Wood v. Vernon

According to tire act of March 4, 1857, (Rev. Code, 654,) on the trial of an indictment for libel, the truth of the matter charged or alleged in it as libellous may be given in evidence ; and if the jury in any such case shall find that the act was induced by good motives, and with no malicious intent, and the *57matter so charged is true, it shall operate to the acquittal of defendant or defendants. Section 2. That in actions for damages for libel, where the truth is pleaded and given in evidence, if it be found that the same was written or published properly for public information, and with no malicious or misehevious motives, the jury may find for the defendant or defendants.

The second plea to the declaration is that the matters charged as libellous in it are true, and that the same were published properly for public information, and with no malicious or misehevious motive, within the meaning of said statute, and which is a plea of justification of it upon those grounds; and to this plea the plaintiff demurs generally, and assigns the following causes of demurrer: That the plea does not contain or show any particular ground or matter of justification, nor any particular matter of defense to the plaintiff’s cause of action, and is in other respects uncertain, informal, and insufficient.

The third plea to the declaration is that the matters charged as libellous in it were furnished for publication to the defendants by John T. Wood, the husband to the plaintiff, and that the same were published properly for public information, and with no malicious or misehevious motives, within the meaning of the said act of assembly. To this plea the plaintiff also demurs generally, and assigns the following causes of demurrer, to wit: That the said plea averring that the matter charged in the declaration as libellous was furnished to said defendants by John T. Wood, who is alleged in said plea to be the husband of the plaintiff, for publication, raises an irrelevant issue in this action, in that it alleges as a- matter of defense that the defendants published the said libel on the information of the said John T. Wood, whereas the offense charged in the declaration is the publication of said libel by the defendants ; that the said plea is double, and alleges two distinct matters of fact, to wit: (1) That it was published' on the information of one John T. Wood; and (2) that it was published properly for public information, without malice. And that-said plea alleges that the *58said matters charged as libellous in said declaration were published properly for public information, and with no malicious or mischevious motives, within the meaning of the said act of assembly, and does not allege that said matters were true, and that the said plea is in other respects uncertain, insufficient and informal.

The defendants have joined in the demurrers, and in the argument of them have raised the question whether the plaintiff is entitled to an action for the libel alleged in the declaration against the defendants in this case, as it appears on the record before us, and deny that the plaintiff is so entitled, on two grounds: First, because the alleged libel was published on the 23d day of February, in the year of our Lord, 1885, but that the said act of assembly,* empowering any married woman, living separate and apart from her husband» as provided for in it, to bring a suit of this kind, was passed on the 16th day of April in that year, after' the alleged libel had been published; and, secondly, because the defendants’ third plea was that the alleged libel was published by them at the instance of the husband of the plaintiff, the truth of which averment is, of course, admitted by her demurrer to the plea. And, if either of these *59grounds be sound, it will not be necessary to inquire into the sufficiency or insufficiency of either of the pleas demurred to; for the preceding inquiry, just before mentioned, into the soundness or unsoundness of the defendants’ grounds for totally denying the plaintiff’s right of action in this case, is preliminary to it necessarily, and, if found in favor of the defendants, must be fatal to the plaintiff’s right of action on the demurrer.

And, first, I think the exception is well taken that the statute of the 16th of April, 1885, is not to have any retrospective operation or effect, in the absence of any indication in the terms of it that such was the intention of the legislature in enacting it, by the construction of this or any other court, according to what I consider to be the well-settled principle of the law on that subject, both in this and the other states of this country • and therefore, not having been enacted, or retrospectively in force or effect, on the 23d day of February in that year, when the alleged libel was published, and the alleged cause of action in this case accrued to the plaintiff against the defendants, as a married woman she possessed under the laws and statutes of the state, as they then stood, no power whatever to sue in her name the defendants for the publication oí it, nor afterwards, under the said statute enacted on the 16th day of April, in that year, according to the true intent and meaning and proper judicial construction of it. Nor could she, I think, on the authority of the ruling in the case of Tibbs v. Brown, cited in the argument of the counsel for the defendants, from 2 Grant, Cas. 39, then or afterwards have jointly sued them with her husband, because it is admitted by the plaintiff, as before mentioned, that the publication of the said alleged libel was made by the defendants at the instance of her husband; in which case it was held by the court that where the husband originated the slanderous reports against,his wife, jointly sued for by them, that they could not maintain the action in their joint'names, nor could the wife sue in her own name alone for the injury complained of; for it is impossible to allow that one can join in the commission of an *60injury, or lead others to commit it, and then become a party plaintiff in claiming compensation for it from those whom he has misled. The act of April 16, 1885, does not enlarge or extend the plaintiff’s right of action as a married woman by any retroactive operation or effect, clearly expressed or implied in any of the terms of it, and it does not empower her to sue in a case where neither her husband alone, nor the two jointly as husband and wife, could sue before; for this involves, not the remedy merely, but the right of action also. Abbott v. Abbott, 67 Me., 304.; Libby v. Berry, 74 Me., 286. This more particularly applies to the second ground of objection taken by the defendants on the demurrer to the third plea to the right of the plaintiff to maintain the action. Nor can the demurrer to that plea be sustained on the ground assigned for it,—that it fails to allege, as in the second plea, that the alleged libel was true; for although fatally defective as a plea on that ground, and no evidence could be given under it of the truth of the alleged libel, for the want of such an allegation, in a civil action founded on the second section of the act of March 4, 1857, (Rev. Code, 654,) the deficiency of it in any respect is immaterial, in the consideration and decision of the- demurrer to it, if it appears to the satisfaction of the court, on an examination of the whole report in the case,.that the plaintiff cannot maintain the action in it. I am therefore of the opinion that both of the demurrers to the plea of the defendants must be overruled.