166 Ky. 423 | Ky. Ct. App. | 1915
Opinion op the Court by
Reversing.
In this action for damages for libel, plaintiff, John Randolph Reid, recovered of the defendant, Bell Nichols, a verdict and judgment for one cent and costs. • Reid appeals.
Briefly stated, the facts are these: One Marshall T. Finley, was found dead, and Bell Nichols, a reporter for the Paducah Evening Sun, wrote an article which was published in that paper on August 5th; 1913, which, in substance, charged plaintiff, John Randolph Reid, with the murder of Finley. Thereupon, Reid sued the Sun Publishing Company, the owner of the paper, for damages. The trial resulted in a verdict and judgment in his favor for one cent and costs. On appeal to this court the judgment was reversed and the cause remanded for a new trial, in an opinion which may be found under the title of Reid v. Sun Publishing Company, in 158 Ky., at page 727, and which sets out at length the libelous article corn-pained of. After the reversal plaintiff brought this action. Over the objection of plaintiff, the cases were tried together and heard by one jury. The trial resulted in a verdict and judgment'for $400.00 against the Sun Publishing Company and in the verdict and judgment against Nichols above indicated.
The first question presented is, did the trial court err in ordering the two cases to be tried together? Plaintiff insists that as the actions were separate, he had the right to have a separate trial as to each defendant. The rule seems to be well settled that where several actions are brought by one plaintiff against different defendants, or by different plaintiffs against one defendant, and the issues are the same in each action, the court may, in order to avoid unnecessary delay and expense, order them to be tried together. Whether the cases should be tried together is a matter in the discretion of the court, and such discretion will not be interfered with on appeal unless it is clearly made to appear that the discretion was abused. St. Louis, etc. R. Co. v. Harden, 83 Ark., 255;
Another ground urged for reversal is the alleged •error of the court .in striking from plaintiff’s reply an allegation to the effect that defendant failed to publish a retraction within the time limit fixed by the statute, and in refusing to give an instruction based upon such allegartion. The statute (2438b Kentucky Statutes 1915) prescribing the effect of a retraction in case of libel, is as .follows:
‘‘1. Effect of retraction. That in any civil action for 'libel, charging the publication of an erroneous statement, alleged to be libelous, it shall be relevant and competent evidence for either party to prove the fact that the plaintiff requested retraction or omitted to request retraction.
“The defendant may also allege and give proof that the matter alleged to have been published, and to be libelous, was published without malice, and that the defendant .in the next regular issue of the newspaper or publication, .after receiving demand in writing or within seven days if no such demand is made to correct and to retract .said statement, or in the next regular issuie of the newspaper or publication did publish a sufficient correction, retraction, explanation or rectification, as conspicuously and publicly as that in which said alleged libelpus stateffient .was published, in the same type and in the same place in at least two successive issues of the same periodical publication accompanied by editorials in which the alleged slander.is specifically repudiated.
“2. Eepealing clause. All acts or parts of acts in conflict herewith are hereby repealed.”
It will be observed that the statute, after providing that either party may prove the fact that the plaintiff requested retraction or omitted to request retraction, further provides that the defendant may also allege and give proof that the matter alleged to have been published, and to be libelous, was published without malice, and that he published a correction, retraction, explanation or rectification in the manner provided by the statute. In other words, the statute confers upon the defendant the right to show the retraction for the purpose of defeating punitive damages. It does not confer upon the plaintiff the right to show a failure to retract for the purpose of showing malice or aggravating such damages, where, as in this instance, no retraction was demanded by plaintiff. The court, therefore, did not err in striking from plaintiff’s reply the allegation referred to, or in refusing to give an instruction based on such allegation.
Omitting the libelous article, which is too long to be published, the court instructed the jury as follows:
“Instruction No. 1. It is admitted by the pleadings and is the undisputed evidence in this case that the defendant, Bell Nichols, on the 5th day of August, 1913, wrote and procured to be printed and published in the ‘Paducah Evening Sun’ the following article, to-wit: (Here follows the libelous article).
“And the court now instructs you that the law presumes that defendant wrote and procured said article to be published maliciously, or with malice, and the court further instructs you to find for the plaintiff such sum in damages as you may believe, from the evidence, will reasonably compensate him for injury to his character, if any, caused by the writing and publishing of' said article by defendant; or humiliation and mortification to his feelings-, if any of either, so caused; for mental anguish, if-any, so caused; but not exceeding the amount claimed in the petition, to-wit, ten thousand dollars ($10,000.00), and you will at least find for plaintiff nominal damages.
“Instruction No. 2. The court further instructs you that if you shall believe from the evidence, that at, or previous to, the time said article was written and caused to be published of and concerning plaintiff by the defendant Nichols, in the ‘Paducah Evening Sun,’ it was circulated and rumored generally in McCracken County, and in the city of Paducah, and in the vicinity of Marshall T. Finley’s home, that said Finley had been murdered, and that some of his near relatives had murdered him, and that plaintiff was the relative who was accused of murdering him, then you may consider these facts in mitigation of damages, if any, you find for the plaintiff.
“Instruction No. 3. The court further instructs you that if you shall believe from the evidence that the defendant Nichols, at the time said article was written by him and caused to be published in ‘The Paducah Evening Sun,’ had received such information as would lead a reasonably prudent person to believe, and the defendant did believe, that the plaintiff was the near relative who was accused of murdering Marshall T. Finley, and wrote and caused to be published said article as a matter of news, in good faith, and without any ‘actual malice’ towards plaintiff, and did not in a wanton and reckless disregard of plaintiff’s right publish said article of and concerning the plaintiff, then you cannot find for the plaintiff punitive damages as mentioned to you in instruction No. 1, but you may find for him compensatory damages as herein instructed. ’ ’
"While, under the facts in the particular cases, this court has apparently approved instructions imposing upon the plaintiff the burden of proving malice in cases of words libelous per se — Morgan v. Lexington Herald Co., 138 Ky., 637; 128 S. W., 1064 — the settled rule in this State is that where the publication is libelous per se, the law presumes malice and authorizes a recovery of punitive damages. Tenner v. Stevenson, 138 Ky., 578; 30 L. R. A. (N. S.), 200; Pennsylvania Iron Works Co. v.
Judgment reversed and cause remanded for a new trial consistent with this opinion.