and defendant knew the same. and made them to vex and annoy the plaintiff." It is doubtful whether this allegation is sufficiently definite and certain to constitute a cause of suit, but we pass that question. The record discloses that plaintiff and defendant were married in this state on the 10th day of February, 1878, and continued to live together as husband and wife until some time in 1888, when the defendant, having met with financial reverses, went to Kansas with plaintiff's consent, to seek a new location, with the understanding that he should send for his family as soon as he could provide a home for them. The only ground for the divorce alleged is that of imputation of a want of chastity, and the only evidence in the record tending in any way to support the charge is the testimony of plaintiff, given in response to leading interrogatories, and is as follows: "Question. How has defendant treated you during your married life? Answer. He has not treated me very well for the last six years. He has been jealous, and accused me of not being true to him. He thought I was too free with others, and allowed them privileges I hadn't ought to. Q. Did he ever accuse you at any time of having had sexual intercourse with other men? A. He did, frequently. Q. Did he have any reason for so accusing you? A. He never.

Q. You may

state what effect the action of defendant towards you had on you as to your happiness while living with him. A. It has made me very miserable, and has impaired my health. It has insulted me, and wounded my feelings." This testimony is flatly contradicted by the defendant, but, even if uncontradicted, is clearly too indefinite and uncertain as to time, place, persons, and circumstances to entitle her to a divorce. The accusation of adultery, so far as this testimony discloses, if made at all, may have been made at any time during the married life of the parties, and have been fully condoned by subsequent cohabitation; and, if this be so, the plaintiff is not entitled to a decree of divorce, although the defendant has not pleaded the condonation. Stew. Mar. & Div. § 311; 2 Bish. Mar. & Div. 631; North v. North, 5 Mass. 320.

It is claimed that the defendant by his answer admits the charge, and that such admission should be taken against him. It is true the answer does technically admit that defendant accused the plaintiff of the crime of adultery, but this admission is only the result of an imperfect denial, and evidently not intentional on the part of the defendant; but, if it was otherwise, or no answer whatever had been filed, the plaintiff must still make out her case before she is entitled to a decree. As was said by Lord, J.: "It is our duty to remember that the contract of marriage, unlike other contracts, the state is specially interested in preserving unbroken, and that the contracting parties cannot annul it, nor the court, except for the causes specified in the statute, and only then when satisfac

tory evidence that such cause or causes exist." Wheeler v. Wheeler, 18 Or. 262, 24 Pac. Rep. 900. The courts regard the marriage contract with peculiar favor, and will not dissolve it upon the mere disagreement of the parties under it, or their failure to live happily together. Adams v. Adams, 12 Or. 176, 6 Pac. Rep. 677; True v. True, 6 Minn. 458, (Gil. 315.) Looking at this entire record, we are of the opinion that plaintiff has not proven a case entitling her to a divorce, and the decree of the court below must be reversed, and the complaint dismissed.

(24 Or. 420)

UPTON. HUME. (Supreme Court of Oregon. July 17, 1893.) LIBEL-PRIVILEGE-JUSTIFICATION.

1. A newspaper article calling a congressional candidate a "perjured villain," and charging that he had deceived a court of justice by false swearing, is libelous per se, and not privileged by the fact of plaintiff's candidacy.

2. The fact that a libelous article on a congressional candidate was copied by defendant from another newspaper is not a justification, even if defendant acted with the utmost good faith and honest belief in its truth, and in order to inform the voters. Such matters can only be considered in disproof of malice, to mitigate damages.

3. Evidence of a subsequent defamation charging a different crime, to prove express malice, is inadmissible on grounds of policy.

4. Code, § 91, permits defendant to allege both the truth of the matter charged and any. mitigating circumstances to reduce the damages, and he may prove the latter whether he proves the former or not. Defendant had given some evidence in justification which, though insufficient to that end, did chime with his evidence in mitigation, of good faith and belief. The court charged that, if the plea of justification was not sustained, the jury might consider that as a repetition of the charge, in aggravation of damages, and as evidence of malice. Held error. It was for the jury to decide from the evidence, and spirit of the defense, whether the plea was honest or malicious.

