Opinion of the Court. when it concerns a person and is discommendatory, is always, in the absence of any evidence to the contrary regarded as uncalled for, as published without any lawful excuse, and is not to be believed and considered as true unless its truth be established, or, as the phrase is, such language is presumed to be malicious and false. But if it is language concerning a thing, no such presumption is indulged, and upon those who allege language concerning a thing to be false and malicious is the burden of establishing those conclusions by other evidence than that afforded by mere production of the language. And besides, to give a cause of action for language concerning a thing, damage, general or special, must in all cases be alleged and proved." In Marlin F. A. Co. v. Shields, 171 N. Y., 384, Parker, C. J., after reviewing Tobias v. Harland, Kennedy v. Press Pub. Co., and Dooling v. Budget Pub'g. Co., heretofore cited, and Le Massena v. Storm, 62 App. Div., 150, (a suit in slander), all to the effect that "words relating merely to the quality of the article made, produced, furnished or sold by a person, though false and malicious, are not actionable without special damage," adds: "We need not stop to consider the reason for the rule for it has been too long and too firmly established to admit of question at this day." The holding in the instance case is that "unjust and malicious criticisms of a manufactured article, published in a magazine, for which the manufacturer has no remedy at law because of his inability to prove special damage, are not the subject of equitable cognizance, and Opinion of the Court. their future publication cannot be restrained by injunction." Reference to other cases of like import, cited by counsel for plaintiff in error, will be found in the Reporter's notes. A not unimportant consideration pertinent to the general subject is that of so-called privilege. It rests upon that clause of our Bill of Rights, section 11, which provides: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press." Then follows that which relates to criminal prosecutions for libel, to the effect that if the matter charged as libelous is true, and is published with good motives, and for justifiable ends, the party shall be acquitted. The liberty thus given is to publish truth with good motives and for justifiable ends, and this is so whether the publication affects government, property or individuals. Not that this implies a distinction as to limitation of right between a newspaper publisher and any other individual, for the publisher is not, at common law, privileged as such in the dissemination of news, but is liable for what he publishes in the same manner as any other individual. But it is not to be inferred that the publisher is subject to any severer rule as to liability. Townsend on Libel, sec. 252. Hence it follows, as held in Henwood v. Harrison, 7 L. R. C. P., 606, that "the fair and honest discussion of or comments upon a matter of public interest is in point of law privileged, and is not the subject of an action, unless the plaintiff Opinion of the Court. can establish malice." The rule is more fully stated by Gray, C. J., in Gott v. Pulsifer, 122 Mass., 235: "The editor of a newspaper has the right, if not the duty, of publishing for the information of the public, fair and reasonable comments, however severe in terms, upon anything which is made by its owner a subject of public exhibition, as upon any other matter of public interest; and such a publication falls within the class of privileged communications for which no action can be maintained without proof of actual malice." A recent text-writer indicates an opinion that the word "privileged" means that the words are not defamatory-that criticism is no libel. Newell on S. & L., p. 566. Either construction vindicates the right. See, also, the comments of the author on the general subject on pages 567 and 586. See, also, comments of Townsend, in his work on libel, sec. 252. Also Folkard's Starkie, secs. 255 and 256. Attention is called to Mauk v. Brundage, 68 Ohio St., 89, as justifying the ruling below. We think that case so essentially different as to afford but little, if any, light. The publication directly concerned acts, practice and treatment of his patients by the party as a physician, and so affected him injuriously in his business; in no sense was it a libel upon his property. Nor do we find any Ohio case on an exact parallel with the case at bar. Davis v. Brown, 27 Ohio St., 326, was for defamation of a person. The court held that to be actionable words must import either a charge of an indictable offense involving moral turpitude or Opinion of the Court. infamous punishment; or impute some offensive or contagious disease calculated to deprive a person of society; or tend to injure him in his trade or occupation; each class affecting and confined to defamation of the person. That isn't our case. The other Ohio cases cited by the counsel, each and all, involve charges against or defamation of, the person; not one of the charges is directed against property. Among the cases specially referred to by counsel is that of The State v. Smily, 37 Ohio St., 30. That was a criminal prosecution upon an indictment charging the defendant with having falsely and maliciously published of another that his house had been searched, under legal process, for the discovery of goods recently stolen, and supposed to be there secreted. This court held the publication to be a libel. There is a discussion in the opinion as to certain distinctions that exist between words spoken and the same words written and published. These distinctions are recognized by the text-writers and by certain decisions, but as we do not rest our conclusion wholly or mainly on cases in slander, but principally upon cases in libel, it is not necessary to pursue the reasoning upon which those distinctions obtain. As to this criminal case, it is enough to say that it concerns the person only, and, in its facts, there is no sort of resemblance to the case at bar. We have felt it safer to adhere to what we conceive to be the well established rules respecting actions of this general character rather than seek to extend or enlarge them, and in this course we but follow the policy of decisions beginning with Wilson v. Rob Opinion of the Court. bins, Wright, 40, followed by Alfele v. Wright, 17 Ohio St., 238, and of Davis v. Brown, supra, where comment in both the other cases is quoted to the effect that: "We feel neither disposed nor authorized to extend the innovation." It is true that these three cases were actions in slander, and that the innovation demanded was the application to words uttered concerning a man rules regarding liability which had been held to apply to words uttered concerning a woman, but we are unable to perceive why any distinction should be made as to the matter of policy itself. It is urged by the learned counsel for defendant in error that this court should look beyond the part held by the trial court as libelous and consider the entire article in determining whether at the conclusion of all the evidence a verdict should have been directed. We agree with this claim and have examined and considered the entire record. Such consideration, however, leads to the conclusion that the excluding from the jury of certain parts of the article, being all that part except the paragraph herein before quoted as part of the charge to the jury, save for such use as may be pertinent for an understanding of the statement of "The Labyrinth" being received frigidly in Cleveland and hissed in London, was entirely proper as is shown by the learned judge's opinion, which well justifies the withdrawal. A synopsis of it here follows: There is nothing in the article, says the judge, which reflects disparagingly upon Miss Nethersole's private character or which tends to subject |