Enquirer Co. v. Johnston

SHOWALTER, Circuit Judge (after stating the facts as aboye): Defendant in error testified as a witness on the trial. She was asked by her counsel, “How many children have you?” and answered that she had three, aged, respectively, 6£, 5-|, and 3£ years. In his charge to the jury, the court said: “In determining the amount of damages, you may take into consideration her family relations and her social standing, the injury, if any, to her feelings, her wounded sensibilities, and her sense of shame and dishonor.” This direction and the foregoing question and answer are assigned as errors, the point of objection being that the jury were thereby given “the right to consider, as an element of damage sustained by plaintiff,” the fact that she had three children of the ages stated. The hurt by a libel is primarily to reputation, meaning the esteem in which the person libeled is held by others. Involved in this is the pain or suffering personal to the injured party, to wit, the consciousness of degradation attaching to himself and those whose lot in life is determined by his own. It is not the sense of this record that the children of defendant in error were to be compensated. The children were part of her environment. Her relation to them was such as might make the hurt to herself more acute and permanent, such as might render her more sensitive to and more helpless against the wrong done. This court cannot hold that the fact objected to was improperly brought to light, especially in view of the peculiar character of the publication in question. Barnes v. Campbell, 60 N. H. 27; Bolton v. O’Brien, 16 L. R. Ir. 97, 110; Chesley v: Tompson, 137 Mass. 136; Klumph v. Dunn, 66 Pa. St. 141; 3 Suth. Dam. p. 259, § 1210; Id. p. 2599, § 1214. The matter quoted from the charge, in connection with the remainder of the charge as quoted below, could not have misled the jury. The trial judge said, in concluding his charge: “In determining the amount of damages, you may take into consideration her family relations and her social standing, the injury, if any, to her feelings, her wounded sensibilities, and her sense of shame a.nd dishonor. You may also take into consideration the publicity given to the accusation, and all the circumstances in evidence bearing on the character and extent of her injury, and award her such sum as shall fully and fairly compensate her for all the wrongs .and injury inflicted upon her by such publication. In determining what amount would be just and proper, you may take into consideration any circumstance in the? evidence which tends to show that the defendant was [445] not actuated by actual malice, or that it acted in. good faith, in the honest belief that it was publishing the truth, in malting the publication, as matters in mitigation of the damages. You should, however, remember that the reputation of a woman for chastity, and especially .the reputation of a mother, having children, for chastity, is a thing of Inestimable value, and that any injury done to such reputation by llio publication of false and libelous charges ought to he compensated for by the assessment of damages which should be a full and adequate satisfaction for all the wrong and injury inflicted upon her.” Counsel for- defendant (plaintiff in error) then said: ‘*1 will ask your honor to state the rule that in this case the jury must not, in assessing damages, in any event allow anything by way of vindictive or punitive damages.” And the court added: “1 will do so, although I think it is covered in my charge. While it is your duty to return, if you should return a verdict for the plaintiff, a verdict for such sum as shall fully and fairly and completely compensate her for all the Injuries that she has suffered, or will suffer in the future, you arc not permitted to assess anything by way of punishment, or vindictive damages; simply compensatory damages.” Error is assigned upon the following wdrds, taken from the foregoing portion of the charge: “You should, however, remember that the reputation of a woman for chastity, and especially the reputation of a mol her, having children, for chastity, is a thing of inestimable value.” This sentence did not involve any proposition of ¡aw. In view of the context, it could not have been understood by the jury as anything more than au observation, sentiment, or opinion which the judge saw flt to express. That to the normal woman, especially if she be in a state of widowhood with small children around her, a reputation for chastity is of very great importance, is an inference which the ordinary observer, whether he happen 1o be judge or juror, will he apt to draw from social phenomena in ibis country. But it is an inference of fact. The legal effect of the charge here was not altered by the words objected to. In Smith v. Association, 14 U. S. App. 173, 5 C. C. A. 91, and 55 Fed. 240, which was a case very like (he present, the trial judge, referring substantially to the same matter as that spoken of by the trial judge in this case, said in his charge: “It is impossible to arrive by any arithmetical calculation at the amount of damages to which she is emitled