130 F. 944 | U.S. Circuit Court for the District of Middle Pennsylvania | 1904
This is an action for the publication in the Scranton Truth, of which the defendants in August last were the proprietors, of an article which related to the plaintiff — as it is claimed — and was a libel upon her. Until within a year or two past, under the stage name of “Annie Oakley,” she was connected with the “Wild West Show” conducted by W. F. Cody, familiarly known as “Buffalo Bill,” and gave exhibitions of her skill with the rifle in almost daily performances all over the United States and in several countries of Europe, and particularly at the World’s Fair at Chicago in 1893 and at Buckingham Palace before the present King of England, then Prince of Wales. This explanation will show the application of the article of which complaint is made, which is as follows :
“Annie Oakley in Prison Cell.
“A Chicago dispatch to the Philadelphia Press last week says: ‘Annie Oakley, daughter-in-law of “Buffalo Bill,” and the most famous woman rifle shot*946 in the world, lies to-day In a cell at the Harlem Street Station, under a Bride-well sentence, for stealing the trousers of a negro in order to get money with which to buy cocaine.’
“This is the woman for whose spectacular marksmanship King Edward himself once led the applause in the courtyard of Buckingham Palace.
“When arrested Saturday on the complaint of Charles Curtis, a negro, she was living at 140 Sherman street. • She gave the name of Elizabeth Cody, but it occurred to no one to connect her with Colonel Cody’s famous daughter-in-law. To-day, however, when brought before Justice Caverly she admitted her guilt.
“ T plead guilty, your honor, but I hope you will have pity upon me,’ she begged. ‘An uncontrollable appetite for drugs has brought me here. I began the use of it years ago, to steady me under the strain of the life I was leading, and now it has lost me everything. Please give me a chance to pull myself together.’
“The striking beauty of the woman, whom the crowds at the World’s Fair admired, is gone. Although she is only twenty-eight years old, she looks almost forty. Hers, in fact, is one of the extreme cases which have come up in the Harrison street police court. She was taken to Bridewell to serve out a sentence of $25 and costs.
“ ‘A good long stay in the Bridewell will do you good,’ said the court.
“The prisoner’s husband, Samuel Cody, died in England. • Their son, Vivien, is now with Colonel Cody at the latter’s ranch on the North Platte. The mother left ‘Buffalo Bill’ two years ago, and has since been drifting around the country with stray shows.”
At the trial the defendants offered in evidence the depositions of witnesses taken in Chicago with respect to the origin of the article, which the court excluded. This testimony was “brought forward for two avowed purposes: First, to establish that there was a founda-. tion in fact for the article, there having been such an arrest and proceedings as are described in it; and, second, on the question of identity, to show that it had reference to another person than the plaintiff, to wit, to Elizabeth Cody, the woman who was arrested. The depositions, as taken, are full of irrelevant and incompetent matters, which would of itself be sufficient to justify their exclusion, the court not being called upon to separate the good from the bad, and the whole being offered together. But, passing that by, there was no mistake in rejecting them. It is not necessary to dwell at length upon the first purpose. It may be that the testimony elicited by the depositions goes to show a certain measure of truth, or foundation in fact, for the statements contained in the article, so far as concerns the person who was arrested; but certainly none is disclosed, as to the plaintiff in this action, to whom the article is made to apply, not only by her stage name, Annie Oakley, but by allusions to incidents of unmistakable significance in her professional career. As a justification, therefore, it fails utterly. And it is equally unavailing in mitigation of damages. There is no pretense that the original facts on which the Chicago reporter worked up this sensational story were ever communicated to the defendants, and they certainly cannot set up in extenuation of their actions something, however true, of which they had no knowledge. Hatfield v. Lasher, 81 N. Y. 246; Sun Printing Association v. Schenck, 98 Fed. 925, 40 C. C. A. 163; Morning Journal Association v. Duke (C. C. A.) 128 Fed. 657.
Nor were the depositions admissible for the purpose of showing to whom the article was intended to apply. Undoubtedly, it was for
Complaint is further made of the way the case was submitted to the jury. It left nothing for them — as it is said — but to return a verdict for the plaintiff for substantial damages, the court injecting its own ideas into the charge, and constraining their judgment. On the undisputed facts there were but two questions to dispose of. The libelous character of the article could not be gainsaid. It held up to public odium the party referred to. in it, whoever that was, attributing to her a low and degraded life in marked contrast with her former position. Actual crime was also ascribed to her in the stealing of .a pair of trousers from a negro. There being no legal justification for these statements, malice in publishing the article was presumed. The
But it is said that the court practically required of the jury a verdict for substantial damages, when they ought to have been permitted to give nominal damages only, if they chose. This is not a fair criticism of the charge, nor can it be successfully maintained that any such constraint was put upon them. The different kinds of damages were fully and carefully explained to them, and the accepted rule laid down that they were to give such as, in their judgment, would compensate the plaintiff for the injury, if any, which she had suffered. It was pointed out in this connection that she had shown no special damages, or such as affected her in her profession as a crack shot performer, proof having been given out of her own mouth that a new engagement of the same character, and with the same troupe as before, had been offered her since the libel, which she had been prevented from accepting solely by reason of ill health. Defendants’
In view of the verdict, which was only $900, the question of punitive damages can hardly be regarded as more than academic. But, in any event, I do not see that serious objection could be made to the instructions upon that subject. Even without proof of actual malice, it is doubtful whether the question could have been withdrawn from the jury (Callahan v. Ingram, 122 Mo. 355, 26 S. W. 1020, 43 Am. St. Rep. 583; Hintz v. Graupner, 138 Ill. 158, 27 N. E. 935; Hamilton v. Eno, 81 N. Y. 116; Bergmann v. Jones, 94 N. Y. 51; Blocker v. Schoff, 83 Iowa, 265, 48 N. W. 1079); and it certainly could not, in view of the evidence which warranted a finding that the publication was carelessly, if not recklessly, made, having been copied from another paper without inquiry, and in the face of a retraction (Regensperger v. Kiefer [Pa.] 7 Atl. 724; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701; Smith v. Sun Printing Association, 55 Fed. 240, 5 C. C. A. 91). But it is not necessary to dwell upon this, for the defendant certainly had no reason to complain of the way it was treated by the court. “The plaintiff asks me to instruct you further,” it is said in the charge, “that in this case you should award punitive damages, to punish the defendants because of carelessness in the publication of this article. I think this a matter for you. If you see in the case (there being confessedly no special enmity on the part of the defendants) anything by reason of the carelessness on their part, in repeating this libel without any attempt to verify it, to award a further sum to meet the aggravation of the case, as something to punish the defendants, I. suppose it is in
There are other matters which are relied upon, some 18 reasons in all being assigned for a new trial; but I will not stop to consider them. With every desire to rectify any mistake that was made to the detriment of the defendants, I am not persuaded that there was any of which they can justly complain.
The rule for a new trial is discharged.