Appeal from circuit court, Curry county; J. C. Fullerton, Judge.

Action by one Upton against one Hume for libel. From a judgment for plaintiff, defendant appeals. Reversed.

The facts fully appear in the following statement by BEAN, J.:

The plaintiff, Upton, sued Hume upon a charge of libel, in publishing in the Bold Beach Gazette, a newspaper owned and published by him, and circulated in the counties of Coos and Curry, in this state, certain articles concerning the plaintiff, containing, among other things, the following language, alleged to be false and defamatory: "He (meaning the plaintiff) has already acquired the reputation of being a loathsome, venomous thing, without shame; a man without a spark of manhood; a betrayer of his party; a citizen whose word is not worth a straw; a vile and cowardly slanderer; an infamous scoundrel; and a perjured villain." "No, sir; you (meaning the plaintiff) done this simply

for personal feeling and spite. You done so because Capt. Tichenor had publicly called you, to your face, a perjurer and a thief." "This, sir, was the worst of perjury, for by this, your false swearing, you deceived the court, and was the cause of granting a divorce illegally. Deny this, if you dare. The proof can be produced with little effort. We could recount many more of your ways that are dark, J. H. Upton, but we think the above will suffice for the present." The defendant, by his answer, admits the publication, but pleads (1) the truth in justification; and (2) as a matter of inducement, explanation, and justification, that at the time of the publication the plaintiff was a candidate for the office of joint representative for Coos and Curry counties in the legislature, and that the articles complained of were only a republication of unretracted charges published by one Walter Sutton in 1884, but who, at the time of the publication complained of, was publishing a paper called the Port Orford Tribune, and advocating therein the election of plaintiff, and abusing the defendant, who was supporting and advocating the election of plaintiff's opponent; that, when said articles were published by defendant, he had sufficient cause to believe, and did believe, that the charges therein contained were true; and that the plaintiff was an unfit person for the position to which he aspired, and, so believing, published the same in good faith, and without malice against the plaintiff, but for the sole purpose of advising the voters of Coos and Curry counties as to the true character of plaintiff and the inconsistency of Sutton. The trial resulted in a verdict and judgment in favor of plaintiff in the sum of $500, from which the defendant appeals, assigning error in the admission of testimony, and in giving and refusing certain instructions.

S. H. Hazard, for appellant. W. M. Kaiser and J. M. Siglin, for respondent.

BEAN, J., (after stating the facts as above.) Before considering the other assignments of error, we wish to advert to the question raised by the motion for a nonsuit, and by certain instructions given and refused by the trial court, and that is whether the publication complained of was prima facie privileged by the occasion, and whether this action can be maintained by plaintiff without proof of express malice. The general rule is that, in the case of a libelous publication, the law implies malice, and infers some damages if the publication is false; but to this rule there are certain exceptions, in what are known as "privileged communications." Such communications are usually divided into several classes, with only one of which we are concerned at this time, and that is, generally stated, thus: "A communication made bona fide upon any subject-matter in which the party communicating has an interest, or