on this account.” Responding to the error assigned on this pro muncement, the court of appeals said: “This was a truthful statement, and the jury being further instructed that they were to compensate for the actual injury caused, that, while the amount was in their control, the amount should he reasonable and should be just, the defendant’s exception is clearly unsound.” It is not claimed in the case at bar that the jury were not correctly instructed as to the measure of damages. The error upon the statement above quoted from the charge is therefore not well assigned. To one A. C. Barnett, a witness called by defendant in error, was put by her counsel the following question: “You may state, Mr. Barnett, after reading the article [meaning the publication in question], to whom did you understand it referred when it spoke of Mr. Johns [446] ton’s intimacy with the wife of a deceased brother?” The witness answered: “I understood it to mean Mr. Johnston and the widow that had come from Australia, that he had sent for.” Counsel for plaintiff in error objected’ to the question, saying: “That, while the facts and circumstances might be proven, it was for the jury to determine who was meant.” In this court the point is argued by both sides as though the witness had answered that, upon first reading the publication, he understood defendant in error to be the person 'referred to by the words “the wife of a deceased brother.” Mr. Barnett was himself an hotel keeper in Logansport. He knew Johnston, and had been acquainted with defendant in error during all the time of her residence in Logansport. In Odgers on Libel and Slander (page 507), it is said: “The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that, on reading the libel, they at once concluded that it was aimed at the plaintiff. It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.” To the same effect is the text in Falkard’s Stark-ie on Libel and Slander (4th Eng. Ed. p. 589). In Eastwood v. Holmes, 1 Fost. & F. 349, Willis, J., ruled out the question: “To whom did you understand the article to apply?” But in that case the publication showed on its face that it applied to an entire class of dealers, and not to the particular person who brought the suit. Moreover, the court held the publication itself not actionable. Decisions in England and in this country seem in general to be in accord with the text as quoted from Odgers. Du Bost v. Beresford, 2 Camp. 512; Cook v. Ward, 6 Bing. 412; Broome v. Gosden, 1 C. B. 728; Bourke v. Warren, 2 Car. & P. 307; Knapp v. Fuller, 55 Vt. 311; McLaughlin v. Russel, 17 Ohio, 481; Prosser v. Callis, 117 Ind. 105, 19 N. E. 735. One’s reputation is the sum or composite of the impressions spontaneously made by him from time to time, and in one way or another, upon his neighbors and acquaintances. The effect of a libelous publication upon the understanding of such persons, involving necessarily the identity of the individual libeled, is of the essence of the wrong. The issue in a libel case concerns not only the sense of the publication, but, in a measure, its effect upon a reader acquainted with the person referred to. The accuracy of the witness as to identity may be tested by cross-examination. At all events, and in view of the answer by Mr. Barnett, which appears to be the only matter in the record suggesting the possibility that there might have been some “wife of a deceased brother” other than this defendant in error to whom the publication in fact referred, this court cannot hold the error in question well assigned. One Gravis, a witness called by plaintiff in error, testified that twro daily newspapers, The Pharos and The Daily Journal, were published in Logansport. Error is assigned upon the refusal of (the court to permit an answer to the'following question put to this witness: “You may tell the jury whether publications of the purport of the one [447] you have there [being the article published in the Cincinnati Enquirer] were published in those papers?” This inquiry covered publications which might be subsecpient to or copied from that sued on. It was not error to exclude au answer. In the’course of the charge, the court said: “There is no privilege in journalism which will excuse a newspaper in publishing false and defamatory charges when any other like publication by another person would not be excused. Whatever functions the journalist performs are assumed for his own advantage, and are laid down at his will, and are performed under the same responsibility attaching to all other persons. A journalist is not above the law. The greater extent of circulation makes Ms libels more damaging, and imposes special duties, as to care to prevent the risk of such mischief, proportionate to the peril.” The last sentence, which is the matter assigned as error, is a truism; namely, that whoever, for personal profit, voluntarily makes use oí au instrumentality which may .be exceptionally hurtful to-another, must, for that reason, be the more careful. The word “satisfaction,near the close of the charge, a,s before quoted in this opinion, obviously means “equivalent” or “compensation.” The judgment is affirmed.