,court depends upon theniture of the controversy and fh'e: quel1l'tio!ls' litigated) thctcomplairit alone is to be for' the 'pui'pO$e of ascertaiIiing"the ,nature of the and fi,nding out questions are'involved. Although .defendants by their pleadin(58 may introduce new'matter and raise additional questions, they cannot so change the case as 'to make it cognizable in a federal'court,'if;ltwas not so attheoutset. Walker v. O>llins,167 U. s'5't:-60, 17 Sup. Ct. 738. ' , , " ' , ., 4. Where two defendants are' and the plaintiff demands judgmentagainst both, the ClJUlrt cannot assume that either one of them is the real party 'ag:'rhist whom the plaintiff intend,;, to wage his action, and that the bth'erMs been joined' as a co-defendantnieretv for 'the p'ntppSe of th.e real defendant of his right to remove the case ,into a United Stlltes circuit ',In ,order to sustain the of the fe4eral court on it ,is necesS,ary 'thE! removing defendant to and prove such fraudulent purpose oli tHe part of ,the plamflff. 'yai'itx Railway Co'.; 72 Fed. 'Accordin,g to these principles, 'this ease must be rem..anded. It is .Ih·obtdHe.tlmt the plaintiff will liot: ,obtain a "erdict against both in, the state court, aPrdthathe may wis,h to dismiss as to one them, and endeavor to a judgmeht other. When that attempt' is made, if the, defendant Root shall be dismissed froni"tHe case on the plaintit+"s motion,. the bart? the right 'or removing the case, into ,this court on the ground of diversity of eitizenbregon Rflilroad. & Navigation Comship will' be eliminated, and panY' :wiptJ;len 'the right to file a and bond for removal,' ij" before hLkingany other s.tep it elects to.do Bo. Powers v. RailwAy 'Co., '169 U. S. 92-103,' 18 Sup. Ct. 264. ,In the present situation of the case, the court is, without jurisdiction, and the motion to:,remaild must be granted. , " : ' , ':'
I. " ..'
TIMES PUB. CO. v. CARLISLE. JOURNAl. 00. v. SAME. CO. v. SAME.
(Circuit Court of Appeals, Eighth Circuit. No,s. 1,137-1,131:1.
May ,8, lSl.ltl.)
' A good name is more estimable than tangible property, and as valuable, and, the l!\'w gives corresponding redress for its injury; 2. SAME.....EvIDENCE-PRESUMPTION FROM GOOD REPUTATION' ()F PI,AINTIFF. is presl\med to be innocent of crime until' he is proved to be guilty; but there is a stronger presumption that a lUan of good reputation is not guilty of a criminal charge, and he Who ,attacks the reputation of 'such a man cannot escape the ,effect of this presumption.
S. SAME-NECESinTY OF PROVING ACTUAJ,]<tALICE.
'Dhe unprivileged publication of matter that is false and libelous per se warrants the recovery of compensatory' damages, without allegation or proof of malice in its ordinary acceptation; that is to f:ay, ill will, bad motive, hatred, or intent to injure.
TIMES PUB. CO. V. CARL}SLE
Malice, in its legal serise,-that is to say, "an act done wrongfully, withouilegal justification or excuse,"-is conclusively implied from such a pUblication. The fact that the information from which such a publica,tion was made was derived from another, Who made or repeated the charge it contained, and that the name of the informant was stated in the libel, is nojustification for its publication. Exemplary damages may be allowed by the jury, in an action of libel, when the publication was made with ill Will, or a willful intent to injure the party libeled, and the matter published was false, libelous, and unprivileged.
5., SAME-UNPRIVII,EGED PUBJ,ICA'I'ION-JUSTIFICATION.
A violation of the rights and feelings of the victim of a libel, which is caused by· a reckless disregard of them, is the legal equivalent of an Intentional violation of them. Exemplary damages may be allowed by a jury, in an action of libel, when the publication has been made with a reckless disregard of the rights of the person libeled, although it was not inspired by ill will, spite, or intent to injure him.
1}, BAME-(j,UESTIONS FOR JURY.
In an action of libel,it is ordinarily a question for the jury, in view of all the facts and circumstances of the case, whether or not exemplary damages should be allowed; and the amount of such damages is exclusively within their province. The federal courts in )fissouri are not required to follow the statute of that state (Laws 1895, p. 168), which requires juries, in cases in which exemplary damages are allowed, to assess such damages separately.l A corporation is liable for exemplary damages for acts done in the course of' its business, by its agents, while acting within the scope of their authority and duty, to the same extent as an individual; and a corporation publishing a newspaper may be liable fo,r such damages for circulating a libel therein. Under the Code matter in mitigation of damages for the publication of a libel must be, pleaded before it can be proved.
J<'EDERAL CbUR'I's-Fou.OWING STATE PRACTICE.
11. LIBEL-LIABIl,ITY OF CORPORATION.
12. SAME-PLEADING-MATTER IN MITIGATION.
In Error to the Circuit Court of the United States for the Western District of }fissouri.
These were tiJ.ree actions for libel. The defendant In error, Harold Carlisle, was a merchant, livi!;lg with his wife, in Kansas City, in the state of Missouri, where he had resided for more than two years, on February 20, 1897. He was 44 years old, and had a good reputation for honesty and integrity. He was engaged with one Peters, under the firm name of Carlisle & Peters, in trade in gents' furnishing goods, at,818 Main street, in City. lIe was born in England, and came to this country in 1879. He ad been engaged for many years in the business of raising, buying, and selliug cattle in New Mexico and Kansas. From 1884 until 1893 he was the manager of a cattle company, which had been incorporated in England, and which had a ranch, and sometimes as many as 20,000 head of cattle, in the southwestern corner of Utah and in the northwestern corner of New Mexico. In 1893 that company closed out its stock, and Carlisle and one Gordon, who then became his partner in this business,
1 For conformity of practice in federal to that of state courts, see note to O'Connell v. Reed, 5 C. C. A. 594, note to Griffin Y. Wheel Co., 9 C. C. A. 548, Rnd note to Insurance Co. v..Hall, 27 C. C. A. 392.
