248 F. 251 | 6th Cir. | 1917
“At tlie instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. The party calling for such examination shall not thereby be concluded but may rebut by counter-testimony.”
The trial court held the statute not binding upon the federal courts. In Murray v. Third National Bank, 234 Fed. 481, 491, 148 C. C. A. 247, this specific question was passed without decision. We there,, however, construed the latter sentence in the section as giving the right only to rebut the testimony of the witness by showing the facts to. be otherwise than stated by him, holding that such right existed without the statute, even as to one’s own witnesses. Again, a party has-
The result of the Conformity Act (Rev. Stat. § 914; Comp. Stat. 1916, § 1537), the Rules of Decision Act (Rev. Stat. § 721; Comp. Stat. 1916, § 1538), and the Competency of Witnesses Act (Rev. Stat. § 858; Comp. Stat. 1916, § 1464), is to make state statutes relating to the competency of witnesses and the competency of testimony, as well as the state law of evidence generally, binding on the federal courts sitting within such state, except where in conflict with the federal Constitution, statutes, or treaties. McNiel v. Holbrook, 12 Pet. 84, 89, 9 L. Ed. 1009; Ryan v. Bindley, 1 Wall. 66, 68, 17 L. Ed. 559; Connecticut Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 252, 5 Sup. Ct. 119, 28 L. Ed. 708; Ex parte Fisk, 113 U. S. 713, 720, 5 Sup. Ct. 724, 28 L. Ed. 1117; Bucher v. Cheshire R. R. Co., 125 U. S. 555, 583, 8 Sup. Ct. 974, 31 L. Ed. 795; Nashua Bank v. Anglo-American Co., 189 U. S. 221, 228, 23 Sup. Ct. 517, 47 L. Ed. 782; Central Vt. R. R. Co. v. White, 238 U. S. 507, 511, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252.
On the other hand, it is equally well settled that the personal con-. duct and administration of the trial on the part of the judge in the discharge of his separate functions is not within the Conformity Act. We refer, in note hereto, to illustrations of this principle contained in the decision of this court in Knight v. Illinois Central R. R. Co., 180 Fed. at page 372, 103 C. C. A. 514.
The ultimate question thus is whether, on the'one hand, the statute is to be considered as a matter of procedure, or a law of evidence or a rule as to the competency of testimorqq or whether, on the other hand, it is to be regarded as a subject within the personal conduct and administration of the trial on the part of the presiding judge. In our opinion, the statute is not, properly speaking, a matter of procedure, a law of evidence or a rule of the competency either- of witnesses
We think the right of cross-examination attempted to be given by the statute falls, by fair analogy, directly under the ban of the well-séttled rule in the federal courts that, subject to certain exceptions not here important, the right to cross-examine a witness is limited to the subject-matter of his direct examination. Philadelphia, etc., R. Co. v. Stimpson, 14 Pet. 448, 461, 10 L. Ed. 535; Houghton v. Jones, 1 Wall. 702, 706, 17 L. Ed. 503, where it is said “the rule has been long settled that the cross-examination of a witness must be limited to the matters stated in his direct examination”; Wills v. Russell, 100 U. S. 621, 626, 25 L. Ed. 607, where in holding that a judgment would not be reversed because cross-examination was not limited to the examination in chief, it was said that “the mode of conducting trials, and the order of introducing evidence, and the time when it is to be introduced, are matters properly belonging very largely to the practice of the court where the matters of fact are tried by a jury”; McKnight v. United States (C. C. A. 6) 122 Fed. 926, 928, 61 C. C. A. 112; Foster v. United States (C. C. A. 6) 178 Fed. 165, 177, 178, 101 C. C. A. 485; Piales v. Mich. Central R. R. Co. (C. C. A. 6) 200 Fed. 533, 538, 118 C. C. A. 627; in which latter case it is said “the general rule of practice in the federal courts limiting cross-examination to the matters embraced in the examination in chief, subject to certain exceptions, is settled.” If the statute in question is binding upon the federal courts, no reason is apparent why a statute of a state giving to a party the complete right to cross-examine his adversary’s witness, without reference to the subject-matter of the direct examination, would not be equally binding upon the federal courts.
In view of the long-established course of decisions, to some of which we have referred, we cannot doubt that such statute would be held not so binding. We have not overlooked the fact that in Davidson S. S. Co. v. United States (C. C. A. 8) 142 Fed. 315, 73 C. C. A. 425, a similar statute of Minnesota was applied to a suit in the federal courts. In that case, however, the question we are considering* ■ viz. whether the statute was binding upon the federal courts, does not seem to have been raised or considered.
2. The remaining question relates to the refusal, following the charge, of a request that:
“If the jury come to consider the question of malice as a foundation for punitive- or exemplary damages, the jury cannot impute any malice if they should find Mr. Johnson had any, to his employers. The malice of an agent cannot be imputed to his principal.”
