138 Ky. 637 | Ky. Ct. App. | 1910
Opinion op the Court by
-Affirming.
This is an appeal from a judgment entered in tlie court below upon a verdict in favor of appellee returned by the jury in an action for libel brought against it by appellant.
The alleged libel which appeared in appellee’s daily newspaper, the Lexington Herald, Saturday, May 2, 1909, was as follows: Oscar Morgan, a white man, and four negroes, were arrested at Mays Lick last night on a charge of being implicated in the fires -that have occurred at that place. Other arrests will probably be made. Soldiers were in Flemingsburg last night. ’ ’ The information contained in the above publication was received by appellee in the usual course of business from its Mason county correspondent, who regularly reported to it news of interest from that county. On Sunday, May 3,1909, the day following the publication in question,- the Lexington Herald published a retraction thereof in the following communication, also received from its Mason county correspondent: Ewing, Ky., May 2d, 1909. To the Editor of the Herald: My report of Oscar’s Morgan’s arrest at Mays Lick was.from the information
Appellee’s answer contained a traverse of the averments of the petition as to the damages claimed by appellant, specifically denying that he had been injured in his reputation or feelings by the publication complained of. In a second paragraph appellee set out the alleged libelous publication, the retraction contained in the next issue of its newspaper, and the circumstances under which both were published, in substance averring that the publication complained of was made by it without malice, in the usual course of business as a newspaper, relying upon the care, prudence, and honesty of the correspondent furnishing the communication and believing it to be true; that the information upon which the correspondent acted in sending it was received by him from a reliable person, and that it was currently reported in the community where appellant lived that he was implicated in the burning of the tobacco barns and other buildings at or near Mays Lick; that, when the correspondent learned the falsity of the information and rumors connecting appellant with these burnings, he at once sent to appellee the retraction mentioned; and the latter caused it to be published in its newspaper on Sunday the day succeeding the issue in which the alleged libelous publication appeared, giving the retraction a conspicuous place in its columns; that the Sunday circulation of the newspaper was as large or larger than its circulation on other days; that the circulation of the published retraction was beneficial to appellant; and that he was not injured by the publication of the previous day.
It is also complained by appellant that counsel for appellee was permitted to ask him upon cross-examination if he had been arrested upon a charge other than the one charged in the publication, and that he was compelled to admit such arrest. As an original proposition such an inquiry of the appellant would have been incompetent, and he could not legally have been required.to answer it, but before he was asked the question by appellee’s counsel he had, in response to a question in chief from his own counsel as to
Appellant also complains that the court improperly instructed the jury. This complaint is likewise untenable. By the first instruction the jury were told, in substance, that, the publication complained of being admitted by the answer, they should find for appellant such a sum as they might believe from the evidence would reasonably compensate him for the mental distress and injury to his character, if any, of either, the evidence showed he had sustained by the publication in question; and if they believed from the evidence that the publication was induced by malice on the part of the appellee toward appellant, or in reckless disregard of the latter’s rights, they might in their discretion find, in addition to compensatory damages, punitive damages, in all not to exceed $5,000 but that, unless the jury believed from all the evidence appellant had been damaged as set out in the instruction, they should find for appellee. The second instruction, in substance, advised the jury that the retraction published by appellee and the evidence as to circum
The principal issue made by the answer was not that the appellant was guilty of the barn burnings im.puted to him by the publication, or that the rumors connecting him with those crimes justified the publication, but that in the estimation of his acquaintances his character was so injured before the publication that it did not damage him, and that this fact, together with the immediate publication of .the retraction, placed him in a much more favorable light before the public -than that in which he stood before the publication. The vital question in the case was whether appellant was damaged by the publication, and this court will not set aside the verdict of a properly instructed jury because it found that he was not damaged; especially is this true when it is reasonably apparent from the evidence as in this case that only nominal damages were recoverable.
The judgment is affirmed.