116 F. 803 | 6th Cir. | 1902
having made the foregoing statement of the case, delivered the opinion of the court.
i. The action was a joint one against two defendants. There was a verdict and judgment against both for $15,000, and a verdict and judgment against Cunningham alone for $10,000. The joint judgment was cut down, upon suggestion of the court and by consent of the plaintiff, to $3,000; and the separate judgment against Cunningham alone has, upon motion of the defendant in error, and by order of this court at a former session of this term, been altogether released, remitted, and set aside. This was objected to by the plaintiff in error Cunningham, upon the ground that the error of the court below in rendering two separate judgments jn the same joint action could not be thus cured, and it is now insisted that the action of this court in allowing a remittitur of said separate judgment should not avail the defendant' in error in curing the error in rendering separate judgments against joint defendants. The court below, in substance, instructed the jury that, if they found both of the defendants guilty, they should find a verdict against both jointly for such an amount as would compensate the plaintiff for the entire injury done him by the publication; but that if they found that one
That the court erred in permitting such an apportionment of damages when the plaintiff had elected to sue both defendants in one action is very obvious. Wrongdoers sued together and found guilty in an action for slander or libel, or any other form of tort, are liable for the whole injury to the plaintiff; and the question as to whether one is more culpable than another is of no importance, for each is liable for all the damages, without regard to degrees of guilt. That one may have been actuated by that degree of ill will and evil purpose constituting actual malice does not in any wise justify a division of the damages, so as to throw upon one of two or more tort feasors sued together a responsibility beyond that cast upon the others, whether done by way of compensation or punishment. The common law prevails in Tennessee, where this action was tried, and there are no cases to which our attention has been called which justify the departure from the rule of common law as we have stated it. Gaslight Co. v. Lansden, 172 U. S. 534, 19 Sup. Ct. 296, 43 L. Ed. 543; Railroad Co. v. Jones, 100 Tenn. 512, 45 S. W. 681; Add. Torts, § 1395. It is plain that the error in the charge, if exception had been taken thereto,—which was not the case,—could have been corrected, so far as the defendants were concerned, by rendering a judgment only upon the verdict returned against both defendants. If, on the other hand, a motion in arrest of judgment had been made upon the ground that under the pleadings there could be but one judgment, the error could be corrected by setting aside the separate judgment, and suffering the joint judgment.to stand. Neither will this court reverse a judgment for an error which can be plainly cured, without prejudice to another, by a remittitur seasonably assented to. Tefft v. Stern, 21 C. C. A. 67-73, 74 Fed. 755; Hansen v. Boyd, 161 U. S. 397, 16 Sup. Ct. 571, 40 L. Ed. 746; Bank v. Ashley, 2 Pet. 327, 7 L. Ed. 440, 492; Construction Co. v. Seymour, 91 U. S. 646-656, 23 L. Ed. 341.
2. The plaintiff, by innuendoes, has assigned a meaning to several
“By Mr. Champion, for Cunningham: We expect to prove there was organized. in 1895 what was known as the ‘Chicago and Southern States Association.’ By the Court: If you want to make an avowal, you can come here and make it. By Mr. Champion, for defendant Cunningham': We expect to prove that this Chicago and Southern States Association was organized in 1895, primarily for the purpose of bringing about a better feeling between Chicago and the Southern states with reference to trade, etc., and also for the purpose of doing honor to a regiment of which Col. Turner was the colonel. Mr. Underwood was made the principal manager of that enterprise, and had charge of its finances,—really organized it in a great measure. And we expect to show that there was a secret arrangement between him and the railroad companies, whereby he was to get five dollars on every passenger that went on that 'trip. There were five trains, and when this fact was made known to the executive committee, through the secretary, ’ Mr. McNeal, a meeting was immediately held by the executive committee, which resulted in the discharge of Mr. Underwood under a certain compromise arrangement, and he had no further connection with the excursion. This fact was known to Mr. Cunningham at the time he wrote this communication. (Objected to by attorneys for plaintiff.) By the Court: And the court sustains the objection to it, because it is not pertinent in any way whatever to any issue in this case. (To which action of the court defendant Cunningham excepted.)”
