HORNING JOURNAL ASS'N V. ttUTHERFORD.
013
MORNING' JOURNAL ASS'N ".RUTHERFORD.
(Circuit Court of Appeals, Second. Circuit. JUly 20, 1892., No. 53.
1.
LIBl!L-ExEMPLARY DAMAGBS-NEWSPAPER ARTICLE.
A libelous article published in a newspaper stated, substantially, that plalntUf had eloped with the wife of a friend; that the intimacy existing between them had excited comment where the several,parties resided, and, when they were found to be missing, "tongue's wagged freely; that a dispatch had been received by the busband stating that his wife and plaintiff had been seen together in a certain city. The article was clipped from another paper, and pUblished without inquiry as to its authenticity. Held, that the court properly instructed the jury that, if they be. lieved,the article was wantonly published without inquiry or justifiable motive. or under circumstances of gross negligence, it was their right to award, besides actual damages, such punitive or exemplary damages as the facts warranted j and it was not error to refuse a charge that" where I'-l!ere is no actual or express malice, and no claim that plaintiff had sulfered any special darilllges, the jury may award the plaintiff nominal damages." 47 Fed. Rep. 487, affirmed.
I. 8.
ApPEAL-REVIEW-ExCESSIVB VBRDICT-FEDERAL COURTS.
An excessive verdict in an action for libel cannot be corrected by the federal appellate courts on writ of error, where the jury has been properly instruoted as to the rule of damages. A decision upon a motion for a new trial is not reviewable by a federal appellate court.
ApP.Ii;ALABLB ORDERS-D.Ii;NIAL Oll' NEW TRIAL.
Error to the Circuit Court of the United States for the Southern Diatrict of New York. Action by Edward C. Rutherford against the Morning Journal Association to recover damages for an alleged libel. The jury rendered a verdict for plaintiff in the sum of $4,000. A motion for a new trial was denied. 47 Fed. Rep. 487. Defendant appeals. Affirmed. Statement by LACOMBE, Circuit Judge: The plaintiff. a resident of Toronto, Canada, came to New York city on the 8th of June 1890, accompanied by the wife of a friend of his, who resided in Toronto. When the train arrived, they were met at the station by the husband. All the parties were people of high respectability, and were, apparently, intimate friends who had arranged for a visit to New York together. While they wel'e staying at the Hotel Brunswick, and on the 14th of June, there appeared in the newspaper published by plaintiff in error a communication, under the heading" Eloped to New York; Wife ofa Wealthy Toronto Merchant' Skips Out,' "-which purported to have been sent to it by its special correspondent at Toronto, the day before. The communication stated, in substance, that the defendant in error had eloped with the lady; that for some time the intimacy between the two had excited comment in Toronto, and, when they were found to be missing," tongues wagged freely;" that a dispatch from New York city had been received by the husband, stating that his wife and defendant in error had been seen there, and that he at once started for New York. No special correspondent in Toronto had sent any such communication to the plaintiff in error. One Oronin, a reporter for a Toronto newspaper, with no more information on the subject than "talk which v.5b.no.8-33
was going on about it in the office" of his paper, had, without illvesti- . gating into the Ute. newspaper, which published it. The article, as published in the ChICagO newspaper, in error·. " ust prior to was forwarded tij,y. a.uews,agepcy ,tq its receipt, a similar article was published in the New York Evening Sun. The telegraph editor of the plaintiff in error cut out the article from !he Sun for ),n. ,0,wJ:l. it lI;lqUlry as to Its 2,:1891, befMeJl'Idge WALLACE: Rnd a jury; and a vlirdiot i:eildered Jor;$4,OOO.', ,A.IIl;otion for It new td:""l was, I;Uade and was:!lwt, a. ibill?f and and,wril.tof error allowed. , ' , ' , " L,A90!l'1BE ;:"':".", ;-
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LACOMBE,Circuit Judge. The plaintiff in error, upon ihe argument .se,rtain in' cPll:rge,;. on the trial, he made no objection and which are covered by no exception. These portions of the charge are .not, therefore, before this court for review;.mheyiwduld not: oo"even !general exception to the whole charge, (Rule 10 U. S. Cir. Ct. App. 2d Ct.,) nor was any spch general eocooption:takTen.: .,Rit ele'mentarytbat a ,party who thin}{:s himself. aggrieYed tHe,jilry can be beard in criticism only ofsQ ;much Oidtas he, ohjeated.to' at :time.The·recol'd ,discloses tions totbe.Ch8.rge,.as,,foUows: First. To a refusal to charge, as requested. that, "there being no express ot :actuafinalice on:' ddendaot·'s pal't.in pulJlisl1ing the libel, the jury should p(jtawaIlcl dalpllgf8,,',',, .$econd. To a refusal to :tAAt; "where,tbete,is orexpres,S malice, and no.. claim j may award the damages: ',. J'l'hird.TQ a charge that the jury might give a V'etdict pqt/itive or exemp1ai'y . , . l : "] 1.; .i) .";,j t':
