I concur in the conclusion that a sufficient prima facie case of liability was made out under the pleadings and the evidence to withstand the motion made for a directed verdict, and that for this reason, there was error in the judgment for which a reversal should be ordered.
But I am of the opinion that the defendant enjoyed a qualified privilege under the holding of this court in the case of Myers vs. Hodges,
If there was no such evidence, it was proper for the court to direct a verdict for the defendant. But if there was any intrinsic or extrinsic evidence of malice, it then became the duty of the court to submit the question of malice to the jury, with appropriate instructions.
The character of the publication in this case is of such nature as to warrant a fair inference of malice to be drawn from the bare fact that an article of this kind, which was so far from the truth, was published. This inference, however, like all inference of fact would be subject to rebuttal by a showing from the defendant that there was no malice *Page 808 in fact. For this reason I think the case should have been allowed to go to the jury.
But to hold that a large metropolitan newspaper is to be held liable absolutely for every distorted report of happenings in court procedure which may appear in its columns, on the bare fact that the reports are inaccurate, although published in good faith, is contrary to what I conceive to be the proper application of our libel laws to modern conditions.
My view is that the present day newspaper performs a public service analogous to that performed by telegraph and telephone companies in gathering and publishing the news. In this respect the publication of what purports to be news differs from editorial and other matters which are original compositions and for which a stricter rule of liability can and should be applied. The liability of a newspaper in publishing in its columns matters purporting to be "news" gathered by its reporters and conveyed to it in the usual course of business should be placed on the basis of whether or not the publisher has used due and ordinary care in ascertaining the facts it attempts to publish from an apparently reliable source. When it does so, or when its employed reporters who gather news for it, are competent and trained men in their profession and are not negligent in getting their facts from apparently and reasonably believed to be authentic sources, I do not think the newspaper publisher falls within the ancient rules of the common law relating to libel which originated under the monarchy of England where free speech was looked upon as an unwise institution of democracy and therefore not to be encouraged and where newspapers, where permitted to exist at all, could only do so by grace of the King and Parliament, who not especially favoring them, never extended to them the freedom of the press which has characterized these United States.
In this case the published article made no charge of *Page 809 murder against the plaintiffs because they were already charged with and being tried for murder in the courts. The rule laid down in 36 C. J. 1203 therefore has no real application to this case, which should be controlled by the principle of whether the publisher was guilty of such negligence in failing to ascertain the truth as to warrant an implication of malice in publishing what he did. This is a jury question.
