of one who'gave nothing for it, and deliberatelyfook the chances on her husband surviving her? None has been suggested, nor can there be any. Sitting in this court, if the case was to turn on the decision of this question, I might not feel justified on the authorities in sustaining the demurrer to this defense. But if I were sitting in the supreme court of the state, I would do so without hesitation. To provide that a woman shall have, at the death of her husband, dower in all the· lands of which he was seized of an estate of inheritance during the marriage, and then declare that, in case the husband aliened the same during his life, she shall not have the benefit of the intermediate rise in value of the property, is a legal "juggle," that may fitly be characterized as keeping the word of promise to the ear, and breaking it to the hope. Since writing the above, I have been fortunate enough to conie across Powell v. Manufacturing Co., 3 Mason, 347, in which Mr. Justice STORY, with his usual research and wealth of learning, holds that at common law a woman was dowable of the lands aliened, Qyhj3r husban4 marriage, according to their value at the time of the assignment, less the value of improvements placed thereon by' the purchaser, or directly consequent on such improvements;. citing \yith marked approbation. tqe same doctrine, as announced by Mr. Chief Justice TILGHMAN, in 80n v. Morrow, 5 Sergo & R. 289. In conclusion he says: "This dootrine appears to me to stand upon. solid' principlea, and the general analogies of the law. If the land has, in the intermediate period, risen in value, she receives the benefit; if it has deprj3ciated, she sustains the loss; Her title is consummate by her husband's death, and, in the language of Lord COKE. that ·title is to the quantity of land, Viz., one just third part.'" The motion is denied, and the demurrer is overruled.
«(Ji'l'cuit Court, 1.
LmEL AND SI.ANDER URE TO JUSTIFY.
KANSAS CITY TIMES Co.
October Term, 1887;)
w: D. Mi88ouri, w: D.
CHARGE OF INCEST AND PREGNANCY -
If defendant. a newspaper corporation, publishes an article stating that the plaintiff had committed Incest with her brother, and was pregnant thereby, but does not attempt, either by answer or evidence, to establish the pregnancy, plaiutiff will be entitled to a verdict.! .
A newspaper published a statement tha.t plaintiff had committed incest with her brother, and was pregnant thereby. At the trial for libel it did not attempt to prove pregnancy. but introduced testimony as to the incestuous the truth of the matter charged, as libelous. must. be as broad as the defamatory.accusation. Thompson v. Pioneer Press Co., (MinD.) 33 856. . ITo constitute a complete defense to an action forUbel, a justification,. by alleging
FEDERAL REPORTER. plaintiff Held, that though technically the plain-, tiff w:ollld l;>eentitled to a verdict, ye,t if the jury believed she were, guilty of incest. her reputation could not be seriously injured by the charge. '
8.SAME-'-CHA1UCTER OF PLAINTIFF-EVIDE:I<CEi.
In an action against a newspaper for libel, defendant introduced testimony to show the untruthful character of the plaintiff. and that at the funeral of two childrim, with whose murder, the libel was connected, plaintiff was laughing. and showing a feeling of indifference. Held, that these facts were to be considered,in estimating the true character of the plaintiff.
SAME-NEWSPAPER ARTICLE-SOURCE OF INFORMATION.
In an actioiiagainst a 'newspaper for libel, it appeared that the article in' question was taken from a neighboring sheet as a mere matter of news, and with no circumstances of aggravation or malicll., Held, that the plaintiff was entitled to compensation for the injury suffered, tJ.nd the manner of the pub,lication wall to be considered by the jury, either iIi mitigation or aggravation of damages,I, In an action against a newspaper for libel, held, that matters that transpired after publication cannot be considered in mitigation of damages.
SAME-DAMAGES-TRANSACTIONS AFTER PUBLICATION.
Action for Libel. CroBby &; RUBk, for plaintiff. J. W. Wdfford, for defendant.
BREWER,J., (charying jUiT"!!.) I congratulate the parties in this case that the question between them is to be submitted to a jury of your intelligence, and one who has so patiently watched the progress of the trial. I regret to say 'that much of the Rrgumentof counsel on both sides has been matter of denunciation and appeal, matter which I think helps a j;uryvery little in determining the real rights of the parties. You are pot trying the ,case ,between the ootmeel, but between the parties', and we are to,try;the;case upontpe' eviqellce before us., Well-re not to go out of this case and consider other questions, or other parties; we arenot here to try over again theque'stion of the guilt of Oliver Bateman. That murder case comes only incidentally and collaterally into this case, and the question we are to try i/:!between the plaintiff and defendant, growfng out of the fact that defendant has charged her with wrong-doing. the charge I will not read. The article which was published has been that this plainread in your headng. ltis, substantially and in tiff was guilty of incest with her brother, Oliver Bateman; that is one specific It says, growing outof .that incest,pregnancy followed, and that she was then with child as the result of this incestuous iiitercou'rsef itndthen it says that 'this incestubus', relation, continuing occurring on dayo! the murder, was the real and primary cause ",IInan aotlon for libel e'oidenceisildfilissible in mitigation' of damages that the defendant believed ill the truth of the charge:all"ged to be :Ubelous; M.orris v. Lachman, (Cal.) 8 Pac. Rep, 7119; when' the charge is made afterreasollable and properinvestiga. non, Bronspn ,v. BrH(\e; tllfi\lp.) 26N., W. Rep. q7L TlW,faot that all articlepl,lblished in anewspaP'ElJ' and. Ch;l\rglld a8 ,from, a,llOthf!r paper. without any p( li!pil,/!/L];l,llorlll, m:%, be. sllfilwn lIlmitigatlOn 9f damages:,' Butthisfact IS no justIficatIOn. Regcnspergcr v. KIefer. (Ps.) 7 Atl. Rep. 724. If It appear that there was no intention to injure, ill the publication of a libel, and all proper precau:tions were observed in 'such publication, the am ount of recovery will be limi ted to such damagesas,mustinevitablyhave resulted .from the wrong. Evening News. Ass'n v. Tryon, (Mich.) 4 N; W. Rep. 'li37.,
EDWARDS V. KANSAS CITY TIMES CO.
