Louisville Press Co. v. Tennelly
49 S.W. 15
Ky. Ct. App.
1899
Check Treatment
JUDGE GUFFY

delivered the opinion op the court.

This was an action for libel, brought against appellant, who was the publisher of a newspaper, and published in its said paper the following: “FOUND AT LAST. The search for the meanest man on earth has been busily prosecuted for years, but I claim the proud distinction of having located him. He lives in Owensboro, but, strange to say, his fame has heretofore been confined to that town and immediate vicinity. He is an undertaker in the Daviess county capital, but, in addition to his undertaking establishment, he conducts a note-shaving business. In this latter respect he is known as the man who can collect any sort of a note, and also known as a business man who is inexorable in observing the cash-basis plan. Something over a year ago a poor man brought a dead daughter to *369the undertaking establishment, to have thé body embalmed; intending to have the funeral the next day. The morrow arrived, but the bereaved father had no money, and the ■flint-hearted undertaker refused to give up the body, unless the expense of embalming was paid. The father went away, and has never been heard of since. In the meantime the undertaker has kept the body of the child in a back room, and uses it as an advertisement to demonstrate the superiority of his embalming fluid.” This action was instituted in the Daviess circuit court, and the appellant was summoned in Jefferson county, which it appears was the county of appellant’s residence, and its place of business, where it issued and printed the aforesaid newspaper. A trial resulted in a verdict and judgment in favor of the appellee for $500, and, appellant’s motion for a new trial having been overruled, it has appealed to this court.

A reversal is asked on several grounds, but the principal ground relied on for reversal seems to be error of the court in overruling appellant’s demurrer to the jurisdiction of the court. In other words it is insisted for appellant that the circuit court of Daviess county did not havo jurisdiction of the appellant; hence the demurrer to the jurisdiction, it is argued, should have been sustained. The correctness of the judgment of the circuit court depends upon the construction of section 74 of the Code of Practice. It will be seen that the Code of Practice, from section 62 to section 8.0, specifies or provides in wha,t county the various kinds of actions shall be brought. Section 74 of the Code reads as follows: “Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a defendant residing in this State, must be brought in the county in which *370tlie defendant resides, or in which the injury is done.” We are not aware that this section has ever been specially called in question, or construed by this court; but it seems that the bench and the bar have generally construed or understood the section to mean that the court of any county in which the paper containing the libelous article was circulated had jurisdiction to hear and determine an action for damages, — in other words, that the plaintiff; was entitled to sue in any county in which the paper contain* ing the libelous article was circulated, — and we have not been referred to any authority in conflict with such a construction of the Code supra. It may be true that the cause of action accrued to the plaintiff in Jefferson county so soon ás the Commercial was printed, and placed in the mails in Jefferson county, but that fact does not necessarily preclude the plaintiff from maintaining his action in any county in which, the injury to him was inflicted. It seems to us that the true construction and meaning of section 74 is that the plaintiff may institute his action in the county of defendant’s residence, or in any county where he is injured by the publication of the libel. It will be seen from an examination of the sections preceding section 74 that there is no provision as to the venue of an action for an injury to the character of the plaintiff. It therefore follows that section 74 fixes t'he county or ■ counties in which an action for the injury to the character of the plaintiff may be brought; and it seems clear to us that the action may be brought, at the option of the plaintiff, in the county of defendant’s residence, or in any county in which the injury to his character has been inflicted. It results from the foregoing that the court properly overruled the special demurrer of the defendant to the jurisdiction of thei Daviess Circuit Court.

*371It is alleged in the petition that the publication was meant to apply to, and did refer .to, the plaintiff. It is provided in section 123 of the Code that “in an action foq libel or slander it is not necessary to state any extrinsic facts for the purpose of showing the application to the plaintiff of the alleged defamatory matter.” It follows, therefore, that, the general demurrer was properly overruled.

Complaint is made by the appellant in respect to the orders and rulings of the court on the various motions in regard to striking out portions of the pleadings, and as to the specifications required; but we are of the opinion that no error occurred in respect thereto prejudicial to the substantial rights of the appellant.

Numerous exceptions and objections are urged against the admission and rejection of evidence on behalf of the appellant, as well as appellee, which objections and exceptions are too numerous to mention; but we have carefully considered the same, and are of the opinion that no error prejudicial to the substantial rights of the appellant was committed in respect either to the admission or rejection of testimony.

Appellant insists that the court erred in giving the various instructions given, and also erred in refusing the instructions offered by appellant. The instructions given by the court are as follows: “(1) The court instructs the. jury that they should find for the plaintiff, unless they believe from the evidence that all of the charges contained in the publication complained of are, in fact or in substance, proven to be true, as published. (2) If the jury find for the plaintiff, the measure of such finding should be such a sum as they believe from the evidence will reasonably compensate the plaintiff for mental distress, loss or *372injury to his character, if any proven, loss to his business, if any proven, occasioned by the publication complained of; and if the jury believe from the evidence that said publication was induced by actual malice on the part of the defendant toward the plaintiff, or a reckless disregard of the plaintiff’s rights, they maj-, in their sound discretion, find, in ad dition to compensatory damages, such damages by way of punishment as they think proper, in all not exceeding the amount sued for, $50,000. (3) The jury are further instructed that, if they should find damages to plaintiff’s business they should only allow such as the evidence shows to be the direct or proximate result of the publication complained of. (4) If the jury believe from the evidence that the whole publication complained of by the plaintiff in his petition is proven, in terms or in substance, to have been true, they should find for the defendant. (5) If, however, the jury believe from the evidence that all the facts of the alleged libel are not proven to be true, but that some part of them are so proved, in fact or in substance, they should consider such as are proven in mitigation of damages, if they find for the plaintiff. (6) By ‘compensatory damages’ are meant such an amount in damages' as will be to a complainant an adequate equivalent of the loss or injury sustained by him in a given case; in other words* as will pay him for his loss. By ‘punitive damages’ are meant such damages as are given for the punishment of a party for a wrong or injury done or inflicted wrongfully upon another. By ‘actual malice’ is meant actual ill will, hatred, etc.” It seems to us that the instructions given contained a full and fair statement of the law applicable to the case on trial. Some criticism is made by the appellant in respect to the “etc.” in defining malice. It may be that the expression “etc.” should not have been *373used in the instruction; but malice is so well understood by everybody that that addition to the other definition given to “malice” could not possibly have misled the jury or redounded to the injury of appellant.