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not be justified in finding, .personal ill,wiU totbeptJbliClj,tion of the and that there wasany,ac· .t ualor, 9P ,lilefendant'I'!Pltrt in puljJ)ishing the articlej" mllljpl'lJroql the .false and defama.c!l\ll!e;.that, un\ler the. circumstances, plaintiff ·was' swr.p.:damages ,as he had in his feelings #1):)4 his .of. the, PllblicatiorL()f the libeloull articlej thttt bew·M,f\ntitled tQiPlljnq.en:m,inl;l,9 fpr the injl)Iyto :hill if the jury weresatisfied,tbat the article ,WllisW$ntqnlypu,blished withoutinquiry, without justifiable. motive, or .GAg.$' ofgrof:ls, n!lgligl:lWlej' withiQ tP¢): province to
. The jUJiy W'Elre ,chllrge<ftbat'.' they
1'-'
MORNIN(;i .JOURNAL ASS'N' " r ." " . , ,
515
award, damffies, .sum as they' think, upon the the for pumtlve or ,damages. , " $0 far as of the se,ednd e;ception, 8ttpra, is concerned, the ch!\rge as favorable as the plaintl'ff in error was erititled to., The jury distinctly told error was entitled: to indernuificaHpn for injury to his aria reputation, and only i.f they wery'satisfied that the publication was wanton and grossly were they to givehim anything ,more. Neither the character' of the libel nor the circumstances of its 'piiblication were such as to require the court tolntimate to the jury that nominal damages were'a suffi< indemnity for the assault upon his reputation and the injury tohis feeli'n'gs, and such an intimation.is manifestly what the request to charge waS devised to spctire. ' :, The other two exceptions, supra, are unsound. The charge correctly instructed the jury as to the law of the case. In actions for libel, juries are authorized to give such exemplary damages.as the circumstances quire, when the evidence shows that the publication was "the result of that reckless indifference to the rights of others which is equivalent,to the intentional violation of them," (Railroad Co. v; Arms, 91 U. S. 489;) or, as it is elsewhere expressed; "when the act complained of wasMnin the spirit of .mischief or of criminal indifference to civil obligatiops," (Railroad CO. V., Quigley, 21 How. 213.)' There wllS.sufficient in the case to the jury in finding that the action of the plaintiff in error exhibited such reckless.indifference to the rights of For the publication of its defamatory article-a bit orapicy gossip dealing with the donlesticinfelicities of private persons':'-there waano excusable motive, and to publish it without making any effort to verify its truth "IYas a piece of reprehensible negligence which maybe fairly characterized as wanton. .The. story which the plaintiff in error spread broadcast throughout the complUnity was one calculated most cruelly to outrage the feelings of any honest woman. The mental anguish which ,,,auld be expei'iencedby a loyal wife who saw herself paraded in the public press as an adulteress might well be assumed to be sufficiently acute to induce any decent pers6nto verify before repeating such a story. But this plaintiff in error made no effort so to do. It published the story as if it were of its own special procurement,-the result of investigations made in its own behalf; in reality, reprinting the gnssip just as it found it. "On seeing the article in the Sun, or receiving it from the Uniled Press Association," says the editor in his testimony, "we were not supposed to make!J.n,y inquiry as to the truth of it, and I did not make any." If this does not evidence a "reckless indifference to the right!! of others, which is equivaltmt to an intentional violation of them," it is. somewhat difficult to conceive what will. .. It is urged, on behalf of the plaintiff in error, that it would be a physical impossibility for a newspaper to send an agent to every place where events are transpiring to ascertain by personal examination the exact facts, and that, if such a rule were insisted upon, "a paper could not give ,us all which we have a right to hear of the current events of the
FEDERAL REPORTER,
vol. 51.