in reference to which he has a duty, is priv ileged if made to a person having a corresponding interest or duty, although it contain criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation." The rule was thus stated in Harrison v. Bush, 5 El. & Bl. 344, and has been generally approved by judges and text writers. Within this rule, it is held that it is not only the privilege, but the duty, of the public press to discuss before the electors the fitness and qualification of candidates for public office conferred by the election of the people; and, when a man becomes such a candidate, he must be considered as putting his character in issue so far as respects his fitness and qualification for the office, and that every person who engages in the discussion, whether in private conversation, in public speech, or in the newspapers, may, while keeping within proper limits and acting in good faith, be regarded and protected as one engaged in the discharge of a duty. But it is not believed that this rule can be legitimately carried to the extent of justifying a publication which imputes to a candidate for office the commission of a crime, merely because he is seeking office. "The authorities fully sustain the position," says Green, P., in an able opinion on the subject, "that a publication in a newspaper, made either of a public officer or a candidate seeking an elective office from the votes of the people, which imputes to him a crime or moral delinquency, is not a privileged communication, either absolute or conditional; but such publication is per se actionable, the law imputing malice to the author or publisher." Sweeney v. Baker, 13 W. Va. 158. And in Seely v. Blair, Wright, 686, it was said by Wright, J.: "As to the point urged, that the plaintiff was a candidate for office, and the defendant an elector, I need only say the relation of the parties to each other or to the public confers upon the defendant no right to utter falsehood and calumny. An elector may freely canvass the character and pretensions of officers and candidates, but he has no right to calumniate one who is a candidate for office with impunity. If the law sanctioned such a course, it would drive good men from the administration of public affairs, and throw our government into the hands of the worthless and profligate." So, also, in Bronson v. Bruce, 59 Mich. 474, 26 N. W. Rep. 671, Mr. Justice Champlin says: "The electors of a congressional district are interested in knowing the truth, not falsehoods, concerning the qualifications and character of one who offers to represent them in congress; and it is the right and privilege of any elector or person also having an interest to be represented to freely criticise the act and conduct of such candidate, and show, if he can, why such person is unfit to be intrusted with

the office, or why the suffrages of the electors should not be cast for him. But defamation is not a necessary and indispensable concomitant of an election contest. 'Slander,' says Judge Overton, 'is no more justifiable when spoken of a man with a view to his election than on any other occasion. Unhappy, indeed, would be any people when, in the exercise of one right, you destroy as important a one. Let his talents, his virtues, and such vices as are likely to affect his public character be freely discussed, but no falsehoods be propagated.' To hold that false charges, of a defamatory character, made against a candidate, are privileged, as matters of law, if made in good faith, and that the party making them is absolutely shielded against liability, it seems to me, is a most pernicious doctrine. It would deter all sensitive and honorable men from accepting the candidacy to office, and leave the field to the profligate, the unprincipled, and unworthy; to men who have no character to lose, no reputation to blemish. It could scarcely be expected that any man worthy of the position would consent to stand for an office, and have his reputation tarnished, his good name scandalized, in the face of the whole community, if such doctrine as this is to prevail. Besides, under the guise of assisting the people to select a fit man, the voters are deceived by falsehood, and induced to withhold their support from the maligned candidate, and so two wrongs are perpetrated,-one upon the candidate; the other in misleading the voter. Under such a rule, the advocates of both or all the candidates would let fly their poisoned shafts of defamation, and charges, to be met with counter charges, until the bewildered voters, not knowing who or what to believe, must of necessity shut their eyes to the fitness and character of the candidates, and join the ranks of the party whose banner bears the inscription 'Principles, not Men.'"

The rule we gather from the authorities is that the fitness and qualification of a candidate for an elective office may be a subject for the freest scrutiny and investigation, either by the proprietor of a newspaper or by a voter or other person having an interest in the matter, and that much latitude must be allowed in the publication, for the information of voters, of charges affecting the fitness of a candidate for the place he seeks, so long as it is done honestly and without malice. Nor will such publication be actionable without proof of express malice, although it may be harsh, unjust, and unnecessarily severe, for these are matters of opinion of which the party making the publication has a right to judge for himself. In the case of such a publication the occasion rebuts the inference of malice which the law would otherwise raise from its falsity, and no right of action exists, even though the character of the party has suffered, unless he is able to show the