94 FEDERAL REPORTER.
the ranch, and conducted the business of buying youp'gcattle, shIppIng them east, l\nd,lfelllng them. Gordon.occupled the ranch, and bOught, cared for, and drove' the' cattle, while Carlisle lived in Kansas City, Illet ,the herds at Dallas, in the state of Colorado, shipped, and sold them. In June, 1896. Gord.on drove about 700 of the cattle of this firm Into Dallas, Colo., where Carlisle met him, and 'shipped them. At this time one Mostyn appeared' at Dallas, and claimed' that'a part of a bunch of 50 cattle, which Gordon had bought from one White, had been stolen by White, and thereupon White was arrested. He was subsequently tried and convicted for the theft. When this claim was made, Gordon produced his bill of sale from White, and Carlisle remarked that, if there was anything in the bunch that had been stolen, he did not want it, and thereupon separated the cattle purchased from 'Vhlte from the other cattle owned by the firm, and turned them over to'Mostyn and a proper inspector for the benefit of their owners. On February 20, 1897, John D. Reeder, the sheriff of Mesa county, Colo., appeared in Kansas City with an affidavit of one Chipman, an information signed by the district attorney of Mesa' eou:nty, a warrant of arrest, an affidavit of the assistant district attorney of Mes!L county' for a requisition, a proper requisition 011 the governor of Missouri foY: Carlisle, alld an order for his arrest and delivery to Reeder on the false charge, which was set forth in these requisitlollpapers, of. having in his possesslOll, on JUlle 4, 1896, eigM head of cattle which he Imew had been stolen by Ed. YOUllg and E. Frank ,Wbite,and which he intended to appropriate' to his own use. all these papers Carlisle was arrested. He declared to all who asked him that he was illnocent of the charge, accompanied the sheriff to Colorado, ll.lld the district of county entered a nolle proseqUi on the charge against him. On,the..E!vening of the of his arrest the plaintiff in error the World PublishiIlg .QoPJ,pany printed and circulated in the Kansas City World an article which gave an account of the arrest of Carlisle, and of the charge UPOll which he was arrested, alld which cOlltailled, amollg other things, theSe words ill addi-' tion;. Reeder arrived here from Colorado Saturday mornillg. He said thatfor, mouths he had been searching for evidellce against Carlisle, who was forrUl]rly in the cattle business at Salt Lake City alld who is alleged to have been operating with a gallg of cattle thieves for money. oil oil '" For a 10llg time cattle thieves have been drivillg cattle off the 10llely ranges in Northern Colorado.' 1.'11e authorities discovered that White drove cattle off the Utah Cattle Company's rallge ill Mesa COUllty and shipped eight head to Dallas, Colo., where they 1-'-.- ] received by Carlisle. Carlisle, ill tum, shipped the cattle to Denver, where they were recovered by Sherill' Reeder before a sale was effected. This was last JUlle. Before this the Mesa COUllty sheriff had. recovered two l'!hipmellts of stolen cattle,-one. of 20, and one of 40, head." On March 12,1897, Carlisle sned the World CO,mpany for p,ublishillgth,e statemellt" which we have quoted, and prayed for jUdgment for $20,000 actual damage> and $5,000 P).lllitive damages., III its allswer to the petitioll of Carlisle tlH World Company set out theelltire article which contained these existence of the requisitioll papers, and the proceedings Which they evIdenced, and pleaded that White and 'Young stole 40 cattle, and delivered them to Gordon, who held them until they were identified as stolen cattle, and taken from the drove of Carlisle lllld Gordoll by thesherift', alld that White alld YOUllg had been arrested, alld White had beell cOllvicted of stealillg the cattle. It also pleaded that Reeder, the sheriff, whom it believed, alld from whose officilll position and appearance it was justified III believing, to be reliable and trustworthy; stated, in the presence of its reporter and others, substalltially all that the artiCle contailled about the defelldallt ill elTor before it made the publjcation, and that it published the statemellts in it Without allY malicious intent, and without any desire or illtent to illjure Carlisle. 011 the morning of ]'ebruary21, 1897, the I11allltiff ill error the .Tournal Com pany pUblished in, the Kansas Clty.JouI'llal all',accoullt of Carlisle's arrest, RU. of the charge upon which his arrest was made, and, alllOllg other thillgS, the", words lri' addition: "Sheriff Reeder arrived ill KallllaS City yesterday. HI claims he has beell searchillg for evidence agaillst Carlisle for six mouths, an" that Carlisle has beell associated with a gang of cattle thieves, which has operated to some extent ill Utah, stealillg about 60 head of cattle. oil · oil l!'or some time past cattle have beell driven off the Utab Company's mnge in
TIMEt:! PUB. CO. V. CARLISLE.
county, Colo. Sheriff Reeder learned that Frank White had driven 18 head of cattle off the range, and shipped them to Dallas, Colo., where it is claimed Carlisle received them, and shipped them to Denver. Sheriff Reeder recovered the catile before a sale had been efj'ected, however. Sheriff Reeder claims to have recovered two shipments of stolen cattle before this,-one of 40 head, and one of 60 head. He claims Carlisle made both shipments." The defendant in error thereupon sued the Journal Company for publishing the statements we have quoted, and that company answered in the same way that the World Company did. On the same morning, the plaintiff in error the Times Publishing Company printed and circulated in the Kansas City Times an account of the arrest of Carlisle, and of the charge upon Which it was made, and, among other things, these words in addition: "The police of this city and John D. Reeder, sheriff of 1fason county, Colo., allege that he has been at the head of an organized gang of cattle thieves, that have run off a great deal of stock from Colorado cattle ranges. * * * It is claimed by Sheriff Heeder that Carlisle, Who, together with a man by the name of Gordon, is interested in a cattle ranch at Dallas, Col(i)., purchased 60 head of cattle 18 montbs ago, and 8 head of cattle last June, which were stolen from the Utah Cattle Company." Thereupon Carlisle brought an action against the Times Company 1'01' publishing the statements quoted, and that company answered in the same way that the Journal Company did. On the motion of the plaintiffs in error, the three cases thus cOll1lllenced were consolidated and tried together. Carlisle did not claim any in his petitions, or on the trial of these cases, for the publication of the fact that he was charged in the requisition papers with, and was arrested for, having eight head of stolen cattle in his possession, wbich he knew were stolen. His claim was for the publication of the eharges contained in the statements we have quoted, and his allegation was that their publication was false and libelous. The gravamen of these charges, stated in different language, was that Carlisle had operated with, or been associated with, or was the head of, a gang of cattle thieves. There was no evidence at the trial that these charges were true. There was evidence that Reeder made the charges when he visited Kansas City for the purpose of making the arrest, and that he made them in the hearing of the reporters of the plaintiffs in error before their articles were published. The reqUisition papers were received in evidence, and the fact was proved that they were seen and examined by these reporters before the publications were made. The jury returned a verdict of $2,500 against the World Company, of $2,685 against the Journal Company, and of $4,580 against the Times Company; and it is the jUdgments upon these verdicts which the writs of error have been sued out to reverse. I
Frank Hagerman, D. B. Holmes, and Frank P. Sebree (Henry C. 1tfcDougal and L. C. Krauthoff, on the brief), for plaintiffs in error. I. N. Watson and Shannon C. Douglas, for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. SANBORN, Circuit Judge, after stating the facts as above, deliY· ered the opinion of the court. "A good name is rather to be chosen than great riches, and loving favor rather than silver and gold." The respect and esteem of his fellows are among the highest rewards of a well-spent life vouchsafed to man in this existence. The hope of them is the inspiration of his youth, and their possession the solace of his later years. A man of affairs, a business man, who has been seen and known of his fellowmen in the active pursuits of life for many years, and who has developed a good character and an unblemished reputation, has secured a possession more useful and more valuable than lands, or houses, or silver, or gold. Taxation may confiscate his fands; fire may burn his houses; thieves may steal his mone.y; but his good name,
