I do not concur in the opinion of the court overruling the exceptions of the defendant. I am strongly of the opinion, from a review of the testimony and the affidavits of newly discovered evidence, that the verdict of the jury is an injustice to the defendant and that a new trial should be granted to it.
The verdict of the jury receives but scant support from the decision of the justice presiding, denying the defendant's motion for a new trial. After stating briefly the testimony given by the various witnesses, the justice concludes that the testimony is conflicting; that the jury found for the plaintiff; that he cannot say as a matter of law that the verdict is not warranted. The justice does not feel justified in setting the verdict aside, but from the language of his decision he does not give it hearty endorsement. According to the reasonable *Page 284 interpretation of the rule laid down in Wilcox v. Rhode IslandCo., 29 R.I. 292, the decision of the justice of the Superior Court, granting or denying a motion for a new trial after verdict, will be given great persuasive force, but is by no means conclusive upon this court.
The alleged libels are statements of the substance of two interviews claimed by the defendant to have taken place in the town of North Providence, on the 17th and 18th days of April, 1909, between the plaintiff and Edward S. Underhill, a reporter in the employ of the defendant. The plaintiff denies that he had any such interviews with Mr. Underhill on said days or at any other time, or that he ever saw Mr. Underhill until May, 1909, when they both appeared at a hearing before the Town Council of North Providence.
In this state of the testimony, the important fact to be determined is whether the plaintiff and the said reporter were together and had interviews on these days. If it be established that there were conferences between them, then there is no reason to disbelieve the reporter as to what was said at the interview; for the plaintiff is discredited, and the only testimony that we have, as to the conversations, is that of Mr. Underhill as to April 17th and that of Mr. Underhill and his brother as to April 18th. The testimony fairly reviewed shows a preponderance in favor of the defendant upon that point. The reporter testified that the first meeting took place in Centredale in said town, on the beat of the plaintiff, in the evening of Saturday, April 17th, between eight and nine o'clock. The plaintiff denies absolutely that he met the reporter at that time and place. In support of his testimony the plaintiff produced that of his cousin and a number of other persons, who testified as to his whereabouts upon his beat on that evening. As to these witnesses it can be said that they were all friendly to the plaintiff and that their testimony has reference to the hour and minute of certain past occurrences in regard to which there is no reason for the witnesses to have retained an exact remembrance. *Page 285
Opposed to this testimony is, first, the improbability of the invention of these interviews entirely from the imagination of the reporter. The defendant it appears had begun an investigation into the reported laxity of law enforcement in the town of North Providence, for the purpose of publication; and to further that plan had sent Mr. Underhill, who was at the head of one department of its force of reporters, to carry on that investigation. There appears to be no reason on the part of this defendant or its reporter for falsely attacking this plaintiff. He was an inconspicuous police officer of the village of Centredale, who was unknown to either the defendant or its employee before that time. At times, the public press, not perhaps without some appearance of reason, has been accused of using its great power unfairly, and, in the heat of controversy, of harshly and unreasonably reflecting upon the motives and the conduct of persons and of officers; but that a newspaper of standing or one of its intelligent and responsible servants should deliberately fabricate and publish a positive libel against a village policeman is highly improbable. There is no reasonable motive that can be ascribed to the reporter for such an act. He could not hope that these articles if untrue, which were not mere exaggerations or sly innuendoes, but defamation of the most direct kind, could bring advancement or reward to him, or could have any result but a lawsuit with the possibility of heavy damages against his employer and the loss of employment for himself. To avoid the publication of libel must be the constant concern of a newspaper office. A newspaper is at times obliged to rely for the data of its article upon the reports of persons outside its own force. Sometimes, perhaps led by the fear that it may fall behind its competitors, it publishes so-called news without taking time for investigation and verification. And so without intention on its part it is liable daily to offend, and to suffer the consequences in substantial damages paid in compromise or on verdict given against it. With this effect of a libel constantly before every one of that *Page 286 profession, it is quite unlikely that an intelligent reporter, connected with a responsible newspaper, will, without motive, hazard his livelihood and invent for publication a tissue of falsehoods containing not even a thread of truth. To be sure, this improbability will not outweigh positive testimony, but it should have weight in connection with positive testimony in the determination of this matter. Furthermore, as to the fact of the control by the plaintiff of a tract of woodland in North Providence, referred to in the alleged libelous publications, from the testimony it is unlikely that the reporter could have learned this, except from the plaintiff himself. The defendant has also produced positive testimony of apparently reliable and disinterested witnesses which strongly corroborates the testimony of Mr. Underhill. Mr. Underhill testified that he first met the plaintiff on the evening of April 17, when the plaintiff in company with another man was coming out of the drug store of John E. McKenna, in