existence of actual malice. But, when the publication attacks the private character of a candidate by falsely imputing to him a crime, it is not privileged by the occasion either absolutely or qualifiedly, but is actionable per se, the law implying malice; and it is no justification that the publication was made with an honest belief in its truth, in good faith, and for the purpose of influencing voters. Such publications can only be justified by proof of their truth. Com. v. Clapp, 4 Mass. 163; Curtis v. Mussey, 6 Gray, 261; Aldrich v. Printing Co., 9 Minn. 133, (Gil. 123;) Root v. King, 7 Cow. 613; King v. Root, 4 Wend. 113; Hamilton v. Eno, 81 N. Y. 116; Com. v. Wardwell, 136 Mass. 164; Barr v. Moore, 87 Pa. St. 385; note to McAllister v. Free-Press Co., [43 N. W. Rep. 431,] 15 Amer. St. Rep. 318; Seely v. Blair, Wright, 358. If it can be said that the cases of Bays v. Hunt, 60 Iowa, 251, 14 N. W. Rep. 785; Mott v. Dawson, 46 Iowa, 533; and State v. Balch, 31 Kan. 465, 2 Pac. Rep. 609,-when read in the light of the facts, announce a contrary doctrine, they do not seem to us to be supported either by reason or the weight of authority. To permit a defendant who has published of a candidate false and defamatory statements concerning his private acts and character, on being pursued in the courts for this grievous wrong, to say in justification that he was actuated by no ill will or malice towards the plaintiff, but his motives were pure, and his conduct actuated only by a desire for the public good, would abandon candidates to all the fierce tempests of defamation which either personal spite or political interest may suggest. The only safe evidence of a man's intentions are his acts, and, if he accuses another of a crime, he must conclusively be presumed to have intended to injure him. Let the acts, conduct, and public record of a candidate, so far as it may affect his fitness or qualification for office, be the subject of free and vigorous comment, so long as it is done in good faith; but, when his private life is assailed by imputing to him a crime, let his accuser either answer in damages, or prove the truth of the charge. The term "freedom of the press," which is guarantied under the constitution, has lead some to suppose that the proprietors of newspapers have a right to publish with impunity charges for which others would be held responsible. But this is a mistake. The publisher of a newspaper possesses no immunity from liability on account of a libelous publication, not belonging to any other citizen. In either case the publisher is subject to the law of the land, and, when the publication is false and defamatory, he must answer in damages to the injured party. Barnes v. Campbell, 59 N. H. 128; Mallory v. Pioneer Press Co., 34 Minn. 521, 26 N. W. Rep. 904; Daily Post Co. v. McArthur, 16 Mich. 452; Sheckell v. Jackson, 10 Cush. 25. As was said by Cole

ridge, J., in Davison v. Duncan, 7 El. & Bl. 231: "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 so, he must defend himself on some legal ground." Judge Drummond says: "We all desire the entire freedom of the press, but it has never been understood as authorizing the bringing of charges against a man of his having committed a crime unless those charges were true. Now, there is nothing in this plea to indicate that these charges were true, but only that they had reason to believe that there was something in them, and that they were made in good faith and for honest purposes by them as the conductors of a public journal. That will not do. It would be tolerating charges in the public press against individuals simply under color of what was claimed to be a criticism. It may be said here that the motive was an honest one, but I hardly think that with an honest motive a journalist has a right to proclaim to the world that a particular individual is a thicf or a murderer, or that he has committed any other crime in the catalogue of crimes. only thing that can justify that is that it is true. Under our law, if it is true, he can make it. All public men, if this were the rule, would be at the mercy of every journalist, and they could launch charges against such a man with entire impunity. I do not feel inclined to adopt any rule which would allow such a license." v. Tribune Co., 4 Biss. 477.