ought togo with ihim to the£>u'dJ...-a ready shield ·'t,Mti.ttl1¢ks, I)fhis' 'tt: in., the competition: ot, daiIy.:Ufe, ,is innocent of wfongUJltilheia proved. guilty; .QUt,)wneJ;l'ahflinous crime isc'hargedupon"3: man whose'clJl.aracter andi reputation for have, the mumty III which he 'has lrved; that character and'thitreputatIon his innocence, and raise a still strongel;', tion,which aClJompanies him lin pUblic and in private, in court and in- council, situation in life, and wbicli is acted upon and recogniie<'l4aily'ny,allmen,;--a,presumptiontltat 'such a man would not be guilty of such a crime. ,D. ,S.v. Shapleigh, 12 U. S. App.26, 42, 4ft O. A. 237, 246, and 54 Fed. 126, 135. The law recognizes'th,eval,ue of su¢h' a reputation"and constantly strives to give redress fo.r injlu:-y. , upon him w:lioattacks it by sIan: derous words, or by puplication, a to make full compensation for the damage 'to the.reputation,fof the shame and obloquY,and for the inj UljLtO, the feelings of im owner, which are c,a,'usoo ,bY the pp,blication 0,,f, slan,d, Or',Ube,i.',' ,It. goes,'" , wQrd$ .are spoken, or publication is the intent to injure the, victim, or with a criminaLindifference :to civil obligations, it imposes such damages as a jury, in view all the circum· stances of particllJ.ar that the ought topay, tlje.p,i,Iblic, tpdeter others from committing like offenses, and asa'punislilment for the infliction of the injury. 'These general untiJuestioned.':But the books are of J()}'tOiV 'flit, ' IS ,an, essentIal" e»forcement of these lIabIlIties. Much of the discussion arises :from" and ,a large part 'of the confusion is caused by, the different 'meanings which this word has grown to have. In the i)tffinary'acceptation of it signi· nes ill will, evil intent, or hatred; while its legal signification iH llefined to be "a wrongful.ayt, done intentionally, without legal justifiCation or excuse." Darry v. People, 10 N. Y. 120, 139;' Buckley v. Knapp, 48 Mo. 152,,161;' Clements v. Maloney, 55 Mo.' 352, 359. When we come to read the text-books l:tnd the opinions of tHe courts outhis subject, we tind tl1e and the judges .U$ing the word alternately with one and the other meaning, so that close attention to: the Sense in wl,J,ich in each instance is requisite tq a dear understanding of the statements of the writers ,and of the of the, courts. In many ,decisions it.is laid down as a settled rule that mitlice is eSl3ell;tial to a recovery !in an action of libel, tbatit is conclusively implied frp,J.ll the unprivUege,d publication j()f; charge in itself. v.,KJ,lapp, 48 N0. 161i Callahan v. Ingram, 370,.26 S.,W. lP;W" This, ,m!leed, IS a Qf: law, and IrIS ObVIOusly a stateJIlen,t where "malice" as it does in this declaratiRp., that :of malice wbichis a;lwaY!3I inferreR. from "a wrong,ful act, done intenti,onaIly, witqQut justifl,cation, or,. for it !sa truism to ,say that mance .is theeonclusive inference from such an act, and that, since the publication of a false charge that is libelous per se
TIMES PUB. CO. V. CARLISLE.
is without justification or excuse, malice is implied therefrom. This declaration of the law has exactly the same practical effect as the more simple and more philoS<lphic rule that malice, in the common acceptation of the term,-that is to say, ill will, evil intent, bad motive,-is not required to be either pleaded or proved to entitle the injured party to recover the actual damages he has sustained from the unprivileged publication of a false and libelous charge. The person libeled is as clearly entitled to full compensation for the 'loss he has sustained from a wrong inflicted with a laudable motive,or through mistake or inadvertence, as from one perpetrated from a bad motive, or with a diabolical intent. Ullrich v. Press Co. (Sup.) 50 N. Y. Supp. 790, 798; Hamilton v.Eno, 81 N. Y. 126; King V; Root, 4 Wend. 127. It is a corollary to these rules that it is no justification for the publication of such a libel that another had spoken or written the false charge, and that the libeler simply repeated his statement, and that he gave the name of his informant. It is no defense to an action of trespass that another trespassed" and informed the defendant how to do it without expense or trouble; and it is no excuse or justification for an injury to a fair reputation that another has commenced to besmirch it, and has furnished the, pigments to carry on the nefarious undertaking. Sans v. Joerris, 14 Wis. 666; Newman v. Foster, 8 Wend. 602; Odgers, Libel & Sland. p.124. But may exemplary or punitive damages be recovered fora libelous publication, without proof of ill will, hatred, or an rutent on the part of the libeler to injure his victim? Punitive damages are given as an example to the public, to deter others from committing a like offense, anc"j, ,as. a, punishment to the wrongdoer. They are never allowable where the defendant, after due investigation, in good faith, with reasonable cause to believe the charge to be true, has published it from a proper motive, in the honest belief that it is true. Are there, however, no circumstances under which the jury may award exemplary damages, in tb,e absence of proof of actual evil intent or bad motive ,on the part of the defendant? May the libeler shut his eyes, and blindly publish heinous charges against men and women of spotless character ,and unsullied reputation, and still escape liability for everything except the actual damages which they can prove, because he had no intention to injure them, no care about them, but simply sought to make money from the sale of the racy story? If he may not, where is the dividing line, and who shall determine in the court or the jury, whether or not exemplary damages each shall be allowed? ·It is not every degree of negligence, it is not a mere mistake or inadvertence occurring in the course of a reasonable investigation, that will lay the foundation for exemplary damages for the publication of a libel; and yet every man is bound to use his own property and pursue his own vocation in such a way that he may not unlawfully injure the property or violate the rights of his neighbors. Not only this, but when his property or his vocation borders upon or impinges upon the property or rightlil of his fellow men, he is bound to exercise ordinary care to ascertain the extent of that property and of those rights, and to abstain from un· necessarily inj uring them. . .
llJi Dl1l1l,l.nt Milil. Co. action;
Min. Olil., 166" an Jleld that the plaintiff might actual loos if the trespas."l was willful and inteptio,nah f!Jld tl1a11 the jury might, "lawfully .infer that, a tresplU3ser .knq'Wledge of the right and title of owner of the property upon entered, and that he intended to violate that right, and the Pf:operty ,to, his own use, from his reckleiils'disregard of the ow,er's right and title, or from his failure, to ordinary care to <iiscoverr and protect them." It is difficult to perceive why a jury mightnqt likew-ise infer an intent to violate the rights of a plaintiff, ip.a libe,l suit, f'rom a stolid indifference to, or reckless,disregard of, them. , , In Day v. Woodworth, 13 HOWl, 363,371, the supreme court declared .that exemplary damages might be allowed by the jury in "actions of trespass, where the injury.had been wanton or malicious, or gross and outrageous;" In Railroad Co. v. Quigley, 21 Row. 202, 214, an action of libel, that court held that:
"Whenever the injury complained of has been inflicted mallciously or wan" tonly, anti with circumstanceS of contumely qr· indignity, the, jury are not limIted to the ascertainment ofa simple compensation for the wrong committed against tne aggrieved person. But the malice spoken, of 'in this rule Is not merely the dOing of an unlawful or injurious act. The word implies that the act complained of was conceived In the spirit of mischief, or of criminal indifference to civil obligations."