The fact that the examination in chief of the witness then on the stand had not been concluded when the above avowal was made, and that it was evidently made to the court at the court’s suggestion, and out of hearing of the jury, leads us to the conclusion that it was an avowal of evidence which it was desired to elicit from the witness then under examination. The truth of any defamatory words is, if pleaded, a complete defense to any action of libel or slander. The
The defendant undertook to justify generally, without distinguishing between the meaning imputed by the innuendoes and a more mitigated sense. Where this is done it is a defense which must be regarded as a justification to the libel as explained by the innuendoes. To sustain such a plea it is necessary to prove the truth of the libel with the meaning averred in the declaration. Atkinson v. Free Press, 46 Mich. 341, 347, 9 N. W. 501. The special matter which the defendant proposed to prove had no direct connection with any conduct of the plaintiff in respect of his duties as a salaried official and representative of the Confederate Memorial Association. But if the facts which the defendant offered to prove were true, and were known to him when he published the libel in question, it would tend to establish the truth of the words imputing unfitness to the plaintiff for the work he was engaged in by reason of acts and conduct which, without explanation, might well go to a jury as tending to show that plaintiff had been guilty of “dishonorable,” “dishonest,” and “disreputable” conduct, as charged in the declaration. The meaning imputed to the words used by the defendant of the plaintiff having been averred to be that he had been guilty of' dishonorable, dishonest, or disreputable conduct rendering him unworthy of trust and confidence, it would be strange, indeed, if the defendant should be prevented from proving specific instances of just such conduct as a defense. Greenl. Ev. (16th Ed.) § 14h; Ratcliffe v. Courier-Journal Co., 99 Ky. 416, 36 S. W. 177; Lanpher v. Clark, 149 N. Y. 472, 44 N. E. 182. The libel as interpreted and explained by the innuendoes is the libel which the defendant undertook to justify. He has, in effect, boldly alleged that the words, taken in the meaning designated by the plaintiff, are true. When justification to so general and vague a charge or collection of charges is pleaded, the justification must be pleaded with such particularity as to give the plaintiff precise notice of the charge he is to meet. Thus, in illustration, it is stated in Odgers, Lib. & Sland., at page 135, that:
“If the lihel makes a vague general charge,—as, for instance, that the plaintiff is a swindler,—it is not sufficient to plead that he is a swindler. The de*810 fendant must set forth the specific facts which he means to prove in order to show that the plaintiff is a swindler.”
This is precisely what the defendant Cunningham did, and, having assumed all the responsibility of such a challenge, evidence tending to prove the truth of his plea was erroneously excluded.
3. Error is assigned upon the ruling of the court that the witness B. M. Hord was not qualified to speak as to the general reputation of the plaintiff, Underwood. The witness was asked by one of the attorneys for the defendant whether he knew plaintiff’s general character in Nashville at the time of the alleged libel. Thereupon the following colloquy between the witness and the counsel and the court occurred:
“Witness: His general reputation for morality? Counsel for Plaintiff: State first whether you know it. By the Court: You understand now what is meant by his general reputation for morality,—that is, the estimate in which he was held by a majority of the people here, having talked with them. A. His general reputation? By the Court: Do you know that? A. I know, from having talked with people, what his general reputation is. I don’t know of my personal knowledge. By the Court: Understand, you know what the phrase ‘general reputation’ means,—the estimation in which he is held by a majority of the people here. Now, have you talked to the people in this community, to the majority of them, or anything like that, or have you only talked to those in your bivouac? A. Oh, I'have talked to people out of my bivouac, but I couldn’t say I have talked to a majority of the people in this community. By the Court: How do you know, then? That is the test. How do you know his general reputation; not what a few people may think of him, but his general reputation? A. His general reputation I can only judge by the majority of the people I have talked to. That is bad. By the Court: The jury must disregard that statement, because that was thrust out without permission of the court, and while the court was trying to find out whether he was qualified to make such statement. By Mr. Champion: I don’t understand it is necessary for him to talk to a majority of all the people. By the Court: No; but a majority to whom he has talked might show his prejudice, if he had any, and would not be a test of his reputation in this community. If he knows what his general reputation is here, he may say. He knows or he does not know. Q. You lived here at the time? A. Yes, sir. Q. Talked with a great many people,—enough to satisfy you? A. Yes, sir. (Objection by plaintiff as leading. Objection sustained.) Q. You talked with a great many people? By the Court: How many does he mean by a great many people? Q. State, then, Maj. Hord, if, from the people you talked with, both in and out of the bivouac, you know his general character for morality? By the Court: In this community, whether you know his general reputation; and if you know what this is, you can answer whether you know his general reputation. A. His general reputation— By the Court: State yes or no, whether you know his general reputation, whether you are acquainted with it. A. If I could get it clearly into my mind what is his general reputation. By the Court: I have explained, it is the estimation in which he is held by the people generally; not by a few, or a little number, but generally. Now, do you know that general reputation? Can you answer that yes or no? A. I don’t know all the people in the community, but— (Objection by the plaintiff.) By the Court: You can answer that question yes or no. A. But his reputation with those that I know— By Mr. Baxter Smith: You need not tell what his reputation is with them. State whether you know it or not. A. I only know it from hearsay. By Mr. Champion: Do you know enough to know what his reputation was at that time? By the Court: That is precisely what the court is trying to test him about,—whether he knows how he is held by the people generally. You understand what that means,—how he was held by the people in this community generally, what his general reputation is, what the people generally think of him; not a few, or a little number, anything of that sort, but the people generally. You can answer that question*811 yes or no. Do you know his general reputation or not? A. People generally, as far as I know— By the Court: Answer the question whether you know his general reputation or not. You can answer that yes or no, now. A. Take it as a whole, I would say no.”
