable, because that might be done in a legiti mate and innocent way, he said he would -not hesitate to pronounce the publication libellous, “if there was anything in (it) from which it could be fairly inferred that the defendant meant to charge, or in duee thepublic to believe, that the plaintiff had been guilty of extortion and oppression.” Such inference is one that cannot be ,avoided in the present case; and holding the publication to be libellous and actionable per se, we proceed to consider other questions as they are presented by the assignment of'errors.

The defendants filed a plea of justification, that it is true the plaintiff “ was engaged in the business of loaning money in Jacksonville * * from time to time, and was in the habit of loaning money to widows and orphans and other poor people at large and exorbitant rates of interest to the great damage and impoverishment of the persons aforesaid who borrowed money from him, which are the same facts charged and intended to be charged in the alleged libelous article.” To this the plaintiff demurred on the ground that the “justification is not as broad as the charge, and is entirely different from the charge.” The demurrer was sustained) and this is assigned for error.

The defendants contend that the plea is good as justifying one of the several charges, which if proven would go in mitigation of damages in case the plaintiff is entitled to a verdict- on the charges not justified, citing Odger on Libel and Slander, 486. See also Stacey vs. Portland Pub. Co., 68 Me., 279. This is the rule, but with the qualification that the part justified “is distinct and severable from the rest;” and it is also necessary that the “precise charge must be justified, and the whole of the precise charge.” Odger, supra.

There are three servable charges in the publication before us, and the one sought to be justified relates to hard dealings with widows and orphans. If the plea covers the whole of that charge, or meets it precisely as made, it is a good plea without any justification of the other charges. It will be seen, however, that this is not done.

The charge was not simply that the plaintiff inflicted untold sorrow upon widows and orphans, or in the language of the pica, loaned them money “ at large and exorbitant rates of interest to (their) great damage and impoverishment;” but that he did this under pretence of being “ a philanthropist and benefactor of the poor. This latter was a substantive portion of the charge, and the plea is bail in not justifying as to that portion, both on the ground that it cannot be fairly severed from the other portion, and that the precise, or-whole, charge is not justified. Hence, the demurrer was properly sustained.

We do not think, in reference to the next error assigned,, that the last paragraph of the first charge given to the jury at the request of plaintiff, was erroneous.

The charge that to publish of a man that lie is.a “hypocrite,” “a dishonest man,” is libelous, and constitutes a cause of action, is correct, and in giving this, in the absence of any evidence of the use of such words, the court cannot be considered as announcing an abstract and misleading proposition, for the reason that it was but a foundation for the further portion of the charge to which there was evidence, that to “ publish of a person words that imply that he is a hypocrite or a dishonest man is libelous.” It was in effect saying, in the light of the evidence in the case, that imputation of hypocrisy or dishonesty, is as libelous when veiled under words which mean that, as if made directly by the words themselves.

The third and fourth errors assigned complain that the corresponding charges of the court coniine the jury, in determining whether the publication had a defamatory meaning, to the language set forth in the declaration without regard to the whole

article published. This is a simple misapprehension of those charges, as they were preceded by reference to the belief of the jury founded on the evidence, and that evidence included other portions of the

article than those copied in -the declaration, in fact all othei' portions. The next alleged error is against the charge that the jury might take into consideration the financial ability of the defendants, and further that if they u believe the defendants did actually intend to injure the plaintiff by the publication, * * * then you must award heavier damages than you would award in case you find that the defendants did not have such intention.” In so far as the charge relates to the financial ability of the defendants, the objection to it presents a much mooted question, and the authorities are in conflict.

But without discussing the point, we think the weight of authority and reason are in favor of the doctrine that if the libel is one for which the jury conclude from the evidence that exemplary or punitive damages should be awarded, the pecuniary circumstances of the defendant is a proper matter of evidence. Obviously what would be pecuniary punishment to a man of small means would not be felt as such by one of large meansj and it would seem that some regard should be had to this, though not in a spirit of prejudice against the latter class. Eor discussion of the question and authorities, see 67 Am. Dec., n . 565.

See also Adcock vs. Marsh, 8 Ired., (Law), 360; Bennett vs. Hyde, 6 Conn., 24; Flagg vs. Roberts, 67 Ill., 485; Buckley vs. Knapp, 48 Mo., 152; Karney vs. Paisley, 13 Iowa, 89.