In Railway Co. v. Arms, 91 U. S. 489, 493, an action of negligence, Mr. Justice Davis, in delivering the opinion of the court, said:
"Redress cOmmensurate to such Injuries should be afforded. In ascertaining Its extent, the jury may consider all the',lacts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty togo further, unless it was done, willfUlly, ,or was tIle result of that less indifference to the 9f others wbich is equivalellt to ,an Intentional violation of them. In that case, the jury areauthortzed, for the sake of public example, to give such additional damages as the circumstances require. ';!'he tort is aggravated by the evil motive,' and on this rests the rule of exemplary \
'In Bemiettv. Salisbury, 45 U. S: App. 636)6S9, 24 C. C. A. 329, 331,aild 78 Fell. 769, 771, the circuit court Of appeals of the Second cirCUit held that exemplary damages' might be recovered in an action of libel, aItliOugh the defendant had' ,no ill will ;intent to injure the plaintiff, if he was gUilty of "such wanton disregard of, or reckless indifference to"the rights of others as. wl1,s equivalent to the intentional violation of. such tights.'" ',' ' .,,' 'Through all these andinany'o1Jter, authoritiecs ,the thought runs a reckless disregard of the rights, and feelings of others may be equivalent to an' intentional violation of them, 'and that, where such exists, punitive dam,ages'mil:y',be allowed, in, the discretionofthe jury. A willshdw, hQwever, that the violation Mthe rights of Ottewho is slandered or fro.m, a righ.ts tHe, libeler, that di-sregard IS the eqUIvalent of an Intentional vwlatIOn of them., Every man is presumed to intend the natural and probable effects of his acts and omissions. The natural and probable effect of the reckless
TIM'ES PUB. CO. V. CARLISLE.
disregard by the publisher of a newspaper of the rights of his fellow men to their good names and fair reputations is the violation of those rights, and hence the reckless disregard of them becomes equivalent to an intentional violation of them. Moreover, every reason for the allowance of exemplary damages applies with as much cogency and force to a libel published with a reckless disregard of the rights of the libeled as to one published with an evil intent or a bad motive. Such damages are allowed as an example to the public, and as a punishment to the wrongdoer. ' The main purpose of their allowance is to protect the characters and reputations of those who have not been attacked, and to warn all men not to destroy or injure the names that are still good and the reputations that are yet fair. The interests of these citizens and of the public demand the protection of their reputations against assaults that would destroy them with a reckless disregard of the rights of their owners as forcibly as they do that they shall be protected against those inspired by hatred or ill will. The effect of libels published with recklessness is as deleterious as that of libels published with ill will. In truth, the demand for the protection against libelous publications made with stolid indifference to, and reckle£lS disregard of, the rights of those injured, is far more urgent than the demand for protection against those published with hatred, because the former are usually inspired by avarice, and are as much more numerous and as much more dangerous,to individuals and the public as avarice is more prevalent than spite. Turn it as you will, the reason of the rule and the great weight of authority upon the subject lead alike to this conclusion: Exemplary damages may be allowed by the jury, in actions of libel, when, upon a consideration of all the facts and circumstances of the case, they find that the .publication has been made with a reckless disregard of the rights and feelings of the person libeled, as well as where they find that it has been inspired by hatred or ill will towards, or an intent to injure, him. Bennett v. Salisbury, 45 U. S. App. 636, 639, 24 C. C. A. 329, 331, and 78 Fed. 769, 771; Ullrich v. Press Co. (Sup.) 50 N. Y. Supp. 788, 792; Samuels v. Association, 75 N. Y. 604; Bergmann v. Jones, 94 N. Y. 51, 62; Holmes v. Jones, 121 N. Y. 461, 467, 24 N. E. 701; Warner v. Publishing Co., 132 N. Y. 181,184,31 N. E. 393; Holmes v. Jones, 147 N. Y. 59, (U, 41 N. E. 409; Smith v. Mathews, 152 N. Y. 152, 158, 46 N. E. 164; Young v. Fox (Sup.) 49 N. Y. Supp. 634; Shanks v. Stumpf (Sup.) 51 N. Y. Supp.154; Callahan v. Ingram, 122 j)10. 355,371,372,26 S. W. 1020; Buckley v. Knapp, 48 Mo. 161; Clements v. Maloney, 55 Mo. 352, 359. H is ordinarily a question for the jury to determine, in view of the particular circumstances of each case, whether or not punitive damages should be allowed, and the amount of the allowanae . is exclusively within their province. Day v. Woodworth, 13 How. 370; Scott v. Donald, 165 U. S. 58, 89, 17 Sup. Ct. 265; Holmes v. Jones, 147:K. Y. 59, 67, 41 N. E. 409. The constitution of the state of Missouri, where these actions were tried (article 2, § 14), provides that:
94 FEDERAL REPOnTER.
. "tH &J,l su\ts and prosecutions for lioel the truth thereof may be given In evl-
dence,an,(l jury, under the dhrection ·ofthecourt,shall dete:rmlne the law and the fact." . " " .' " "
The questions which have now been discussed were presented in various forms in the trialof:,thecastisbefore uS,and have been properly saved for our consideration. It seemed conducive to a convenient and expeditious disposition' of the cases to consider them before stating the details of the exceptions which raise them. We turn to a consideration of these exceptions.. The main point of attack is the charge of the court. The plaintiffs in error did not plead or prove the truth;of the charges for the publication of which these suits were brought, but they produced evidence to the effect that Sheriff Reeder originated the charges, . and stated them to their reporters before their publicll!tion, and they, prayed in their answers, and in four requ.ests which they presented at the close of the trial, that they might account of' this pleading and proof. The court carefully read to the jury the three libels, stated clearly the contents' of the answers of· the' plaintiffs in error, and then addressed itself in their order Mthe qu.estions of justification, mitigation of damages,compensatory"damagelS, 'exe'rIlplary damages, and some special phases of 'the cases against the Times Compillly andtheWorld'Company., The triar:judge properly charged the jury that the Jact thait the libelous matters published were told to the publishers by another was no justifidttionfo:r their publication, and that proposition of law is not challenged in this court, although,as we have said; the judge 'Was asked to :hold"the counter proposition at the trial", 'and e:s:ooptions .were tkken because he refused. The complaintnow'is'that there was error i.\1 the charge of the court on the questionofdamagesjand we'ha!Ve'called attention to thefacttha,t ,this' question of justificafion was presented and urged upon the court below because many of the sta'tements of the judge that are now challenged as tending to !induce error in the assessment of damages were not addressed to' ;that subject at all, but to the question of justification alone. For example, he said: . .
"The repetition of slander uttered by publication in the newspaper makes the publisher of that $candalor libel as much responsible in law for the act of publication as If the newspaper were the originator of the slander; the Information they received, as you will be advised by the court later on" going ,to the question ., . only of damages.... ·
This was a correct statement of the 'law. The 'court did not say that the publisher would be liable for as much damages as the originator, but that he would be as much liable, and he was speaking, not of the amount of damages, but upon the question of a justification of the publication. It is assigned as error that the court instructed the jury that, if the defendant in error recovered, he would, be entitled to com-' pensatory damages, and then said that by "compensatory damages is meant simply such sum of money, such round sum in measurement, as in the judgment of the jury will compensate him for injury done to his feelings and his chal'aeter and reputation."