The general reputation of one inquired about is the estimate in which he is held by the community, and the usual and well-approved method of inquiring into general reputation, or general reputation in respect of any particular trait of character, is to ask the witness whether he knows the general reputation of the person in question among those who know him, and whether that reputation is good or bad. Greenl. Ev. § 461; Ford v. Ford, 7 Humph. 91; Gilliam v. State, 1 Head, 38, 73 Am. Dec. 161; Gifford v. People, 148 Ill. 173, 35 N. E. 754; Robinson v. State, 16 Fla. 835. Ordinarily, the value of the witness’ evidence may be left to be determined by a cross-examination as to the extent and means of his knowledge of the reputation borne by the person inquired about. It is, however, not unusual, nor improper, on objection to require the party offering the witness to show, before allowing the witness to speak, the knowledge which the witness has of the general reputation of the person in question. The witness’ knowledge of reputation must for the most part be derived from what he has heard others say upon the subject. But it is a great mistake to suppose that unless the witness has talked to a majority, or any other large proportion, of a community, that he is not qualified to speak. Nashville is a city of about 100,000 people. In a “community” so populous it might well be that a very small number of persons would know anything whatever about a particular inhabitant, and that a still smaller number had been heard by a witness to say what was thought or said of the person inquired about. The “community” whose estimate of character is to be ascertained is, therefore, composed of those called by some jurists “his neighbors,” by others “his associates or acquaintances,” and by still others as those who are “conversant” with him. The provable general reputation of one is, in a large sense, the prevailing estimate concerning the person inquired about entertained by the community thus defined. It must follow,' therefore, that it is not necessary that a character witness shall be able to say that he knows what a majority, or any other particular number, of the persons conversant with the person inquired about say about him. If the witness has heard enough to enable him to say that he thinks he knows the prevailing opinion entertained of him by his acquaintances, he is competent to speak, subject to cross-examination as to sources, extent, and correctness of his information. Gifford v. People, 148 Ill. 173, 35 N. E. 754; 1 Greenl. Ev. § 461; State v. Turner, 36 S. C. 534, 15 S. E. 602; 5 Am. & Eng. Enc. Law, 880; Robinson v. State, 16 Fla. 835; Ford v. Ford, 7 Humph. 92; Pickens v. State, 61 Miss. 563; State v. Reed, 41 La. Ann. 581, 7 South. 132. One cannot read the colloquy set out above without reaching the conclusion that the witness was qualified to speak, but was repressed by the effect upon his mind of the plainly erroneous instructions from the court that general reputation “is the estimate in which he is held by a majority of the people here, having talked
4. Several errors have been assigned upon the charge of the court. So far as the assignments are pointed at the instructions of the court as to certain parts of the publication being libelous per se, it is enough to say that the only exception to the charge of the court in respect to that subject is a general exception “to the portions of the charge wherein it is stated that certain parts of the publication are libelous per se.” As there were a number of parts of the publication construed to be libelous per se, this exception is applicable to each one. As some parts of the publication were confessedly libelous per se, all questions of truth or privileged occasion out of the way, the exception is too broad, and therefore bad. It is not admissible under so broad an exception to assign error upon a single one of many paragraphs of a charge, some sound and some unsound. All must be alike erroneous to save so general an exception. The court instructed the jury that the evidence did not show that the publication in question was conditionally privileged. We are unable to find any exception to this part of the charge.
5. The court instructed the jury that the fact that the newspaper owned and edited by the plaintiff in error Cunningham, and in which the publication in question was made as an editorial, was the official organ of the Confederate Veterans’ Association, was of “no consequence in the case, so far as I can see.” This was error. For the purpose of rebutting malice it was competent to show the relation which Cunningham and his paper bore to the veterans, also 'represented by Underwood, and evidence showing a good purpose in making the publication was clearly competent to rebut malice. It was also competent upon the question of conditional privilege. In
For the errors indicated, the judgment as to plaintiff in error •Cunningham will be reversed, with costs, and a new trial awarded.