As to that portion of the charge relating to the intention of defendants, preceding this in the charge was given the common doctrine that “ if the defendants published libellous matter they are presumed in law to have intended all the probable consequences of such publication ” — the law being that as against this presumption a defendant will not be permitted to give evidence showing there was really no intention to injure, though he may show this in mitigation of damages. The counterpart of the rule will permit evidence of actual intention to injure, looking to aggravation of damages — Townshend,

section 91. And this, it is clear, is what the court meant. But counsel object to the charge on the ground that it permits the jury to determine upon theques•tionof actual intention on their own belief, when there is no evidence on which to base the belief. The object in view in reference to such intention was, of course, to determine if there was malice such as would justify a verdict for aggravated damages; and in that view it cannot be said there was no evidence before the jury.

The language of the publication itself may be considered, and though the occasion for it may be a legitimate one, as in commenting-on the demerits of a candidate for office, yet if it is in excess of the occasion, disproportionately abusive, and runs into expressions libellous in their nature, and not privileged,. the jury may find therein proof of malice. Townshend,

section 399; Odgers, 279-80. It is easy to conceive cases in which the language alone, without any extrinsic evidence, would satisfy a jury that the publication was made in malice. And that is a question for the jury. In this case it was their province, the publication being actionable per se, to determine how far, if at all, the language went to show aetual intention to injure, or malice, and the court did not err in charging on that as one of the matters about which there was.some evidence before them.

The objection to the seventh charge falls, because based on the mistaken notion that the language of the publication is not actionable per se. And the further objection to that and other charges, that in giving them the Judge did not sign and seal his ruling, is not available here, as no exception was taken on that account. Southern Express Co. vs. VanMeter, 17 Fla., 783. The last assignment of error is against the refusal of' theGourt to grant the motion for a new trial.

The chief’ grounds of the motion have been considered already, swdl we find no-error in the charges objected to which we have not commented on; and it only remains for us to say whether the verdict should be set aside because it is against the evidence and the charges of the court, or because in giving $3,000 damages it is excessive. From what we have-already said, holding that the language of the publication is action able per se, if it related to the'plaintiff, and related to him in bis business character, it follows that we must hold that the verdict was properly found in his favor.

Whether it did so relate was left as a question for the jury under the following charge given at the requests of appellants : “It is a question for the jury to determine whether or not the alleged libel bears the construction which the plaintiff in his declaration seeks to pat upon it;” and other charges for appellants gave proper instructions as to what matters should be considered and how considered, in order to arrive at the correct construction of the language alleged to be libellous. From our examination of the evidence, we do not think the finding of the jury, under those charges, was a strained one.

The publication was to discredit Mr. Greeley as a candidate for Congress. From the terms of the

article itself there can be no doubt that the language complained of related to him, and from the evidence, no doubt that the language related to him as well in his business dealings as in his personal character. lie was a banker engaged in loaning money. And we think the jury might well have regarded the language as meaningless if not to be construed as the declaration construes it. The use of the word “if” preceding the defamatory language cannot be regarded as entirely supposititious.

That it forbid by the whole tenor of the article; and if not merely supposititious, the language resolves itself, divested of the “if,” into the meaning put upon it by the declaration. At any rate, the jury, to whom appellants had the question referred, so found, and we see no sufficient reason to disturb their finding. Nor do we feel at liberty to say that the verdict was excessive. The evidence shows that the plaintiff was a man of high standing, doing a large business, considerable of which was in lending money, and that his business acquaint-once through the State was very large.

It also shows that the paper in which the publication was made was the leading daily of the State with a large circulation in the State, and subscribers in almost every State of the Union. The occasion of the publication was to expose the unfitness of the plaintiff for an office for which he was a candidate before the people. While the charges might he justified if they were true, the fact that they are false, w'hich is admitted by the plea of not guilty, carries them beyond the line of legitimate denunciation of a candidate ; and the occasion conferred no privilege to step over that line.

His character as a business man was not involved except so far as it might show that he was untrustworthy, and libellous charges to show this, if not true, are as gratuitous as if he were not a candidate, but being made in such a connection may become to the jury more redolent of malice.

"When, with this and the other facts, the strongly libellous matter ■of the publication is considered, and its tendency to injure weighed, a court would assume more than we think is authorized, to say that the jury wascontroled in the amount of its verdict by any improper influences or prejudices ; and in the absence of this, when the amount does not appear to ■be grossly excessive, the verdict should not be disturbed. In our opinion the judgment should be affirmed.