The remarks of the judge in denying motion for new trial seem to indicate that he understood defendants’ contention to be that the corporation was not subject to punitive damages in an action for libel, which, of course, iá not the law. Washington Gaslight Co. v. Ransden, 172 U. S. 534, 544, 19 Sup. Ct. 296, 43 L. Ed. 543. In this court
The general rule of law invoked is well established. L. S. & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 109, 13 Sup. Ct. 261, 37 L. Ed. 97 et seq.; Memphis Co. v. Cumberland Co. (C. C. A. 6) 231 Fed. 835, 838, 146 C. C. A. 31 et seq., and cases cited in that opinion. As an abstract statement of law, the requested instruction was too broad. The malice of an agent may, under proper circumstances, including the quality and authority of such agent, be imputed to his principal. L. S. & M. S. Ry. Co. v. Prentice, supra; Memphis Co. v. Cumberland Co., supra. For example, a newspaper corporation has been held liable in punitive damages for the malicious conduct of its general manager — although he need not be a member of the corporation— (Post Publishing Co. v. Hallam [C. C. A. 6] 59 Fed. 530, 536, 8 C. C. A. 201); and subsequent approval or ratification by a corporation of the unlawful acts of even a subordinate agent makes it also liable in punitive damages.
“The defendant company was by no means totally ignorant of Johnson’s past career as the writer of articles, and it tools a long chance when it gave him a loose rein in editorial matters. If it did not know it before, it knew it after the first article appeared.”
A distinction between imputed and original liability of a principal by virtue of a subsequent approval or ratification of his agent’s acts would, for the purposes of this review, seem overrefined. Upon this meager and unsatisfactory record, we cannot say that the refusal of the requested instruction was reversible error.
This conclusion makes it unnecessary to consider the question, which obtrudes itself, whether the managing editor of a publication, though not the general manager or an officer of the publishing corporation, so far wields the executive authority, and'is so far the other self of the corporation, with respect to such publications, as that his reckless disregard of the rights of those made the subject of such publications, as distinguished from private malice or personal grudge, is imputable‘as matter of law to the corporation, regardless of its approval or ratification.
In nothing we have written have we intended to express any opinion of our own upon the merits of the case, or as to the fault or freedom from fault of either the editor or the Publishing Company.
The judgment of the District Court is affirmed. *
State statutes and state Constitutions forbidding .judges in charging juries to express an opinion upon the facts are not binding on the federal courts (Railroad Co. v. Putnam, 118 U. S. 545, 553, 7 Sup. Ct. 1, 30 L. Ed. 257; Railway Co. v. Vickers, 122 U. S. 360, 7 Sup. Ct. 1216, 30 L. Ed. 1161); nor are state statutes providing that written instructions shall be taken by the jury in their retirement and that papers read in evidence may be taken by them (Nudd v. Burrows, 91 U. S. 426, 23 L. Ed. 286); nor provisions that the judge require the jury to find specially upon particular questions of fact (Railroad Co. v. Horst, 93 U. S. 291, 299, 23 L. Ed. 888; McElwee v. Metropolitan Lumber Co. [6th Circuit] 69 Fed. 302, 319, 16 C. C. A. 232); nor statutes requiring that all instructions of the court to the jury shall be in writing (Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224); nor does the statute require the federal court to follow a state practice forbidding the separation of a jury after charge given and before verdict rendered (Liverpool & L. & G. Ins. Co. v. Friedman [6th Circuit] 133 Fed. 713, 716, 66 C. C. A. 543); nor is a state statute dispensing with the requirement that exceptions to the charge be made while the jury is at the bar, and before it retires, binding upon the federal courts (Consumers’ Cotton Oil Co. v. Ashburn [5th Circuit] 81 Fed. 331, 333, 26 C. C. A. 430).
Press Publishing Co. v. Monroe (C. C. A. 2) 73 Fed. 196, 201, 202, 19 C. C. A. 429. 435, 51 L. R. A. 353, where it is said: “Approval of the conduct of the particular editor who had direct ed the publication tended to prove ratification of his acts”; L. S. & M. S. Ry. Co. v. Prentice, supra, 147 U. S. at p. 110, 13 Sup. Ct. 261. 37 L. Ed. 97; Bass v. C. & N. W. Ry. Co., 42 Wis. 654, 666, 24 Am. Rep. 437; Ricketts v. C. & O. Ry. Co., 33 W. Va. 433, 439, 10 S. E. 801. 7 L. R. A. 354, 25 Am. St. Rep. 901; Haines v. Schultz, 50 N. J. Law, 481, 481, 14 Atl. 488; Craven v. Bloomingdale, 171 N. Y. 439, 448, 64 N. E. 169.
L. S. & M. S. Ry. Co. v. Prentice, supra, 147 U. S. at p. 113, 13 Sup. Ct. 261, 37 L. Ed. 97; Milwaukee, etc., Ry. Co. v. Arms, 91 U. S. 489, 495, 23 L. Ed. 374; Press Pub. Co. v. Monroe, supra, 73 Fed. at p. 200, 19 C. C. A. 429, 51 L. R. A. 353; Maclean v. Scripps, 52 Mich. 214, 222, 17 N. W. 815, 18 N. W. 209.