Fenstermaker v. Tribune Publishing Co.

12 Utah 439 | Utah | 1895

King, J.:

This is an action for damages, founded upon the publication of an alleged defamatory article. Plaintiff alleges that he resides upon a ranch known as the “Box Elder Ranch,'' and is the head of the family of Fenstermaker, residing thereon, and that defendant published in its daily and weekly newspapers (which he alleges were extensively circulated), of and concerning him, the following false and defamatory matter:

“Fiend-like Act to a Child — A Little Child Turned Out into the Desert to Die — Her Rescue. One of the worst cases of cruelty ever heard of in this section of the country comes from the county of Box Elder, and the facts, as stated, are enough to make the blood of an average man boil with indignation. Last summer a little girl named Caroline Hansen came here from Sweden with her grandparents. They went to live at Cottonwood, and continued to reside there until the old people died. The little girl then went to live with a family named Reddan, who reside in the Ninth ward, this city. After staying there a short time, the folks tired of her, and she was sent to a family named Fenstermaker [meaning the family composed' of the plaintiff and others], at Box Elder ranch, where she lived until the 24th of this month, when she was told to get out and go somewhere, — they did not care where,— and never come back again. They told her at the time that she must not go near the sheep herders, or they would kill her, and with this fear in her heart the poor child started ont to try and find another home. After wandering about the desert for two days and two nights, sleeping in the sagebrush, she was found by one of the sheep herders, and when discovered she begged piteously for her life, thinking that she was in danger of being killed.

“The herder, whose name is J. E. Murdock, had ,a hard time trying to quiet her, and when he finally did he took her to his cabin, and ministered to her wants. She was thoroughly exhausted and nearly starved, and it was no small task to get her back to a condition where it would be safe to give her all she wanted to eat and drink. * * * Yesterday he started for Tooele, and there he will swear out a complaint against the people who have treated her so brutally, and will see to it that they are brought to the justice that they so fully deserve. The case is actually one of the most heartless of its kind on record, and the people that would be guilty of such a deed must be very bad indeed. The matter of sending her away was bad enough, God knows, but their action in telling the child that she must not appeal to any one — for that is what their warning amounted to — is absolutely fiendish. It would seem that they wanted her to go out and starve to death, and that they planned to that end. When found, the little girl was in an emaciated condition, and had had nothing to eat for nearly three days, and was almost famished for water. The Fensterinakers live at what is called ‘ Box Elder Banch/ which is about ten miles from Grantsville, in the county of Box Elder. The inhuman people will have a chance to answer in the courts for the deed, and it is hoped they will be madé to suffer for their actions/’

One of the innuendoes stated that the article charged that plaintiff and other members of his family had been guilty of the crime of abandonment and neglect of children. The answer admits the publication, but denies that it was false, malicious, defamatory, or libelous. Upon the trial it alleges that the matter set out and alleged to have been published of and concerning plaintiff was in every respect substantially true, and was not made with any intent to injure plaintiff, or any other person. It denied that it conveyed, or was intended to convey, the meaning that plaintiff or other members of his family had been guilty of the crime of abandonment and neglect of children, or any crime whatever. The amended answer alleged that the charge and supposed defamatory words in the article complained of, and each and all of them, were true; that the child, Caroline Hansen, nentioned in the article complained of, came from Sweden, and resided for a time in Salt Lake City, and was afterwards taken into the Fen-stermaker family; that at about the time mentioned in the article she was found by J. R. Murdock, a sheep man, wandering in the desert; that she begged of him to spare her life, thinking she was in danger of being killed; that she informed Murdock that the persons with whom she had lived had told her to leave their house and go somewhere, — they did not care where, — and never return, and that she must not go near the sheep herders, or they would kill her, and that she averred that she had wandered in the desert for two days and nights; that Murdock took her to his cabin; * * * that it was the intention of Murdock to swear out a complaint against the people who had so treated the child, and bring them to justice. “Defendant avers that'the last paragraph of the article complained of was pertinent and proper comment, based upon the facts set forth in said article. * ' * * And ■ defendant hereby pleads the foregoing in mitigation, as well as in justification, of the said libel.” There are more than 40 assignments of error, but it is unnecessary for us to consider all of them, for the reason that the few discussed herein convince ns that tbe judgment of the lower court must be reversed.