The

Smith

The publication complained of in the case under consideration imputed to the plaintiff a crime of the most infamous character,that of being a "perjured villain," and by his false swearing deceiving the court,—and, under the law, was not privileged either actually or conditionally, although the plaintiff was at the time a candidate for an elective office. Nor does the admitted fact that it was but a republication of what Sutton had previously published amount to a justification, even if done in the utmost good faith, and with an honest belief in its truth, and for the purpose of informing the voters. A newspaper cannot copy, even in the way of news, without liability, a libelous article from another paper. Davis v. Sladden, 17 Or. 259, 21 Pac. Rep. 140. But the fact that it was so copied may and should be considered, together with all the other circumstances of the publication, when properly pleaded, in determining the good faith of the defendant, and as tending to show want of actual malice, and thus go in mitigation of damages. McDonald Woodruff, 2 Dill. 244; Hinkle v. Davenport, 38 Iowa, 355; Hewitt v. Pioneer-Press Co., 23 Minn. 178. We are of the opinion, therefore, that no error was committed by the trial court in overruling the motion for a

V.

nonsuit, or in instructing the jury that malice was implied from the publication, and that the previous publication by Sutton was no defense.

The next assignment of error is in the admission, for the purpose of showing malice in fact, of proof that after the publication complained of, and before the commencement of this action, the defendant, in the presence of divers persons, said that "the men that voted for that old forger Upton were thieves, robbers, and sons of bitches." If these words can be considered as making any charge against the plaintiff, it is that of forgery; and, as no such charge is alleged in the complaint, the only question presented by the exception is whether, in an action for libel, evidence of a charge of a different nature and at a different time from that alleged in the complaint can be given for the purpose of showing malice or the animus of the defendant in the publication complained of. Upon this question the authorities are in conflict, but, in our opinion, the better rule seems to be that where the subsequent words or publication impute the same crime, or may fairly be considered as a renewal of the original charge, they may be given in evidence, as tending to show express malice and to enhance the damages, (Leonard v. Pope, 27 Mich. 145,) but that evidence cannot be given of actionable words spoken or published on another occasion, and charging a separate and distinct crime from that charged in the complaint, for the purpose of showing malice, or for any other purpose, for the reason, as stated by Parker, C. J., that "this is a distinct calumny, for which the plaintiff has a right to his action, and, though it may tend to prove malice as to the first words, so, also, will it necessarily go to enhance the damages, for no jury can say how much or how little of the damages were given on account of this second charge." Bodwell v. Swan, 3 Pick. 376. To the same effect are Root v. Lowndes, 6 Hill, (N. Y.) 518; Howard v. Sexton, 4 N. Y. 157; Frazier v. McCloskey, 60 N. Y. 337; Distin v. Rose, 69 N. Y. 122; Barr v. Hack, 46 Iowa, 308. This is recognized as the better rule by Mr. Townshend in his work on Libel and Slander, (section 392;) and in a note to Odgers on Libel and Slander, Mr. Bigelow, a writer of recognized learning and ability, after a careful review of the authorities in this country, reaches the conclusion that, "by the better authorities, evidence of the publication of defamation upon the plaintiff, other in substance than that sued for, is not admissible on grounds of policy." Page 271, note. The distinction between the admissibility as evidence of charges of a nature different from those in suit and the repetition of the charges made in the complaint seems to be put upon the ground that a repetition of the libel or slander and the original offense may be practically treated as one wrong,

and as to the repetitions used in evidence, all barred by the one judgment, (Leonard v. Pope, supra; Root v. Lowndes, supra; Frazier v. McCloskey, supra,) which obviously could not be true of the publication of a different charge. The repetitions made use of in evidence in a particular trial are treated as barred by the judgment, be cause the jury are presumed to have considered them in estimating the damages for the original publication. If, however, charges of a different nature are admitted in evidence for the purpose of showing animus,-and they certainly could not be competent for any other purpose,-the jury may, indeed, be instructed that they must not give damages therefor; yet, as has been remarked, such instruction will be wasted upon the average, and perhaps upon a highly-cultivated, jury. Root v. Lowndes, supra. For this reason it is thought best to hold "that such evidence is not admissible for any purpose." The subsequent defamation given in evidence in this case, if true, was a distinct calumny, for which the plaintiff had a right of action; and, indeed, such action was pending at the time it was given in evidence, and hence we think its admission was error.