day.",Qdwards v. Kansas Oity Times Cp., 32, fed. Rep. 815. Thattlie public has such a right tobe informed ast,() the private life of every indias to affairs of to the happiness or every. 'as will warrant the prqpn,etors of newspapers who cater to itS 'iva,Uts in publishing any falsehooeftbey may interesting to their readers, without any investigation iit:S truth, is a proposition, h?\Vever, t<> which this court is not to ,assent. Proprietors of newspapers, no doubt, know what of the day the .public wishes'to hear, and may find it decurrent to, s':!ch spicy. personal p as they find in the colcontemporarIes, or luay hear from others, but they must umns, at reason,able care that what tbey publish is the narrative ofa current event, and not a libelous falsehood; for itis only as the report, QLa current event that newspaper or public have any concern with it What proportion of th:El' columns ofa newspaper shall be devoted to reports of illicit relationsisa matter between itself and its readerll, to be settled by the \lommunityin which it circulates, and individuaJs who offend against morality and violate the laws of society may just cause to complain if the sin which was committed in a corneris proclaimed from topsjhut whosoever is void of offense to insist upon the protection the law gives htm, that no story of his private 'life, however racy may']:>e its details, shall be published with reckless indifference to his rights: The right to a reputation unlIPlirched by, slanderous 9r libelous pen is one which courts hold e,acted; and when the publisher of a libel urges,as his Role defense, that it is of his, paper to print such stories as these, whenever th,ey have appeared in the columns of withOut any inquiry as to their nl,anifests such complete indifference to another's rightsreckless un,concern as to the. ,mental anguish he may cause-as will warrant a jury in finding g1]ilty of wanton negligence. " th El refusal ofthEl trial judge ,to set The plaintiff in af)iqe the. qpon a motion for new trial,. and also contendeq. that thif'; court should. do. so on the ground that the record showed thM the verdiCt was excessive: A gecision upon a motion for It new trial, however,is not the of review iI;!. a federal appellate court, (Laber v. Qo,9Per,7 Wall. 565; Railway v.H(1Ck,102U. 8.120, andcl.tsestherein qited j) nor, when the properrule for the computation ofdamages has been given to the jury, can an 1:>e corrected in the federal courts U;,pon a writ error, Winter's Adm'r, 143 U. 8. 60,12 SU'p. Ct. Rep. .3$6; Hogg v. Emerson, 11 How. 587.) This statement of tbfil.well-settledr;l11e of practice, however, is not to be taken as an inti. l,qation that, in tllt1 opinion of this court, there is anything in the record to show that the verdict in this case was Elxcessive.
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BOBTHERN PAC·.R. CO. 1.1. CAVANA.UGH.
517
NORTHERN PAC.
R.
CO. 1.1. CAVANAUGH.
(Circuit Court 01 AppeaZs, E41hth Circuit. July 25, 1.892.) No. lOS. RAILROAD COMPANIES-INJURY TO EMPLOYE-FELLOW SERVANTS.
A brakeman received injuries in a collision caused by the negligence of e. con· ductor and engineer in disobeying the train dispatcher's orders. Held, the road company was liable. Railroad Co. v. Ross, 5 Sup. Ct. Rep. 184,112 U. S. 877, followed.
In Error to the Circuit Court of the United States for the District of Minnesota. Affirmed. Statement by SANBORN, Circuit Judge: This was an action brought by the defendant in error against the Northern Pacific Railroad Company for damages alleged to have rP,sulted to him from the negligence of the corporation. A jury was waived, and the case tried by the court upon a written ,stipulation, from which the following facts aIJpear: The plaintiff below was a brakeman in the emf ployment of the defendant corporation on November 4, 1889, upon one of defendant's freight trains, known as "No. 14," in the state of Washington, which was being operated on telegraphic orders. He had been employed by defendant for some time as a brakeman, and was a competent brakeman, familiar with his duties, which were those ordinarilyappertaining to. the position of brakeman on a railroad The stations on defendant's road, so far as material in this case, are, commencing at the west and running thence eastward, Sprague, Tyler, Cheney, Marshall .Junction, Spokane Falls, Trent, Hauser Junction, and Rathdrum. Train No. 14 was running eastward, and when it had passed Sprague; and was proceeding towards Tyler, another of defendant's trains,known as "No. 13," which was also operated on telegraphic orders, had passed was running thence westward. Thereupon the train dispatcher at Sprague issued a telegraphic order, which was in due season delivered to the conductor and engineer of each of these trains, to meet and pass each other at Marshall Junction. This train dispatcher had absolute control in the matter of directing where said trains shQuld meet and pass each other, and neither the engineer nor conductor of either of these trains had any power to change the place of meeting to any other point. One of the rules of the defendant under which these trains were being operated was: "Conductors will be held responsible for the safe management of theil' trains and for the strict performance of duty on the part of the men engaged with them. In order to secure effecti ve service. conductors must make them. selves familiar with the duties req uired from other train employes, and see that they are fully performed."
When train No. 14 reached Marshall Junction, it stopped a few moments, and then pulled out and started eastward, without waiting for train No. 13, in violation of the telegraploic order, and soon collided