Kespondent contends that plaintiff failed to make out a case., and therefore, if error were committed, he cannot complain. In support of this position, it is argued that the article upon which the action was founded did not refer to an individual, but to a class. It seems that, after plaintiff had called his first witness to .the stand, defendant objected to any testimony being introduced, for the reason that the complaint did not state a cause of action, as the article sued on did not refer to an individual, but to a class. During the discussion that followed, plaiutiff’s counsel stated that the innuendoes in the complaint which pointed the alleged defamatory words to plaintiff might be stricken out as surplusage. Whether, this was done or not the record fails to disclose; but the respondent proceeds upon the assumption that they were eliminated from the complaint, and therefore it is urged there were no averments of facts, by way of innuendo, connecting the publication with the plaintiff. In answer to this it is argued that defendant’s answer, by failing to deny that the publication was of and concerning the plaintiff, is to be treated as an admission that the plaintiff is the person against whom it was directed, and that such admission dispenses with the necessity of averments or proof connecting plaintiff with the alleged defamatory matter.

Bespondentis counsel insist that the answer does contain a denial of this averment. But it is clear that they are mistaken. The answer simply denies that the publication was false or malicious, or that defendant published any false or defamatory matter of or concerning plaintiff, but there is no denial of the allegation that the article in question was published of and concerning the plaintiff. The important allegation to be denied, if a denial could be made, was that which imputed in the matter published the direct charge against plaintiff. Defendant having failed to make such denial, it was wholly immaterial whether the innuendoes in the complaint remained or not. The answer fastened the article upon the plaintiff, and obviated the necessity of any proof being offered connecting him with it, and severing him from, any class. Section 3246 of the Compiled Laws provides that in an action of this character “ it is sufficient to state generally that the article complained of was published concerning the plaintiff, and if such allegation be controverted the plaintiff must establish on trial that it was so published or spoken.”

Of course, to be actionable, the defamatory article must refer to some ascertained or ascertainable person, and no innuendo can make the words defamatory unless they reflect upon some individual, as such, or a class, in certain instances. Where the words used seem to apply only to a class of individuals, and not to be specially defamatory of any particular member of that class, still the action can be maintained by any individual of that class who can satisfy the jury that the words referred especially to himself. If the publication had charged that the people of Tooele county were guilty of the reprehensible — not to say criminal — conduct charged to the Fenstermaker family, •the class so charged would be so extensive, the impossibility of fixing individual responsibility so apparent, that the court would pronounce the article not actionable; but where the words, by any reasonable application, impute a charge to several individuals, under some general description or general name, either one coming within such description may successfully maintain an action, if the jury determine that the words have a personal application to the person bringing suit. Ryckman v. Delevan, 25 Wend. 186; Ellis v. Kimball, 16 Pick. 132; Smart v. Blanchard, 42 N. H. 137; Dwyer v. Journal Co., 11 Daly, 250. Plaintiff also alleged that he was the head of the Fenstermaker family. This was not denied. We think the publication concerned such a class that any member thereof could maintain an action, on the principles laid down; and in this case the plaintiff having averred that he was the head of this class, and that the publication was of and concerning him, no proof in support of these allegations was necessary, under the admissions in the answer.

Appellant assigns as error the action of the court in permitting defendant to offer evidence tending to prove the truth of the charge contained in the publication, and the refusal of the court to give plaintiff’s requests upon the question of justification. This presents the question, does the amended answer constitute a proper plea of justification? At common law, under the plea of general issue, in this class of cases, the defendant could give evidence tending to prove the. extrinsic facts stated in the inducement, the publication of the alledged defamatory matter, the truth of the colloquium, or the application of* the words to plaintiff, as well as certain other things, but evidence in support of the truth of the charge could only be given under a plea of justification. But interposition of this plea was attended with great danger to defendant, for the attempt to prove the truth of a libel was regarded as the reiteration of the charge, and conclusive evidence of malice, and no evidence in mitigation could be received. If defendant failed to establish the truth of the charge, the damages were aggravated. If he desired to mitigate, he was compelled to admit the truth of the charge, and could offer no evidence dehors it. Under the plea of mitigation, he cpuld only introduce evidence tending to show that he had reason to believe the charge true when made.