The next assignment of error is in the instruction to the jury that, if the plea of the truth of the charge in justification is not sustained by the evidence, "the jury may consider that as a repetition and republication of the original charge, and consider the same in aggravation in assessing the damages, and as evidence of malice on the part of defendant against the plaintiff." It was formerly the law that if the defendant in a libel suit pleaded the truth in justification, and failed to establish such plea, it was considered as evidence of malice, and in aggravation of the injury, and he was precluded from asking any mitigation of damages, even if the plea was made in good faith and with an honest belief that it was true. Bush v. Prosser, 11 N. Y. 366. But section 91 of the Code of this state (which provides that the defendant, in his answer, may allege both the truth of the matter charged and "any mitigating circumstances to reduce the damages, and, whether he proves the justification or not, he may give in evidence the mitigating circumstances") has changed the rule, and under this section the damages are not necessarily affected by a failure to make good a plea of justification. It will depend upon the motive with which the plea was interposed, and the good faith of the defendant. If, under the color of justification, the defendant seeks to reiterate and perpetuate his slander, it may be considered by the jury as evidence of malice, and in aggravation of damages; but where the plea is made In good faith, and all that can be said is that he has failed to fully support it by competent proof, we do not see the justice of applying a rule to him not applicable to the

other litigants who happen to fail in a bona fide defense. The result of the decisions of the state of New York, under a statute like ours, is that the mere inability to establish a justification is no evidence at all of malice or in aggravation of damages, nor will it preclude the defense from asking that the damages be mitigated where it appears that he was free from malice, and had good reason to believe the libel that he published to be true. Bush v. Prosser, 11 N. Y. 366; Bisbey v. Shaw, 12 N. Y. 67; Klinck v. Colby, 46 N. Y. 427; Distin v. Rose, 69 N. Y. 122; Spooner v. Keeler, 51 N. Y. 527. In Distin v. Rose, supra, Church, C. J., says: "The Code has made this change in the law as it previously stood that, although the justification is not sustained, yet the facts adduced for that purpose may be used in mitigation of damages if they tend to show good faith or belief in the truth of the words uttered. But when there is a total failure of proof tending in this direction, and the circumstances evince malice in reiterating the slander in the pleadings, it is allowable for the jury to take that circumstance into consideration. Thorn v. Knapp, 42 N. Y. 474, and cases cited." Indeed, the rule of the common law has been deemed so harsh and unjust that it has been so modified in this country as that an approved plea of the truth is probably at the present day nowhere held to be necessarily evidence of malice, but the question now turns upon the circumstances of the plea. Odgers, Sland. & L. § 274, note, where the authorities are collated; Sloan v. Petrie, 15 Ill. 425; Harbison v. Shook, 41 Ill. 141; Hawver v. Hawver, 78 I. 412; Pallet v. Sargent, 36 N. H. 496; Proctor v. Houghtaling, 37 Mich. 41; Ransone v. Christian, 49 Ga. 491; Henderson v. Fox, 83 Ga. 233, 9 S. E. Rep. 839; Ward v. Dick, 47 Conn. 300.

Now, in this case the defendant gave evidence tending to support the plea of justification. Indeed, it was substantially admitted on the trial that the plaintiff did make an affidavit in proof of the publication of the summons in the divorce case of Moore v. Moore which was untrue, his explanation being that it was made by mistake. Upon the other plea-that he committed perjury in the case of State v. Madden-no evidence as to its truth was offered by the defendant, but he gave evidence tending to show that it was made in good faith, and with an honest belief at the time that it was true and could be sustained by the proof. It was therefore error to instruct the jury unqualifiedly that, if the defendant failed to sustain the plea of justification, they might consider it in aggravation of damages. It should have been left to the jury to decide from the evidence and the manner and spirit with which the defense was conducted whether the real object of the plea was to defend the action with a reasonable expectation of success, or