He then told them that the action was not founded on special damages resulting from loss of business .or trade, but on general damages for defamation of character, i l1 justice, and indignity: This assignment is leveled at the adjective "round," and it is contended that its meaning is large, and that its use deprived the jury of the privilege of returning nominal damages. To our mind it has no such significance, and we are unable to persuade ourselves that it had any such meaning to the jury. In our opinion, it was used, and rightly used, to describe a lump sum, in contradistinction from one that is the result of calculation or of exact computation. The statutes of the state of Missoliri require that, in all actions where punitive damages are recoverable, the jury shall separately state the amount thereof in their verdict (Laws Mo. 1895, p. 168), and it is insisted that the copri erred because it told the jury to assess such damages in these cases as they deemed just and ri!tht, and did not require them to separate the exemplary damages from the actual damages. We have searched this record in vain for any request on the part of the plaintiffs in error for such a separate assessment, nor do we find that this statute or this objection was in any way called to the attention of the court when the charge was delivered and the exception taken. The function of this court is to review the supposed errors of the court below. There is no er1'01' here for us to review, because this question was not presented to, or decided by, that court. Moreover, if it had been, there was no error in the instruction given or the practice adopted by the trial court. The federal courts are not required to follow subordinate provisions of state statutes which would incumber the adminIstration of the law or tend to defeat the ends ·of justice in their tribunals. O'Connell v. Reid, 12 U. S. App. 369, 378, 5 C. C. A. 586, 592, and 56 Fed. 531, 537. The next subject for our consideration is the charge of the COUI't upon exemplary damages. While treating the subjects of justification and compensatory damages, the court defined "malice," in its legal sense, to be "a wrongful act, done intentionally, without legal justification or excuse," and used it in that sense throughout its instructions. It told the jury that no justification of the publication of the libels had been pleaded or proved, that malice was implied from their publication, and that the defendant in error was entitled to recover compensatory damages. This was a correct statement of the law, under all the authorities. ·White v. Nichols, 3 How. 266. When the court came to the subject of exemplary damages, it said to the jury:
"As I have already stated to you, gentlemen of the jury, the publication of libelous matter in a newspaper, that is false, and without justification or legal excuse, itself expresses malice, and entitles the parties to recover thereon. These publications can be made under circumstances which entitle the party to something more than what is called 'compensatory damages.' "
It then proceeded to give the porti0l! of the charge on compensatory damages which has been considered, and continued in this way:
"It is also permissible for the jury to award, in libel cases. what Is known as 'punitive' or 'exemplary' damages; that is, damages by way of punishment to
the party tor doing recklessly and wrongftrtly an injury to another, or exem· plo,ry damage,such as would. be an example to the community to prevent such wJ'l?llgs alld Injustice to society, to punlsI/. the party. Now, gentlemen of the Nry; you are to determine for yourselves,from all the evidence in this case, as to'Wbether or not you give the party pul1l:t1ve damages. Look at all the circumstances and facts ill the case, to see whether this publlcatlon was made under ,Qircumstances such as, to entitle the plaintiff to recover Ilunitive damages."
This portion of the charge is vigorously assailed..It is contended that it is erroneous (1) pecause the, charge on malice was not accompanied "with a further chargethat,lD the absence of express malice, or its legal equivllJeIlt, there could be no recovery of exemplary damages"; (2) ·because "the proper legal'definition as to what is sufficient to authorize exemplary damages was not given by the court, and the evidence dldnot warrant the charge on the subject"; and (3) because the' court refused to give to the jury instructions 5, 7, and 8, which were requested by the plaintiffs in error, and read in this way:
"(5) If you find, from all . the. circumstances, that there was no mallce on the part of anyone of the defendants towards the plaintiff inducing or actuating the publication complained of against that defendant, then you can give no dam.ages against such defendant on account of such malice." ' "(7) If a newspaper is advised. by officers of the law, or other persons, that a given paJ.:ty has been guilty of an offense, and publishes that fact in good faith, and without any actual malice against such person, mentioning the source of its information In such publication, and having reasonable. ground to belleve that the facts stated are true,' then such defendant cannot be charged with pu' nitive damages by reason of such .publlcation. "(8) The jury are Instructed that It Is. competent for a newspaper publisher sought to be recovered from It to show, ,in mitigation of any punitive for thepubllcation of a libel, that it acted upon Information received by It, and that It had reasonable cause to believe, and did believe, that the particular pUblication complained of was true at the time it was made, although It may have developed, by subsequent occurrences, that as a matter of fact such statements were not true."
The relation of malice to the action of libel, and to the recovery of exemplary damages, has been purposely discusse,d in the earlier part of this opinion, and it is only necessary here to compare the charge .of the court with the conclusions stated. In brief, they were that malice, in the legal sense in which the court below used it, is implied from the publication of an unprivileged libel; that malice, in the ordinary sense,-'-that is to say, ill will, hatred, or an intent to injure the person libeled,-is not essential to the recovery of compensatory damages in an action for libel; and that exemplary damages may be recovered either when the publicathe victim, or when tion is inspired by ill will or an intent to it is made with a reckless disregard of his rights. A. comparison of the charge of the court with these conclusions shows that it is in strict accord with them. The court spoke of malice in its legal sense. Taken in that sense, it was implied from the publication of the libels, and it remained implied throughout the entire trial, for the purposes of compensatory, as well as of exemplary, damages. In many cases this implied malice would be insufficient to warrant exemplary damages. But this implied malice, together with a conscious indifference to, ora wanton or reckless disregard of, the
rights of the defendant in error, was sufficient,' even in the absence of ill will or an intent to injure, as we have already seen, to warrant an award of these damages. This was the effect of the court's charge. There was no direct evidence of ill will, or hatred, or intent to injure the defendant in error, on the part of the publishers of these libels; and their agents testified, truthfully, no doubt, that they had none. The real question was, not whether or not these agents were inspired by spite or ill will, but whether or not they had made the publications with a wanton or reckless disregard of the rights of Carlisle. The court very properly confined its charge on this subject of punitive damages to this question. It told the jury that they might allow exemplary damages for doing recklessly and wrongfully the injury which had been inflicted upon the defendant in error, and that they must look at all the circumstances and facts in the case, and decide for themselves whether the publications were made under such circumstances as would justify such an allowance. "Hecklessly" signifies with a wanton disregard of all consequences, and hence of the violation of all rights, and its use presented to the jury the proper rule for their guidance upon the question under consideration. Cent. Dict. "Reckless"; Plummer v. Kansas City, 48 M.o. App. 484; Railway Co. v. Adams, 26 Ind. 78; Cobb v. Bennett, 75 Pa. St. 330. The result is that the objections that the court did not instruct the jury that there could be no