Our Code has removed the perils attending these pleas, and has established a more liberal rule. Á defendant may deny generally or specifically the material allegations of the complaint to be by him controverted, and simultaneously plead the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and, whether he prove the justification or not,, he may give in evidence the mitigating circumstance. Under this provision, defendant can plead both justification and mitigation, or either; and, while the Code seems to contemplate that each plea should be separately stated, we are not prepared to say that they may not be joined, if the answer clearly indicates that the facts and circumstances so pleaded are tendered both by way of justification and in mitigation. The adoption of the Code, however, does not abrogate the rule that justification must be specially pleaded, and the particular facts averring the truth of the imputation, whether it be general or special,' must be clearly set forth. The justification must fully meet the charge, aver the facts showing it to be true, and present them in a traversable form. It must also meet the points in the sense imputed to them in the innuendo. Wachter v. Quenzer, 29 N. Y. 547; Bush v. Prosser, 11 N. Y. 347; Willover v. Hill, 72 N. Y. 36; Spooner v. Keeler, 51 N. Y. 527; Robinson v. Hatch, 55 How. Prac. 55; Newell, Defam. pp. 550, 653. It is clear that the averments in the answer reciting the finding of the child, her statements to Murdock, etc., utterly fail as a plea of justification. They nowhere meet the charge imputed to plaintiff.

Is it a sufficient plea of justification to allege that the charge and supposed defamatory words are true? Appellant insists that "this is not sufficient, because it fails to state the facts issuably. Eespondent contends that the charge is specific, and therefore, the general averment of its truth satisfies the rule. We have experienced considerable difficulty in answering this, objection, and have reached a conclusion only after a patient examination of many authorities. “Where the imputation complained of is a conclusion or inference from certain facts, the plea of justification must ayer the existence of a state of facts which will warrant the inference of the charge.” Newell, Defem. p. 652; Hathorn v. Spring Co., 44 Hun, 608; Tilson v. Clarke, 45 Barb. 178; Downey v. Dillon, 52 Ind. 442; Bissell v. Cornell, 24 Wend. 354; Thrall v. Smiley, 9 Cal. 529; Van Ness v. Hamilton, 19 Johns. 349. It is true the plea ought to be certain to a common intent, at least, and direct and positive in the facts set forth; but we think there is a difference between the charge ipiputed in the article complained of,, where specific acts are alleged, and a case in which a person is charged, for instance, with being a swindler or common cheat. In such case the plea of justification should state specifically the facts constituting the offense, and the instances when such person was guilty of swindling, together with the animo furandi. Is the charge in the alleged libelous article general? If the publication be construed as charging plaintiff with the statutory crime of abandonment and neglect of children, as alleged in plaintiff’s complaint, then the imputation would be general.

Without taking the trouble to examine in detail this question, we are clear that such crime is not charged. When the imputation is a charge of some specific act or acts, it is sufficient if the plea allege, in legal language, that the charge is true. The gist of the imputation in the article complained of, construed in the light of the admissions in the answer, is that plaintiff, tiring of the little girl, turned her out into the desert, under such circumstances and with such commands as would result in her death. The article further charges that plaintiff treated her brutally, and planned that she might starve to death. It is clear that these latter charges are general, and unless ■ so inseparably connected with preceding specific acts, particularly described and so unmistakably interpreted by them as to relieve them of generality and stamp them with definiteness, the answer could not plead a justification. We think these charges, viz., of brutality, and planning for the death of the little girl, though general and conclusions, are substantially a reiteration of the specific charges previously made in the article complained of. It is to be noted, too, that the plaintiff never demurred or interposed any motion with reference to these pleas interposed by defendant. Under all the circumstances, we are constrained to hold that the answer contained a plea of justification. Van Wyck v. Guthrie, 4 Duer, 47; Cooper v. Greeley, 1 Denio, 347; Weaver v. Lloyd, 4 Dowl. & R. 230; Kelly v. Taintor, 48 How. Prac. 270; Odgers, Sland. (Bigelow’s ed.) p. 485.

