
    James W. Putnam, Respondent, v. The Press Publishing Company, Appellant.
    
      Libel — a cha/rge that one clergyman made false statements as to another—proof thaP the statements were false is competent under a plea of justification — a resolution, of-co?ifidence adopted, after the publication is incompetent.
    
    Where an action for libel is based upon a series of articles published by the-defendant, one of which charged the plaintiff, a clergyman, with having published a pamphlet falsely accusing an associate clergyman of gross immorality with a woman, the defendant, in support of a plea of justification contained in, its answer, is entitled to prove that the charge of immorality, which was conceded to have been, made by the plaintiff, was false.
    Where one Of the alleged libelous articles is an account of an interview with a, person connected with a church in Philadelphia of. which the plaintiff had formerly been pastor, in which it was stated that the plaintiff could never get another church in-Philadelphia, the plaintiff is not entitled, after testimony has-been given of the circumstances under which lie left the Philadelphia church, to offer in evidence a resolution passed by that church, several months after the publication of the article, in which it expressed its confidence in the plaint-tiff, as such evidence is mere hearsay.
    
      Appeal by the defendant, The Press Publishing Company, front a judgment .of the Supreme Cohrt in favor of the plaintiff, entered, in the office of the clerk of the county of New York on the 1st day of November, 1898, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 7th day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      John M. Bowers, for the appellant.
    
      Franklin Pierce, for the -respondent.
   Ingraham, J.:

The defendant, the publisher of a newspaper in the city of New York, published a series of articles in relation to the plaintiff’s connection with a chui'ch of which he was a pastor, and this action is brought to recover the damages sustained in consequence of such, publication. It is conceded that the articles were libelous per 56. The substantial defense was a justification. The complaint alleges ten separate causes of action, each consisting of a separate publication. These articles related to a controversy between the plaintiff and one Potter, who were co-pastors of a church located in New York city, known as the “ Baptist Tabernacle.” While occupying that position the plaintiff made charges against Potter of the most serious-character. The publications by the defendant related to these-charges and to the proceedings taken to investigate them. ' One of the publications contained a report of a committee appointed by the-church to investigate these charges, in which the chairman of thecommittée reported to the meeting: “ I do not hesitate to pronounce-that James W. Putnam is a deliberate, adroit and monumental liar. The circle of his actions is dotted with falsehoods from center to circumference. I denounce him.” The complaint alleges that the defendant thereby charged, and intended .to charge, that the-plaintiff, “ a minister of the Christian religion, as aforesaid, and a. clergyman of the Baptist denomination, was ‘ a deliberate, adroit and monumental liar; ’ that he was guilty of circulating a lot of lies ; was a dishonest man; that his conduct was unworthy of a Christian minister and unworthy of a Christian man, and that he'was a notorious liar and not entitled to credit and confidence by the members of his ■church.”

The defendant in its answer alleged as to each of the causes of action that the articles published were substantially. true; that the- charges, among others made by the plaintiff against Potter, were that he was intemperate and that he was guilty of flagrant immorality, and that each of these charges was false. Another of the publications complained! of in the complaint was the account of an ex parte council of the Baptist church which was called by the plaintiff, and at which the plaintiff presented a pamphlet distinctly charging Potter with gross immorality with a woman whose name was-not given. The answer expressly alleges that these charges by the plaintiff against Potter in this pamphlet were not true; that the said pamphlet proceeded to give in great detail the relations existing between Dr. Potter and a servant in the employ of the •Young Women’s Home and also its housekeeper, and that these statements are false, especially a statement of what occurred on March 7,1893 ; and it makes pages 27'to 33, inclusive, of this pamphlet a part of the answer, and alleges that the statements therein are false. The plaintiff testified that this allegation related to a woman named Margaret Burke, who was in the employ of Potter, or of the church of which he was a pastor.

Margaret Burke was called by the defendant as a witness and testified that she worked in the Young Women’s Home, or for Dr. Potter at the Church of the Tabernacle; that she worked there about three years and was there in the spring of 1892 and 1893. She was asked whether she at any time was alone with Dr. Potter. To that she answered, no. This was objected to by counsel for the plaintiff as irregular and immaterial. The objection was sustained, and the defendant excepted.. The defendant’s counsel - then stated that he expected “to prove: by this witness that all that portion of the pamphlet on which the indictment was found, and which has been read in evidence to the jury and marked Deft’s Ex. No. 3, was,, and is, absolutely false and untrue, and by Mr. Putnam known to- be false and untrue at the time he issued it and at the time he circulated it.” Counsel stated“ I propose to show by the witness that slie never was alone with Dr. Potter, that she never committed adultery with Dr. Potter, and that she is, and was at the time charged by Mr.. Putnam, and always has been, a virtuous and good woman.” To that offer the court replied : I regard such evidence as immaterial to the trial of the issues in this action and will exclude the evidence.”