recovery of punitive rlamages, in the absence of express malice or its legal equivalent, and that it did not give the proper definition of what was necessary to warrant the recovery of such damages, must fall, because it declared that the publishing of libels recklessly and wr.ongfully was the legal equivalent of express malice, and that such a publication would warrant the recovery of exemplary damages. ' The objection that there was no evidence to warrant the consideration of exemplary damages by the jury must share the same fate. A merchant of unspotted character and unblemished reputation, residing and engaged in mercantile business in the city where these publications were made, was arrested on the affidavit of a stranger, who lived hundreds .of miles away, for knowingly having in his possession eight stolen cattle. This affidavit was accompanied with the usual information, verified by the district attorney of a county in Utah, and by the necessary affidavit of the assistant district attorney of the same county for a requisition, with the usual requisition, and with an order for his arrest. When he was arrested, he and his attorney protested to all the agents of the plaintiffs in error who inquired of him that he was innocent of this charge. An account of his arrest, and of the charge against him, was published, and of this he made no complaint. The sheriff of Mesa county,' who arrested him, and who, so far as this record discloses, was a stranger t.o the agents and employes of the plain· tiffs in error, said in their hearing that the defendant in error had been operating with, and associated with, and had been the head of, a gang .of cattle thieves. The 'publication of this charge is the foundation of these suits. The defendant in error was in Kansas
CitY. rfomanyof the residents and citizens of that town he was not unknown.: . His chavacterand reputation for honesty and in· tegrity were easily ascertainable in the city where these publications were made. We halCe searched this record in vain for any evidence that, before this charge was published, any of the agents or employes of theplatntiffs in error made any effort, by inquiry of any of theacquaiIrlances olthe defendant in: error, except of the sheriff of MesacoulLtyand thepoliee of Kansas City, who, they knew, were repeating these' charges on his' statement alone, to ascertain whether or not it was true, or that they ever even asked the defendant in error or his attorney whether or not he was the head of It gang of cattle thieves, or was associated or operating with them. The reputation of this man rested under the legal presumption that every man is presumed to be innocent until he is proved to be guilty, and under the still stranger, presumption on which aU men constantly act, in social and business transactions, that a roan of 40 years orage, who has established a good reputation, would. not be guilty -of such a crime. The -plaintiffs in error disregarded these presumptions; and published the story of the sheriff. .A sworn charge: of crime carries with it no presumption of truth; Ip.uch less does:the gossip of au: officer. The trial judge thought that the pul1iication of this'story, under these circumstances, presented substantial 'evidence of. the reckless disregard of the rights and feelings of the .defendant in error, which he was not authorized;to withdraw from the jury upon the question of the allowanceofexemplal'y damages, and we are all of the same opinion. ')1 Another. contentioJ:!.,ofconnselfor plaintiffs in error, under this exception, is that punitive damages cannot be recovered of their clients, because they fire corporations. But the charges which they published were gathered and circulated in the dourse of their ordinary business by their agents who ,were acting within the scope of the authority and duty intrusted to them,and for "acts done by the agents ofa corporation in the course of its bl!siness and of their employment a corporation' is responsible in the same manner and to the same extent as an individual is responsible under similar circumstances." -Railway Co.v.Prentice, 147 U. S.101, 109, 13 Sup. Gt. 261; Railroad Co. v. Quigley, 21 How. 202, 210; Bank v. Graham, 100 Uo :S: 699, 702; Salt Lake City v. Hollister, 118 U. 8. ::;66, 261, 6 Sup. Ct. 1055; :Railway Co. v. Harris, 122 U. S. 597, 608, 7 Sup. Gt.1286. The conclusions already announced practically dispose of the refusal to give the three instructions requested. The fifth was a mere truism; from the: failure to give whieh it is evident that no prejudice conldpossibly:have arisen. It was a request to say to the jurY,ineffect, if YOUt find no malice, you can give no damages on account :of malice, or, in other words, you will give no effect to a nonexistent cause. No prejudice can arise from the refusal to give such an instruction. It m;tY be further said that in these eases malice, in the legal sense, was implied from the publicati.ons, and the jury were not at liberty to find that it did not exist, while
malice, in the sense of ill will, was not essential to a recovery, so that the only effect of the instruction, if given, would have been to mislead or to puzzle the jury. The seventh instruction was properly refused, because it did not present the crueial question in the case,-whether ,or not the publications were made with a reckless disregard of the rights of the defendant in error,-while the charge of the court tersely and fairly presented it, because it was framed on the erroneous theory that there could be no recovery of exemplary damages unless the publication of the libel was inspired by actual malice or ill will, and because it assumed that the jury were at liberty to find that some of the plaintiffs in error had published the libels in good faith and with reasonable ground to believe that all the libelous matter whieh they published was true, when the facts proved were insufficient to warrant such findings. There was some of the libelous matter published by the World Company and some of that published by the Journal Company that there is no evidenee that either of them had reasonable ground to believe; and, in the case of the Times Company, notice of the falsity of the charges was repeatedly given to its agents by Carlisle and his friends before they were publisbed, and its city editor testified that all they knew about them from any other source was that the sheriff said he believed them. A publication under such eould not have been made "in good faith." Lee v. Bowman, 55 Mo. 400; Coover v. Johnson, 8G :Mo. 533. The eighth request was properly refusedbeeause it assumed that the jury were at liberty to find that some of the plaintiffs in error believed all of the libelous matter which they published, while there is no evidence in the reco,rd that any of thein, or any of their agents, ever had such a belief. On the evening of the day of the arrest, a friend of the defendant in error and his partner went to the office of the Times Publishing Company, met the city editor, told him that the charges against Carlisle contained in the article whieh had been published on that day in the Kansas City Star, and which was then before him, were false, and that Carlisle was innocent, and, llccording to the testimony of the city editor, demanded that he should print nothing about it. The article subsequently published in the Times the next morning contained substantially the same charges made in the article in the Star. 'When the interview with Mr. G"arlisle's friend and partner took plaee, the Times article had been written by the police reporter, and either at or after this interview the city editor inserted a -statement to the effect that the defendant in error elaimed that he was entirely innocent of the charge, and then published it. Before preparing the article the poliee reporter had talked with Carlisle, and the latter had told him that the charge against him of receiving the stolen eattle was trumped up, and his attorney, ",Taison, had informed him that Carlisle could peove his innoeence of it. In answer to the question why he published the statements in the Times article of charges other than that for whieh the arrest was made, the city editor of the Times testified:
"Now, this man Reeder. The only thing, according to his ,statement,-tbe only charge they could get against this man,-was he had received eight head of cattle. But this man Reeder, who came from Colorado, believed that Mr; Carlisle was the head of an organized gang of cattle thieves. I say he believed it, and that was all we knew about it."