Appellant next contends that the court erred in permitting evidence to go to the jury in mitigation of dam-' ages — First, because, as claimed, there was no plea of justification, and for the further reason that the evidence tended to prove justification, and was therefore improper in mitigation; and, second, because the evidence so introduced was not pleaded either in justification or mitigation. Undoubtedly, it was formerly the rule that evidence in mitigation could only be given when the defendant admitted the charge to be false, and,' if any was offered which tended in any manner to prove the truth of the charge, it was inadmissable. Fero v. Ruscoe, 4 N. Y. 162; Cooper v. Barber, 24 Wend. 105; Petrie v. Rose, 5 Watts & S. 364. But, as stated above, our statute has abrogated this rule. Bush v. Prosser, 11 N. Y. 349; Thrall v. Smiley, 9 Cal. 529. Notwithstanding the statute, the facts relied on in mitigation must be specifically set forth in the answer. Willover v. Hill, supra; Halley v. Gregg (Iowa), 48 N. W. 974; Mielenz v. Quasdorf, 68 Iowa, 726, 28 N. W. 41. The provision that the answer may allege both the truth of the matter charged as defamatory and in mitigation does not mean that it may be alleged in general terms, without any statement of facts or particular circumstances. The requirement that the answer should set up the matter to be relied on was intended to prevent surprise, by informing the plaintiff of what he must expect to meet. Wachter v. Quenzer, supra; Spooner v. Keeler, 51 N. Y. 527.

P. H. Lannan, president and manager of the defendant, was called by it' as a witness, and testified that one Gilson furnished him the information upon which the article in question was based, and that he communicated it to the reporter of the paper, by whom the article was then written. The witness further stated that he believed the information to be true. Plaintiff objected to this evidence; alleging there was no proper plea of mitigation, and that the article did not purport to be made on the statement of another. We think both objections were well taken. Under the plea of justification, it could not be received, as it was hearsay; but it would be competent in mitigation, if properly pleaded. The mitigating circumstances particularized in the answer are that the girl, Caroline Hansen, was found by one Murdock, etc., to whom she made certain statements. There is no averment in the answer of any communication to defendant of these circumstances, either by Caroline Hansen, Murdock, or Gilson. In actions of this character the defendant may set forth in answer, and prove on trial, facts and circumstances tending to establish the truth of the defamatory matter, by way of mitigating, with a view to disprove malice; but, to be available to him in mitigation, it must be made to appear that he knew or had information of these facts or circumstances when the publication was made, and that he proceeded under the Iona fide belief of the truth of the matter so published; and such facts and circumstances must be specifically alleged in the answer. 3 Suth. Dam. p. 630; Hatfield v. Lasher, 57 How. Prac. 260; Dolevin v. Wilder, 7 Rob. (N. Y.) 319; Gorton v. Keeler, 51 Barb. 475; Willover v. Hill, supra.

In order to make the evidence of this witness competent, the answer must allege that, prior to the publication, defendant received the information contained in the article, and from such sources as induced an honest belief in its truth. Plaintiff is entitled to know the character of the proof to be offered, either in justification or in mitigation,, and the answer must specifically point it out. This testimony was also incompetent because the article did not state the sources of information. The rule is that evidence to show that defendant did not originate the libel is inadmissible in mitigation of damages, and, in contemplation of law, the repeater of a libel is equally culpable as the author. But to this rule there is -an exception. c'If defendant, in repeating the story as it reached him, gives it. as hearsay, and states, the sources of -his information, then, but only then, is the fact that he did not originate the falsehood, but has only repeated it, allowed to tell in his favor, as tending to prove that he bore the plaintiff no malice. When the.libel does not on its face purport to have been derived from some other source, but is stated as derived from the writer’s own knowledge, evidence' is inadmissible to show that it was communicated to defendant, or copied from some other paper.” Odgers, Sland. p. 302; Newell, Defam. 874; Peterson v. Morgan, 116 Mass. 350; Talbutt v. Clark, 2 Moody & R. 312; Marker v. Dunn, 68 Iowa, 720, 28 N. W. 38; Morey v. Association (Sup.), 1 N. Y. Supp. 475; Huffer v. Miller (Md.), 22 Atl. 205.