Counsel for the defendant then stated : “ I also propose to show that the pamphlet referred to this lady and that she was the person described therein.” The court replied that the evidence would be excluded, and-the defendant excepted. F urther evidence was offered by the defendant to show that this charge of immorality between Dr. Potter and this woman was untrue, which, upon objection by the plaintiff, was excluded, the defendant excepting. We think it was error to exclude this testimony. The main question of fact was whether these charge conceded to have been made by the plaintiff against Potter were false and were known by the plaintiff to be false when he made them. It is not disputed by the defendant but that a publication charging a- clergyman with having made false charges against a fellow' clergyman involving his moral character and which were known by the party making them to be false, would be a libeller se. ' It certainly is a good defense to a civil action based upon such a libel to allege that the publication complained of was true; that the charges which were made were ' false and were known by the person making them to be false when made. This complaint again and again alleges that the defendant intended to and did charge this plaintiff with making false and scandalous charges against Potter, knowing them to be false;. and the defendant, as a defense, alleges that this plaintiff did make such charges against Potter ; that such charges were false and were known to the plaintiff to be false when he made them. Certainly to prove that defense it was competent for the defendant to introduce evidence to show that the charges made by the plaintiff against Potter were false, and that the plaintiff knew that they were false when made. There is no question but that one of the main charges of the plaintiff against Potter was as to his relations with this woman on March 7, 1893 ; and the answer expressly alleges that this charge against Potter was false. It was essential for the defendant, if it was to establish this defense of justification, to prove that the charge made by Putnam was false as a fact. The defendant attempted to prove that the charge was false by calling the woman with whom the adultery was alleged to have been committed, but that testimony was objected to-by the plaintiff and excluded by the court. The libel, so far as it. alleged that the plaintiff had! presented an unfounded charge against Potter, could only be justified by proving the fact that the charge was false. The answer alleged such justification, but the court refused to allow the defendant to prove it. The serious consequences-to the defendant of this ruling appear from the charge of the court. The jury were instructed that the various articles constituting the libel, among other things, charged the plaintiff with fighting for delay in the investigation of the charges made by him.against Potter; that the plaintiff was playing a game of political delay ; that the object of his charges against Potter was to smirch him and to ousthim' from his church ; that the plaintiff was a liar, a “ deliberate,- adroit and monumental liar; ” that he was the author of scandalous charges against Potter, and that he was. unfit even to become a church member, and that he had been indicted and kept in the prisoners’’ pen; that on behalf of the defendant it is claimed that the articles were in substance and in fact true, and that, therefore, it had the right to publish them that where a party undertakes a justification of a libel, it is bound to prove a substantial justification, that is, not every word, but that the substance and effect of what it has published is true ; that “ the charges contained in the articles in the causes of action in the complaint ’to the effect that the plaintiff - in this action had made these charges against Dr. Potter in bad faith and would not follow them up by proof, and was practicing political delay, and was prosecuting Dr. Potter with' improper motives, if true, was gross misconduct, upon his part, and if you shall find that the statements in said publications were false, you can assess such damages as the plaintiff has suffered therefrom.” The jury were also instructed that the main defense “ in this action is that the various articles complained of as libellous were-in substance true, and. I charge you that so far as you shall find the articles complained of to be true, it is your duty to find a verdict in favor of the defendant.” - '