the village of Centredale; that he stopped the plaintiff and entered into conversation with him; that he walked along the plaintiff's beat with the plaintiff; that later they returned to the drug store together; and that he purchased cigars of Mr. McKenna and gave one to the plaintiff. In corroboration of that the defendant produced as a witness Ernest C. Simmons, who testified that he was in the drug store of John E. McKenna between eight and nine o'clock on the night in question with the plaintiff; that as they came out together the plaintiff was stopped by a stranger whom the witness did not know. John E. McKenna, the proprietor of the drug store, testified positively that the plaintiff came into the witness' store on the night in question in company with Mr. Underhill and that Mr. Underhill purchased of the witness a cigar for the plaintiff and one for himself. He also testified that the plaintiff had on two occasions endeavored to get him to say that it was the plaintiff's cousin who came in with the plaintiff on that evening and purchased the cigars, but Mr. McKenna was positive that it was Mr. Underhill. Mr. *Page 287 Underhill also testified that the plaintiff gave to him the business card of the plaintiff's brother-in-law as an address where the plaintiff could be found; that Mr. Underhill wrote the name of the plaintiff upon the back, with a correction in spelling suggested by the plaintiff; that on the same evening Mr. Underhill also noted some memoranda of the conversation upon the back of the card. This card was put in evidence and is before us with the endorsements testified to by the reporter appearing upon it. Mr. Underhill also testified that he arranged with the plaintiff to meet him again at Centredale, on the plaintiff's beat, on Sunday, April 18th; that in accordance with that agreement on said April 18th, he went to Centredale with his brother, Walter B. Underhill; that they inquired of a newsdealer as to where the plaintiff was and afterwards they learned from a police officer that he had been that day transferred to the village of Woodville; that they went to Woodville and there saw the plaintiff and had the conversation with him, the substance of which appeared in one of the alleged libelous publications. To corroborate this the defendant produced the witness, William W. Whitehead, Jr., who keeps a news store in Centredale, who testified that the reporter and another man came to his store on April 18th and asked as to the whereabouts of the plaintiff; also Charles A. McCormick, a police officer, testified that the reporter in company with another young man asked him where the plaintiff was; that he told them that the plaintiff had been transferred that day to Woodville; and that the two young men left in the direction of Woodville. The plaintiff brings in support of his denial of the interview with the reporter and his brother on April 18th, a number of witnesses who testify as to where the plaintiff was in Woodville during the afternoon of the 18th; but the same criticism may be made of this testimony as was made of the evidence offered to disprove the interview of April 17th.
The court in its opinion lays much too great stress upon the fact that the reporter resorted to artifice in dealing *Page 288 with the plaintiff and that these interviews constituted propositions on the part of the reporter that both the plaintiff and himself should commit criminal offences, the plaintiff in leasing a building for the purpose of gaming, and the reporter in keeping a common nuisance. This extended consideration of that phase of the case seems to me to be wide of the mark. There is nothing in the case to indicate that the reporter really intended to hire a building from the plaintiff and open a gambling house. We are not concerned with the question whether in the circumstances of the case the use of dissimulation and misstatement was justifiable or morally defensible. Because of the nature of the plaintiff's testimony, the primary question here is, — did the alleged interviews take place, however improper or immoral the conduct of the reporter may have been? If we find that the reporter is blamable in using artifice, and in negotiating with the plaintiff to hire from him a building for the purpose of gaming, we thereby in effect find that the publications were true.
In considering the reporter's testimony we should of course bear in mind, as throwing some light upon his character for veracity, that he admits having made misstatements for the purpose of throwing the plaintiff off his guard. It must be remembered, however, that a vital part of the defendant's case is that the reporter did deceive the plaintiff. To say that it shall not be believed that the reporter deceived the plaintiff and that the interview happened because the reporter admits that he made misstatements for the purpose of deceiving him is indulging in a circular argument not entitled to quite the importance that the opinion of the majority of the court gives to it.
Since the verdict the defendant has filed the affidavits of three apparently disinterested persons whose testimony was unknown to the defendant at the time of the trial and was not discoverable by reasonable diligence on its part. These affiants state facts which if true show admissions on the part of the plaintiff that he did have the interviews with *Page 289 Mr. Underhill as claimed by the defendant. With the evidence upon this vital issue so closely balanced, if not preponderating in favor of the defendant, I am of the opinion that if a new trial was granted and the testimony of these affiants introduced there is a strong probability that such testimony would change the result. It cannot strictly be called cumulative evidence, but if it were, the rule has been somewhat relaxed and if a new trial will tend to promote justice it may be granted, although the newly discovered evidence be cumulative in its nature. This has been recognized in Hughes v. Rhode Island Company,27 R.I. 591.
From all these considerations I am of the opinion that a new trial should be granted.
MR. JUSTICE JOHNSON concurs in the dissenting opinion.