It is also insisted that the court erred in admitting the testimony of Gilson, Murdock, and "Wilder. Their testimony was, substantially, that after the little girl was found in the desert she told them that they (referring to plaintiff and his family) had told her to leave and never come back, and not go near sheep herders, or they would kill her. Gilson also testified to having informed the manager of defendant of these conversations, and the physical condition of the little girl when found. If this evidence was admitted in support of the plea of justification, it was error. Evidence of statements made by Caroline Hansen, not in the presence of plaintiff, was hearsay. Her statements to this witness were a narration of past events, and therefore not a part of the res gestee. The test to determine whether this testimony was hearsay or not is: If plaintiff was being prosecuted for turning the girl into the desert, and forbidding her to seek relief from shepherds, could her statements made to third parties, not in plaintiff’s presence, be given in evidence? It is so elementary as not to need citation that even the girl could not.testify, in such a case, as to what she told these witnesses. Neither at the time this evidence was admitted, nor in the court’s charge, was it limited to the plea of mitigation. But, conceding that it was received solely to disprove malice, we think, under the pleadings, its admission was erroneous, because, as above stated, the answer failed to recite the facts and circumstances concerning which this witness testified, and the. communication by them to defendant. Such testimony was calculated to' be highly prejudicial to plaintiff, and was only competent under a proper plea of mitigation, when coupled with cautionary instructions from the court that it was received only to disprove malice, but not in support of -the plea of justification. If defendant had averred in its answer that it had been informed by Gilson that he had met the girl, and had set out the conversation ensuing between them, and Gilson’s statement to Lannan, and all the circumstance's which induced in the latter’s mind, a belief in the truth of the charge, and that he believed the statements to be true, Gilson’s testimony would have been competent under the plea of mitigation.

Plaintiff further claims that the court erred in permitting counsel to cross-examine Mrs. Fenstermaker in rebuttal. She was called by plaintiff, and testified that, while Caroline Hansen resided at .her husband’s home, she was in the habit of running away, and that upon the occasion mentioned in the publication, without cause, she clandestinely departed, and, though diligent search was made, could not be found. She also testified to her affectionate regard for the child. On cross-examination defendant’s counsel was permitted to question her at great length concerning other children whom she had taken to rear, with á view of showing that she had treated them with great cruelty. Among the questions asked were these: “ Q. In June, 1891, — the same year that Caroline Hansen ran away, — you were arrested for abusing Ida Crockett, were yon not? Q. Weren’t you taken before Justice Williams, at Grantsville, and tried upon the charge of abusing the girl Ethel Crockett? Q. Did you whip this girl, Caroline Hansen? Q. Did you whip her with sticks of wood? Q. Did you whip her with a stove lifter? Q. In presence of Mary Grice, upon her return [speaking of Ethel Crockett], didn’t you hit her in the head with a stick of' wood? ”

In- answer to plaintiff’s objections to these questions, and a great many others of like character (the objections being based upon the grounds of irrelevancy, immateriality, and that they were collateral to the issues involved), defendant’s counsel stated that they desired to show “ that plaintiff’s wife was constently obtaining orphan children, and that she abused them and drove them away and that such cross-examination was proper to show her treatment of children, — her general character.” The issue presented by the pleadings was as to' whether Amos Fenster-maker had driven Caroline Hansen from home into the •desert and planned for her death. If plaintiff had been on trial for inhuman treatnent of Caroline Hansen, it would not have been competent to prove that at different times his conduct toward some other child had been cruel. If proof of plaintiff’s cruel treatment of others would not be admissble, upon what theory can it be claimed this testimony was relevant or proper? Mrs. Fenstermaker was not plaintiff. Her conduct towards Caroline Hansen was ioreign to the issues of the case, except where it is shown to be so closely connected with the husband, by reason of proximity, directions, etc., as to charge him with being a participant. These questions called for answers upon immaterial and collateral matters. It is true that whatever ¡shows the bias or prejudice of witnesses concerning the matter on trial, or tends to qualify or explain such testimony given in chief, is not - collateral, but everything •else not material is collateral. ' Her treatment of other children on other occasions would not tend in the remotest •degree to prove or dispove the truth of the charge, hence would be immaterial, and upon a collateral matter.