The appellant offered eleven different instructions, all of which were refused by the court, and their great length renders it inexpedient to copy the same; but we are of the opinion that the court did not err in refusing the instructions offered by appellant.

It is said in Staub v. Van Benthuysen, 36 La. Ann. 469. that: “Every one who prints or publishes a libel may be sued by the party defamed, and to such action it is no defense that another wrote it, or that it was printed or. published by the desire or procurement of another. Every sale or delivery of a written or printed copy of a libel is a fresh publication, and every person who sells a written or printed copy of it may be sued therefor; and the onus of proving that he was ignorant of its contents is on the defendant. ... In giving currency to slanderous or libelous reports and publications, the party is as much responsible criminally and civilly as if he had written the defamation. . . The word ‘malice,’ when used in a civil or criminal pleading in cases of this kind, does not imply, much less mean, ill will or personal malice. Its legal sense is the wrongful act done without just cause or excuse. Malice is the imputation of the law from the false and injurious nature of the charge, and differs from actual malice or ill will, which latter may be proved to enhance the damages. The legal malice need not be proven. The law imputes it to the publisher of the libel from the act of the publication. Any publication which is false and defamatory exposes the publisher to damages in favor of the party aggrieved, printed or written slander being justly *374considered more pernicious than verbal. The law holds the publisher responsible, as the instrument used for the dissemination of calumny whereby the character of any one may be blasted, or his business injured, or his social standing impaired. And it is not incumbent on the party assailed by falsehood and defamation to show malice against him on the part of the publisher, nor to prove that he has been injured by the publication.”

•In Swift v. Dickerman, 31 Conn., 285, it was held that evidence is admissible in the enhancement of damages that the plaintiff suffered great anxiety and distress of mind by reason of the slander.

In Newell on Defamation, etc., (page 864), it is said: “Where words are spoken of a person, in the way of his profession or trade, so as to be actionable in themselves, the plaintiff may allege and prove a general diminution of profits or decline of trade, without naming particular customers, or proving whether they have ceased to deal with him.”

In Mahoney v. Belford, 132 Mass., 393, it was held, in substance, that in an action of slander the mental suffering of the plaintiff constituted an element of damage.

In Lehrer v. Elmore, 18 Ky. L. R., 553, [37 S. W. 292], it was said: “The law allows the plaintiff damages, not only for tarnished reputation, but also for his injured feelings. ... So far as the plaintiff is concerned, the injury to him is the same, whether or not the defendant believed the report to be true. One definition given of ‘malice’ by Mr. Webster is, ‘A wanton disregard of the rights or safety of others.’ In 2 Bouvier, Law Diet, p. 92, note 4, in speaking of charges or doing of acts injurious to another without just cause, it is said: ‘This term, as applied to charges, does not necessarily mean that which *375must proceed from a spiteful, malignant, or revengeful disposition, but conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another.’ Judged in some cases, it seems not to require any intention in order to make an act malicious. . Where slander has been published, therefore, the proper question for the jury is not whether the intention of the publisher was to injure the plaintiff, but whether the tendency of the matter published was so injurious. It can make no difference whether or not defendant believed the libel to be true. The injury consisted in the publication, not in the intent of the publisher; nor as to his belief or disbelief of the accusation.”

It seems to us that the rule is well settled that the publication of a libel exposes the publisher, not only to compensatory damages for the loss of business, but also to a judgment for the mental suffering that the libel or slander inflicts upon the plaintiff, and if the publication is malicious, or made in reckless disregard of the rights of the plaintiff, the' defendant is also liable for punitive damages; and the instructions in this case go no further than to authorize the jury to find such damages, as hereinbefore indicated. The instructions offered by the defendant were in conflict with the principles announced herein, and were therefore properly refused. It may be remarked that it is evident from the verdict of the jury that no punitive damages were given.

It will be seen that the defendant admitted the publication of the article in question, and pleaded the truth of the same but it will be further seen from the testimony that defendant utterly failed to sustain the truth of the article in question; but it was permitted to, and did, introduce some proof tending to show that it, in good faith, believed *376the statements to be true when published, which testimony ought not to have been allowed for any purpose, if at all, except to rebut the legal implication of malice. It may be further remarked that there was no excuse shown for the publication, for the reason that it is not incumbent upon a newspaper to publish the misdoings of a private citizen; and the public good, as well as the usefulness of the press, imperatively demand that no publication injurious to a citizen should ever be made, unless the publisher knows beyond a reasonable doubt that the statements or .charges that it publishes are in fact true. It is a matter of public importance that all statements-printed and published in the press of the day should be entitled to full faith and credence, and no paper should publish' any matter calculated to injure the feelings, business, or standing of any citizen, unless the same be true; and the mere fact that such publisher may believe that the statements or charges made are true is no defense in law or morals.

Judgment affirmed, whole court sitting.