, When the friend of Carlisle protested against the publication of the'matter in the Star, the night before the Times Company published its article, this city editor replied that he intended to publish it anyway, and his assistant, Or some other person in the office, added ali injunction to read the Times and keep posted. It is assigned as error that the court below, in presenting this evidence to the jury, stated it incorrectly, and then instructed them, in effect, that when a newspaper is warned and notified that a charge is false, wrong, and trumped up, and then proceeds to publish it, it thereby affirms it, sponsor, for it, and answerable to the party injured, and that it was for them to say, under an the circum· stances of the case, Whether, if the Times Company published the libel, even with the addition to the effect that Carlisle claimed to be entirely innocent, it did or did not exhibit a wanton disregard of the rights of others. The testimony of the witnesses in the case of the Times Company has been carefully compared with this part of the charge of. the court. There are verbal inaccuracies in the statement which the court made of this evidence. In some instances testimony attributed to one witness was given by another, but the substance and effect of the testimony relative to the action of the Times Company was clearly and fairly stated by the court, and the law was correctly declared. There was no just ground for exception to this part of the instructions to the jury. It is assigned as err(fr that the court below refused to permit the introduction of proof of the article in the Star, and its pUblication, in mitigationt, of damages, and that, while it admitted proof of the fact that this ,article was before the city editor of the Times and the friend and partner of Carlisle at the interview on the evening of February 20th,- it restricted its effect to that fact. But the article in the Star was not evidence of the truth of the statements it contained, and it was not admissible in mitigation of damages in the action against the Times Company, because it was not pleaded in its answer in that case. For the same reason the offer to prove, by the testimony of the reporter of the Star, that he communicated what Reeder hadtbldhim to the reporters of the plaintiffs in error before they pUblished ,their articles, was properly .rejected. Neither of the answers pleaded ()r suggested the article in the Star or the story of its reporter as one' of the sQurces which induced the plaintiffs in error to make such publications. In jurisdictions which have adopted the Code, matter in mitigation of damages must be pleaded before it can be proved. Rev. St. Mo. 1889, § 2081; Northrup v. Insurance Co., 47 Mo; 435, 444; Burt v. Newspaper 00., 154 238, 244, 28 N. E. 1; Hewittv. Pioneer-Press Co., 23 Minn. 178. It is also assigned as error that the reporter of the Star was not permitted to testify in these actions to what Sheriff Reeder told him at the tiroe of the arrest of Carlisle. As we have already seen, his testimony upon this subject was not competent in mitigation of
damages, but it is suggested that it was admissible for the purpose of contradicting and impeaching the testimony of Reeder. A perusal of Reeder's testimony, however, discloses the fact that no foundation was laid therein for his impeachment. No questions were asked him which would allow of his impeachment by the testimony of this reporter. In connection with the rejection of this testimony, much complaint is made of the action of the court in the submission of the evidence upon the question of mitigation of damages to the jury. The record and the charge have been carefully examined upon this tSUbject, with the result that it seems to us that this complaint is not warranted. The court expressly charged tbe jury that, while the answers did not plead justification, they set out the facts and circumstances out of which the publication of these articles grew, for their consideration on the question of the mitigation of damages and that they should look at all the circullltStances and facts in the case to see whether the publications were made under such circumstances as to entitle the defendant in error to recover punitive damages. All the requisition papers had been received in evidence. The reporters of the plaintiffs in error had been permitted to testify fully to their examination of these papers, and to all that Sheriff Reeder had told them. With thitS evidence before them, tbese instructions gave to the jury all that the plaintiffs in error had pleaded, and all that they had proved, for their consideration upon the question of mitigation of damages, and they were too plain for mistake, misconstruction, or misunderstanding. When the charge of receiving tbe eight head of stolen cattle was dismissed by the court in Colorado, the World Company published an article, purporting to be signed by Sheriff Reeder, to tbe effect that the charge had been dismissed by the entry of a nolle prosequi, and that the defendant in error was tboroughly vindicated in a lengthy opinion on the merits of the case submitted by the district attorney. The Journal Company and the Times Company made no publication of these facts, and did not publish the fact that the defendant in error brought these actions. In its charge the court called the attention of the jury to the publication of this article by the World Company, told tbem that if, when a publisher ascertains the fact that he has done an injustice, he makes the amende honorable, and says he has done a wrong, he has then acted the manly part; that public opinion and juries ought to appreciate such an act; and that the jury ought to consider this later publication by the World Company in mitigation of damages. It is assigned as error on the part of the Journal Company and of the Times Company that when the court gave this charge, and while speaking of a publisher, it added:
"But if, having slandered you and libeled you, he doggedly remains reticent from that day forth, leaving you to run down and to catch this swift-footed slander that goes through the world, that is another question for the jury."
But this statement of the court was certainly true in fact, and we are unable to discover why it is not true in law. A different question is surely presented, when a jury is to consider fhe to,
beal:lowed 'for a publication of a false charge of crime which has been promptly retracted, from that which is presented when it is to assess the damages for one that has not been withdrawn. One of the crucial questions in this case was whether the publications were made with wanton indifference to, and reckless disregard of, the rights and feelings of the defendant in error. Silence after he was vindicated, and silence when he sued for the publication of the libels, presents this question in a far different light from that in which a prompt publication of the vindication places it. Publishing Co. v. Hallam, 16U. So App.613, 645, 8 C. C. A. 201,206, and 59 Fed. 530, 535. Another portion of the charge to which objection is made reads in this way: '
"One of the, counsel in this case argues that Mr. Carlisle never went to the papers, and asked' them to make these corrections. Gentlemen of the jury, it is not the duty":"'it Is not a citizen, when a newspaper libels him, if it does libelhiin,to go and hunt the libeler up, and entreat and implore him to rectify it. It is the duty of the pt;lblisher to look out for the facts, and to make corrections if the facts warrant It. ' It is not the duty of a man to go to them."
There is nothing questionable in this 'excerpt from the charge, except the last sentence but one, and that must be read and interpreted in tp.e light of the subject under discussion when it was delivered, If the' question of which the ('(lUrt Was treatirlg had been whether or not a person libeled could recover dahlagesfor the failure of the libeler to discover the truth and publish it after he had circulated the libel, an,d the court had charged that he might, such an error. But this was not instruction would ulldoubtedly have the subject' under consideration h'ere; and this was the meaning nor the effect of the' of the court.. The question under waswhefher or not the fact' that' the'defendant in errordHl uot' go to, thel>ublisl;lers, and tell them the :facts, and deDiand' a reti11ction, after tlie'libels were'circulated,was :J.,ny justificatron or original publication. The court properly JHat .It was uM,and the remark that "it i'l'!' the duty of the publisher to look after the facts, and to makecorrectio'ns, if' the facts 'Itis uotthe duty ofa manto go to: theni;"-was used arguendo, only to 8nppo,rt and enforce tbis rule, and n:ot to announce e:ntirely different proposition of law, which was not 'in the mind ()f 'eithereburt or jury. 'The cDilllectio:nin which these ,words were it. impossible fo.r ,the' jury to misunderstand .' them, and inthll-t connection their use 'Was'not erroneous. Many of error are niade; and much cowpla:int IS Ill(lulged in, the court below limited the eff'ect of the reqtlisition 'papers when 'they were received in evidence. An eXllminatiol} of these exceptions. discloses the fact that the real objection to fliis the court did not permit the!!!" use for the purpose of pr.oyi'ngtb;e truth'of the facts which theY recited. Theproposition that the affidavit 'of the complaining witness; or the affidavits of the officers based upon 'it, cOll$tituteany evidence of the truth of the charges made'therein, in these actions of libel, is unworthy of consideration. ,His said, howevelrj that great injustice was done
TIMES PUB. CO. V. CARUSLE.