The test of whether the fact inquired of in cross-examination is collateral is this: “Would the party be entitled to prove it as a part of his case generally to establish his plea?” Hildeburn v. Curran, 65 Pa. St. 63; Stokes v. People, 53 N. Y. 175; Attorney General v. Hitchcock, 1 Exch. 91; Thayer, Cas. Ev. 1217. To prove that she was arraigned before the magistrate, charged with ill treatment of Ethel Crockett, offers no explanation of her' "husband’s treatment of Caroline Hansen. There is only-one ground upon which this cross-examination is permissible, — for the purpose of testing the recollection and .credibility of the witness. Mr. Thompson states the rule that “such inquiry may be permitted by the court, in the exercise of a sound discretion.” 1 Thomp. Trials, § 461; Spenceley v. De Willott, 7 East, 108; Thayer, Cas. Ev. 1186. He also states that all courts are agreed that a witness cannot be cross-examined as to independent, collateral facts, for the mere purpose of impeaching him by contradiction. “For the purpose of enabling the jury to weigh the testimony of a witness in a proper light, they must know somewhat of his opportunities, and are entitled to know something of his moral worth, as evidenced by his conduct; and, to this end, courts should permit a reasonable cross-examination of witnesses.” Whether there was an abuse of this discretion is not necessary to determine, but we are satisfied the testimony was improperly admitted, when placed upon the ground stated by counsel. “The general reputation of Mrs. Fenstermaker for treatment of children” was not in issue; and, if it had been, there is no principle of law which permits extraneous, specific charges to be inquired into for the purpose of establishing general reputation. Haddock v. Naughton (Sup.), 26 N. Y. Supp. 455.

The record seems to indicate that these questions were put merely with a view to impeaching the witness by' contradiction. Where it becomes*apparent to the court that this is the obvious purpose of counsel, further cross-examination of the same character ought to be denied; and if the questions are of such a nature, and are pregnant with meaning, and suggestive of inferences which would be prejudicial, such cross-examination might be so continued as to render its admission error. The purpose for which these questions were propounded seems clear from subsequent proceedings. In surrebuttal, defendant called Ethel Crockett, Justice Williams, and other witnesses, to contradict Mrs. Fenstermaker. They were permitted, over plaintiff’s objection, to testify, and denied the answers of plaintiff’s wife above stated, and others of like import propounded to ber. The authorities are unanimous in holding this to be error.. In cross-examining-upon immaterial and collateral matters, the cross-examining-party makes the witness his own, in respect of such matters as contradict the testimony given. Leavitt v. Stansell, 44 Mich. 422, 6 N. W. 855; People v. McKellar, 53 Cal. 65. This court, in People v. Hite, 8 Utah, 475, 33 Pac. 254, said: “If a witness has been charged with a crime, or arrested or indicted for it, he may be asked about it on cross-examination; and, when such facts are irrelevant to the matter in issue, the party putting the questions is bound by the answers of the witnesses. He cannot call other witnesses, and prove that the answers are false.”

Baron Alderson, in a leading case, says: . “I am not aware that you can with propriety permit a witness to be examined first, and contradicted afterwards, on a point which is merely and purely collateral; as, for instance, as to his personal character, and as to ‘his having committed any particular act. The inadmissibility of such a contradiction depends upon another principle altogether. * *

* The reason why the party is obliged to take the answer of a witness is that, if he were permitted to go into it, it is only justice to allow the witness to call other evidence in support of the testimony he has given, and, ' as those witnesses might be cross-examined as to their conduct, such a course would be productive of endless collateral issues. * * * Then, in the next place, in my opinion, when the question is. not relevant, strictly speaking, to the issue, but tending to contradict the witnesses, his answer must be taken, — although- it tends to show that he is, in that particular instance, speaking falsely, and although it is not altogether immaterial to the matter in issue, — for the sake of general public convenience; for great inconvenience would follow from a continual course of these sorts of cross-examinations -which would be let in in the case of a witness being called for the purpose of contradiction. Attorney General v. Hitchcock, supra. While, perhaps, the same results might be reached by the court or jury if improper evidence were admitted, or proper evidence excluded, still a strict adherence to well-established rules of evidence is essential, or our courts and systems of jurisprudence will be regarded as -delusions and snares. “The rules of evidence are founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of human life.” And any departure from them can only be attended by evils immeasurable in th'eir consequences.

Appellant next complains that the court erred in announcing the rule of damages. The jury were instructed that “ the liberty of the press does not include immunity for publishing false and defamatory statements of any persons, and the fact, if it be a fact,, shown by the evidence, that the defendant in a suit for libel published a libelous article in good faith, as a matter of news, without actual malice, against' the plaintiff, is no defense to the action; but such fact should be considered in mitigation of damages, and it, with other mitigating circumstances, may be sufficient to reduce the damages to a mere minimum.” The last part of this instruction plaintifE contends is erroneous, especially when construed with the further statement by the court that “it is not the policy and spirit of the law to unnecessarily or arbitrarily abridge the freedom of the press, but the law recognizes the press as a potent factor in society for good ; and it is proper for you to bear this in mind, in determining the question of damages in this case, if you find in favor of the plaintiff.” The court gave no rule by which to determine the measure of damages, although plaintiff submitted a request embodying the proper rule for the guidance of the jury.