of the commission of that ·criine. Of course, these two latter charges rest upon the first and principal one,-that is, the charge of incest; and yet they are each of them contained directly, or by plain implication ,in this article. The defendant does not attempt, either by answer or evidence, to show that the plaintiff WaF! in fact pregnant; therefore, under the pleadings as they stand; as that is a charge of matter which necessarily and naturally exposes her to the contempt of her fellow-beings, the plaintiff is entitled to a verdict, and the question which you are to determine is the amount of that verdict. It may be under the pleadings any sum from one cent, a merely nominal verdict, up to $50,000, the amount claimed. It is not an easy matter in caseaof this kind to Bay exactly what a verdict should be. So far as tbe question of the a:mount is concerned,.there is no market value. If the defendant had been.charged with carrying off and destroying a thousand bushels of wheat belonging to the plaintiff,you would have little difficulty in determining how much you should · award her by your verdict, for wheat has a market value. It is bought and sold day by day. But there are. mnnythings that have no market value. A'lirnb, a life, hasnorilarket value; a. man's hand is taken off in a railway accident,-there is rio market value: from which you can say it was worth so much; no more can. you, when we are dellling with this intn,ngible, but no less real, thing, a. person's character and reputation, coin it into dollars and cents; and yet it is well settled,and justly so, that he who takes away a limb of another negligently, shall make him compensation, and he who injures another's character. in like. manner shall make him compensation, and in ·the ordinary proceedings of our legal system the question is left to the deliberate judgment of 12 · men, taken 'from th'e body nfthe people; men ,of different experiences ; in life; men of prudence, intelligence, and integrity, .who are to say what, in their judgment, will compensate the plaintiff for the lnj tiry. In this case it matter of compensation alone. Cases sometimes arise where a newsp(l.per, or an individual, wantonly, maliciously,COTruptly, al1d with the intent to degrade and destroy one's reputation, publishes a libel against him. In such cases the juryare'warranted,and many times it is their duty, to,do more than sim'ply compensate,-they: may · give what the law calls punitive damages, that i$, damages by way of punishment; andiwhenever a case is presented in which one occupying the responsible'position of proprietor of It daily newspaper, especially one of large circulation and importance, so prostitutes his position and uses his power that, to gratify priV'ate malice, for the mere sake of punishing one whom he hates and desires to ruin, he publishes a gross falsehood agaillsthilll, then my convictions and feelings· are so strong and intense that I should feel it a duty which! owed to the community to urge upon a jury to give such, a verdict, such Ii ringing verdict,as'would not merely punish him for his' wrong, but also be a lesson to aU others oocupying a similar position. "Just the same alt Iwould if, for instance, · one oryou jurymen, sworntodojilstice between, thisplaintHf-:aud defendant, should I either out of affectionfol' or hl,l;tred to,the
defendant, give her a larger verdict than she is entitled to, or a less verdict out of favor or through affection for the defendant,-just as in such a. case I should feel that it was my duty to call upon a jury trying that case to punish you severely on account of your action. But this case is not such a case. The plaintiff introduced no testimony tending to show that the, defendant had any malice or feeling against her; on the contrary, it affirmatively appears that the article as published by the defendant was taken from a neighboring sheet as a mere matter of news, so that no circumstances of aggravation, wantonness, or malice,which justify and 'oftentimes compel a ringing verdict for the purpose of putting a stop to such wrong, exist in this case. I do not mean to say that that takes away Jrom this plaintiff; inthe slightest de"gree, the right of compensation for the injury which she has suffered. I simply mean to say to yo\1gentlemen that it is your duty to inquire simply how much has this plaintiff been injured. What will com pen'sate her for the wrong that has been done? And that amount she is entitled to at youl'hands. .Howara we to deterinine what is compensation, is the thing to be coilaidered.' It may be a matter of comparatively little moment if the itself trivial. If the ,publication against a politician was simply that is.aliar, you might say that that was not a very aggravated charge; but when you oharge a grave and serious crime against another, thEm the injury to character is certainly of a different kind. Now I need. not say to you that a charge against anyone of a crime of this· character is to charge an offense ofa serious nature. It is humanwithu$; we could not be men, honest men; and not feel shocked to think that a girl would commit a crime so revolting as incest with her own brother. Another matter for you to consider is this. What was her charac,ter,her reputa1lion? We use the term "charactel'''often in two senses: in one sense it is 'used to refer to one's actual life; in another, and that is the sense in which we use Hin this case, it is the reputation which we bear in the community_ Of course, what you may say about me does not change me. If I am an honest man, if my life has been pure, the Jactthat everyone of you may say that I am dishonest and impure does .not change the fact. My life, my character in that sense is not changed; bU,t if I have lived during 50 years of life in such a way that the com· niunity believes I am an honest man, that I am a pure man, that is my · reputation in the community in which I live. If you publish a false statement that lam dishonest, that I am impure, you know bow people will float this statement from one to another, until the community may , come to believe'that I am dishonest and impure. By this libel you have injured my reputation in the community, and that is something · which every honest man prizes,-his good name in the community in which he lives. Now if it so happens that my life has been dishonest and impure,and you charge me with that, and prove that thatis the fact, then I 'am entitled to nothing, for you have simply made public the actual truth. So, on the other hand, if, whatever may have been my actual life, the community here believes that I am dishonest, that I am