. Thus it appears that the complaint charges the defendant with publishing of the plaintiff that he made false and scandalous charges against his fellow clergyman, the answer admitting that allegation, but alleging that the charges made by plaintiff against his fellow-clergyman were in fact false and scandalous; the defendant was prevented by thé court from offering proof to establish the fact that the charges made were false; and the court charged the jury that if the charges were false the defendant was entitled to a verdict. The judge also charged the jury that- the question as to whether Rotter was guilty or not of the various charges against him was not to be tried in the action; that it was only to determine whether the plaintiff acted in good faith in regard to these charges that this matter is brought into consideration, and that question is to be considered by the jury in determining the question at issue between —• not Dr. Potter and the defendant — but between Mr. Putnam and the defendant in this case. But even assuming that the only question to be determined by the jury was the good faith of this plaintiff in making the charges, when they were ostensibly based upon the plaintiff’s own knowledge to prove that they were false would ceitainly tend to impugn the plaintiff’s good faith in mailing them. This, charge of immoral conduct with the woman named was based upon the plaintiff’s own observation, and if it was shown to be false, and ■ that what he said as to what he heard and saw was untrue, it would certainly go a great Way with the jury in their •determination of the question as to the plaintiff’s good faith in making the charge. But as before stated, it would seem that, as the libel was largely made up of statements that the charges made were false and scandalous, whether or not the charges were as a fact false was a' material issue involved in the action.

We also are of the opinion that the resolutions of the Temple Baptist Church of Philadelphia, which were admitted notwithstanding the objection of the defendant, were improperly admitted in ■evidence. The first cause of action is based upon the publication by the defendant of an interview with one Hubbard, who appears to have- been connected with a ehurph in Philadelphia with which the jfiaintiff had been connected. After making various statements about the plaintiff’s past life, it Was stated that the plaintiff could never get another church in Philadelphia. Considerable evidence was taken upon the trial as to the circumstances under which the plaintiff left this Philadelphia church. Upon rebuttal, the plaintiff offered in evidence a copy of a resolution passed by the Philadelphia church on August 4, 1893, several months after the publication of the libel, reciting that this interview with Hubbard having been published in the newspaper, and that Hubbard, by interviews and publications, having done all that he could. to injure the plaintiff’s, usefulness as a minister in giving these falsehoods the widest publicity, it was, therefore, resolved that the church esteemed it a privilege to re-express its confidence in.the plaintiff, and its high regard for him as a preacher, pastor and friend; and, second, that the church reminded Mr. Putnam, and all whom it may concern, that the only trouble this church had during his very successful pastorate of over six years was of Mr. Hubbard’s own making, and that a council called for the purpose had put its seal of disapproval on the conduct and untruths to which Mr. Hubbard was then and is now again call-' ing public attention.

It is difficult to see upon what principle these resolutions could be evidence in any controversy between the parties to this action. It was entirely immaterial upon any issue' raised by the pleadings or as to any libel described in the complaint. It is true that Hubbard and some of the plaintiff’s opponents in the Philadelphia church had been examined, and had given their version of the transaction ; but it certainly was not competent to answer their sworn testimony by a mere resolution passed by a. religious corporation in Philadelphia stating that their attacks upon the plaintiff were false and untrue. This was hearsay evidence of the most flagrant character, and when admitted by the court as competent it must have been seriously injurious to the defendant. The plaintiff attempts to sustain the admission of these resolutions in evidence upon the ground, not that they were competent as to any issue raised by the pleadings, but because the defendant by its evidence squarely made the issue that Mr. Putnam was so hated by the Temple Baptist Church for his sermons, in which he criticised his church members, for his arbitrary conduct, and his' conduct as pastor of that church, as to hinder him from ever getting another church in that city. But assuming that the defendant had by its evidence raised that issue, it was to be met by the evidence of witnesses upon the stand and not by a resolution passed long after the libel was published and which related expressly to one of the publications complained of. It was open to the plaintiff to call witnesses to show that the testimony of the witnesses called by the defendant as to the plaintiff’s conduct or relations in Philadelphia was not true, hut it certainly was not competent to take the unsworn declarations of persons living in Philadelphia to dispute the testimony of the defendant’s witnesses upon the stand. The plaintiff cites as sustaining the introduction of these resolutions the rule that where the mental condition of an individual is. at issue, declarations and statements of that individual are competent evidence to show the mental condition as-original evidence, and not hearsay ; hut the mental condition of the: members of this Baptist church in Philadelphia was not at issue in this case ; nor was it such mental condition that was the subject of inquiry. It was whether the defendant’s conduct had been such as to prevent him from getting a church in Philadelphia, and the facts from which the jury were asked to draw that inference were before them, and the plaintiff had the privilege of meeting those facts by competent testimony. But neither the resolution of any particular church nor the declarations of any number of individuals in Philadelphia would be competent evidence upon this issue. We have thus come to the conclusion that these errors are so substantial that they require us to reverse this judgment.

It follows that the judgment appealed from must be reversed and a newtrial ordered, with costs to-the appellant to abide the event. ■■

Van Brunt, P. J., Rumsey, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  