We do not think these instructions announce the correct rule of damages. Plaintiff did not seek punitive damages, but relied upon implied malice only. While it is clear from the evidence that plaintiff was not entitled to exemplary damages, it is equally clear that the jury should have been instructed that, if they found for the plaintiff, then he was entitled to actual and substantial damages. The charge of the court was equivalent to a declaration that if the article was published in good faith,' without actual malice, no matter what injury plaintiff had suffered, and no matter what damages the jury might find he had sustained, the law would uphold them in returning for the least possible amount.. This cannot be the law. If the publication was false, malice is presumed, and plaintiff was entitled to actual damages resulting therefrom, regardless of the motives influencing the publication; and the instructions to the jury that the press is recognized hy the law as a potent factor in society for good, and that it was proper for the jury to bear that in mind in determining the question of damages, was calculated to mislead the jury. The jury might be easily led to believe from this that newspapers possessed immunity for defamatory publications, because they were potential factors in society for good and that the good accomplished should be regarded as an adequate compensation for wrongs done to individuals. The law accords the press no greater recognition as a factor in the growth of civilization than is accorded many other things. The law, as a judicial system, does not recognize the press either as a puerile or a powerful factor in society. It accepts it ás a part of our civilization, and treats it as it treats other features — abstract and concrete — as they come within its jurisdiction.

Appellant insists that, inasmuch as - exemplary damages were not demanded, no evidence in mitigation was admissible, because, if plaintiff was entitled to recover, the law must clearly award him actual damages. .It is a rule frequently announced that such evidence is only receivable to reduce exemplary damages, but m slander and libel cases the authorities seem to hold that evidence in mitigation is always permissible, when properly pleaded. To the writer of this opinion this rule seems illogical. When a plaintiff seeks only actual damages for a defamatory publication, and offers no eyidence whatever tending to prove express malice, why should the damages actually sustained be reduced by evidence in mitigation? If a wrong is done, and -the aggrieved party seeks compensation only for that wrong, upon what principle of justice ought he to be deprived of a part of the monetary compensation because the party committing the wrong acted in good faith? If evidence to aggravate the damages can be offered by plaintiff, and he refrains from offering such evidence, and contents himself with a demand for actual damages, there can be no good reason, it would seem, why the defendant can reduce those damages by offering evidence of his good faith. However, the rule seems to be firmly established as above stated, and we do not feel warranted in-asserting a different one.'

The court further instructed the jury that “the general character of the plaintiff's family at the time the alleged libel Avas published is at issue, and it is proper for it to be considered by the jury, because, such character is the foundation of the plaintiff's claim for damages." . Defendant offered no direct evidence connecting plaintiff with any cruel treatment of Caroline Hansen, and in no manner attempted to impeach his character. So far as the record discloses, he possesses an unblemished reputation. Defendant offered evidence tending to prove that some of his relatives and members of his household had unsavory reputations. . We do not think their reputations were involved in this case. We do not think that because some members of a family lead improper lives, and are held in ill-repute by the .public, that one who, by an honest and upright life, has established a spotless reputation, should suffer because of others’misdeeds, .and when slandered or libeled, and redress is sought, be met at the threshold of the trial with the sins of his family, and be told that before he can prevail - his righteousness must cover their enormities. That seems to be carrying the doctrine of vicarious atonement too far. The Mosaic law visited the sins of the father upon the children to the third and fourth generation; but this goes further, and, in a measure, attaches responsibility to a person for the misdeeds of his entire family, be it large or small. We think this instruction was error. The plaintiff’s reputation was in issue, not the family’s. If he was libeled, he was entitled to recover, and their vices were not to be visited upon his head.

Numerous other errors are assigned, but we content ourselves with reference to the foregoing. The judgment of the lower court is reversed, and the case remanded, with instructions to grant a new trial.

MERRITT, C. J.:

I concur in the judgment of reversal in this case.