Res Judicata. Evidence, Of truth of alleged libel, Of character and reputation. Practice, Civil, Exceptions. Libel and Slander, Evidence of plaintiff's good character.
In an action for libel brought by the chairman of the licensing board of a city appointed under R.L.c. 100 against the publisher of a newspaper, alleging libellous statements that the plaintiff and his associates on the board had been lax in the enforcement of the law relating to sales of intoxicating liquors by innkeepers, a report in writing, made to the board of which the plaintiff was a member by police officers appointed by the board to investigate sales of intoxicating liquors by licensed innkeepers on Sundays and holidays, stating violations of the law by various innkeepers, is admissible in behalf of the defendant as tending to show the truth of the statements contained in the alleged libel, although upon the same report as evidence the Superior Court on a review under R.L.c. 100, § 4, reversed a decision of the mayor of the city removing the members of the board and found that the plaintiff was not guilty of any violation of law, the doctrine of res judicata not being applicable to this decision made upon a different issue and between different parties.
No exception lies to the admission of a preliminary question to a witness which has not harmed the excepting party.
In an action for libel brought by the chairman of the licensing board of a city against the publisher of a newspaper, alleging libellous statements that the plaintiff and his associates on the board had failed to enforce the law relating to sales of intoxicating liquors, it was held, that, even assuming that in this Commonwealth, where the defendant in an action for libel under a plea of justification asserts and undertakes to prove that the plaintiff was guilty of acts punishable as crimes, the plaintiff may rebut such proof by evidence of good character and reputation, which is an open question, yet in the present case the language used by the defendant did not impute any act punishable criminally, and that accordingly evidence of the plaintiff's reputation for good character was excluded properly upon the issue of liability, it having been made immaterial upon the question of damages by a verdict for the defendant. Moreover in the present case the offer of proof was too broad, not being confined to reputation as to those traits of character involved in the imputed wrongdoing.
De COURCY, J.
Two of the exceptions taken by the plaintiff relate to the admission of evidence and may be disposed of briefly. The written reports made to the board of police, of which the plaintiff was a member, by police officers especially appointed by the board to investigate the sale of intoxicating liquor in licensed hotels on Sundays and holidays, were competent evidence. They tended to show violations of the law by the various innkeepers, and hence that the alleged libellous statements that the plaintiff and his associates on the board had been lax in the enforcement of the law relative to the sales of intoxicating liquors by innholders, were true in substance. Conner v. Standard Publishing Co. 183 Mass. 474. The ground of the plaintiff's objection was that the judge of the Superior Court on this evidence had found the plaintiff not guilty of any violation of law. But as the issue and the parties were different, the doctrine of res judicata does not apply.
The question put to the witness Craig clearly was a preliminary one, namely, whether he made the statement referred to, not whether that statement was true; and it was so stated by the judge. This exception must be overruled.
At the close of the evidence of the defendant, the plaintiff made an offer of the testimony of witnesses as to his character and reputation in the community. This was offered not as bearing on damages but on the issue of liability, and in any event would be immaterial on the question of damages in this case, as the verdict was for the defendant. Howland v. George F. Blake Manuf. Co. 156 Mass. 543. In civil proceedings, the general rule is that such evidence is immaterial and hence inadmissible even though the cause of action is one for which a criminal prosecution might be brought. Geary v. Stevenson, 169 Mass. 23. Colburn v. Marble, 196 Mass. 376. In an action of libel or slander, in some States evidence of the plaintiff's reputation is admissible in chief, on the theory that his character is put in issue. 25 Cyc. 482, 514. It is assumed by the plaintiff in his argument that where the words charge a crime he may show his good character in rebuttal of evidence introduced by the defendant in justification; but that, we think, must be regarded as an open question in this Commonwealth. The case of Harding v. Brooks, 5 Pick. 244, is authority for the introduction of such evidence only on the issue of damages, and in cases where the charge sought to be proved is of a criminal act, as was pointed out by Knowlton, J., in Howland v. George F. Blake Manuf. Co. 156 Mass. 543, 569. And in the latter case it was decided only that, if reputation was admissible in an action for libel, the plaintiff had not brought himself within the rule limiting such evidence to cases in which the charge sought to be proved is of the commission of a crime as distinguished from a charge of lesser magnitude. See Geary v. Stevenson, 169 Mass. 23, 32. Even assuming, without deciding, that where the defendant under his plea of justification assumes the burden of proving that the plaintiff was guilty of acts punishable as crimes, the plaintiff may repel that proof by evidence of good character, nevertheless in the case at bar the trial judge rightly excluded the evidence offered. The language used by the defendant in the alleged defamatory publications, interpreted by the ordinary meaning of the words, does not seem to us to impute bribery or any other act that is punishable criminally. Sillars v. Collier, 151 Mass. 50. Furthermore, the offer of evidence was not confined, as it should have been, to those traits of character which the imputed wrongdoing involved. Commonwealth v. De Vico, 207 Mass. 251.
Exceptions overruled.