because the court to mention in its charge the affidayit of assistant district attorney upon which the application for a reqUlsItion was granted. But the foundation of the requisition proceedings was the affidavit of the complaining witneEs, Chipman. N.o complaint is made that this was not mentioned to the Jury. ThIS affidavit was accompanied with the affidavit of the or the information, and with the affidavit of the aSsIstant dIstrIct attorney, or the application for the requisition. But it is common knowledge that the affidavits of these officers are generally based upon the complaint of the witness who makes the charge. They do not purport to rest upon personal knowledge, but upon the information presented by prosecuting witness; so that, when his affidavit is these formal affidavits of the officers are not of surpassing importance. Moreover, it was entirely in the discretion of the trial court to mention sQch affidavits, or to fail to mention them, in its charge, provided it fairly reviewed the evidence presented by the contesting parties. Our conclusion is that the failure to mention. the .affidavit of this aStSistant district attorney. was the exercise of the diseIletion of the court in reviewing the testimony, with which we cannot interfere, and that the case presents no evidence of an abuse of that discretion, or of any injustice resulting from the man· ner of its exerCise. The entire charge of the court is challenged as partial and inflam· mator.y. Careful and repeated readings of it, and of every objection made to it, have led us all to the conclusion that it was, on the whole, a just and fair presentation of the law and the facts of these cases. The truth undoubtedly is that the plaintiffs in error published the libels without special ill will or spite agaipst Carlisle, on the theory that they were warranted in doing so beeause the sheriff of Mesa county made the eharge they contained in the hearing of their reo porters. This was a fatal mistake. Its commission left them without any defense against judgments for some amounts in these actions. The only question the cases really presented was what the amounts of the judgments should be. 'I'his was not all. The publication of the charge that Carlisle had been operating with, or associated with, or had been the head of, a gang of thieves, on the statement of this sheriff, without investigation or inquiry concerning its truth of any one but their informant and those who were repeating it on his in· formation alone, in the face of the presumption of innocence, which the law throws around the upright man who has established a charaeter for honesty and integrity, indicates so grave an indifference to and disregard of a right of the defendant in error deemed precioUB by every honorable man,-the right to the preservation of his good name unsullied,-that the court could not lawfully refrain from submitting to the jury the question of exemplary damages. We fear that eounsel for the plaintiffs in error, in their critidslllS of the trial court, have forgotten some of these facts. They have been instant in 8eason and out of season in the defense of these eases. With rare skill and ability they have presented to the eourt below, and to this court, every consideration-every suggestion-favorable to their- clients. But they were defending eases which the law forbade them
to completely win. It is hard to conduct a contest that must be with equanimity adverse rulings that are lost. It is trying t9 fatal to a defense; expected and known to be right. We fear that the heat of. the strife, the zeal of the advocate, and the unavoidable annoyance of Inevitable d,efeat, have produced some obliquity of vision on the part of the counsel for the plaintiffs in error when they look at the charge of the court. Sqme of their criticisms of it seem to uEdo attribute strained and unnatural meanings to plain and correct declarations of and to apply other declarato subjects to which they had no In some of their criticism we fear they forgot for the moment that it was the duty of the court to declare the law applicable to the facts of these cases, to announce that the publications were not justified, and to submit the question of punitive damages to the jury, whatever the effect of this action might be upon the parties to the suit, while their duty was discharged when they considered the law and the facts solely with reference to their effect upon their clients. The facts in these cases were such that an impartial statement of them, and a clear and concise enunciation of the law which applied to them, could not be made welcome to counsel for the plaintiffs in error or to their clients. A hesitating, confused, and obscure presentation Qf the law and the facts might have been more favorable to them, but no just exception can be taken because correct declarations of law are plainly and forcibly given, or because apt and impartial references to the salient facts of a case are made. There were, as we have said, some inaccuracies in 'some of the court's statements of the facts. In a few instances testimony given or a statement made by one witness or person 'WM attributed to another. But the court did not undertake to recite or refer to all the evidence, the mistakes in its references to it were insubstantial and ineffective, and the whole question of the existence and effect of the evidence was left to the jury, in whose province it fell. The more cal'efully we have studied the record, the rulings upon the evidence, and. the charge of the court in this case, the more firm our conviction has grown that the trial was, on the whole, fairly conducted; that the references to the evidence in the charge were just and impartial; that the instructions to the jury contained a terse, and that there clear, and correct statement of the law of the was no snbstantial errbr in the proceedings. This conviction is confirmed al;l we review the entire case, and the arguments and briefs of counsel, by the fact that the counsel for the plaintiffs in error assign more than 75 errors in each of these cases, and specify in their briefs 74 upon which they rely. None of them have escaped our consideration. BU,t none of them which have not already been considered demand notice or discussion. The 48th, 49th, 50th, 51st, and 52d assignments are that the court did not instruct the jury to return a ver(].ict in favor of each of the plaintiffs in error; that it allowed the defendant in error more than three peremptory challenges (Insurance Co. v. Hillmon, 1.45 U. S. 2$5, 12 Sup. Ct. 909); that it refused to permit the plaintiffs in error to prove that Carlisle had not sued,or made any claim ag:ainst, Chipman 0'1' his company for char-
FELTON V. BULLARD.
ging him with receiving the eight stolen cattle; and that it refused to permit them to show that he had never made any claim against the Sheriff Reeder for the slander he had uttered. When counsel of the learning and ability of those who presented this case gravely an· nounce to an appellate court that they rely upon 74 alleged errors for a reversal of judgments against their clients, and some of those specified turn out to be as frivolous as those we have just cited, it is at least difficult to resist a suspicion that they themselves were DOt certain there was any substantial error in the case. The judg· ments of the court below mllilt be affirmed, and it is so ordered.
(Circuit Court of Appeals, Sixth Circuit.
.. MASTER .AND SERVANT CARS-OHIO STATUTE.
May 15, 1899.)
INJURY OF RAILROAD EMPLOYE FROM DEFECTIVE
Section 2 of the Ohio act: of April 2, 1890 (87 Ohio Laws, 149), which makes it unlawful for any railroad corporation to knowIngly or negli· gently use or operate any car that is defective, or upon which any attachment is defective, makes no distinction between the cars owned by the corporation and foreign cars which it may operate, and the duty of proper inspection applies equally to both; and under the further provisions that, If any employ6 shall receive an injury by reason of any defectiveattachment, the company shall be deemed to have had knowledge of the defect, and proof of the defect and injury shall be prima facie evidence of its negligence, as construed by the supreme court of the state, to overcome the presumption of knowledge on the part of the company, raised by the statute on such proof, it is not sufficient to prove that the company furnished It sufficient and competent inspector, but actual and proper inspection, or its equivalent, must be shown. As a matter of general law, independently of statute, a railroad com· pany owes to its servants engaged in handling or operating foreign cars on its road the legal duty of not exposing them to dangers arising fl'om defects which might be discovered by reasonable inspection before they are admitted into its trains, and for the negligence of an inspector in that regard the master is responsible. A mere visual ilJspection of the grab irons constituting the ladders on cars, which brakemen are required to use more or less whUe the cars are in motion, cannot be held, as a matter of iaw, to be a sufficient in· spection; and whether an inspection made was in fact a reasonable and sufficient one is a proper question for the jury. In an action against a railroad company to recover for the death of a brakeman, caused by the breaking from the car of a handhold forming part of the ladder upon which he was descending from a moving car, the testimony of an inspector that he inspected the car on the day before the accident by climbing up the ladder at one end and down that at the other Is insufficient to warrant a peremptory instruction for the defendant. where the evidence disclosed that the iron was held to the car at one end only by a piece of a rusted screw half an inch long and imbedded in rotten wood.
SAME-DUTY OF RAILROAD COMPANY TO INSPECT FOREIGN CARS.
SAME-SUFFICIES::lY OF INSPECTION."
SAME-ACTION POR DEATH OF BRAKEMAlS'-TmAL.
In Error to the Circuit Court of the United States for the Northern District of Ohio.