94 F. 762 | 8th Cir. | 1899
after stating the facts as above, delivered the opinion of the court.
“A good name is rather to- be chosen than great riches, and loving favor rather than silver and gold.” The respect and esteem of his fellows are among the highest rewards of a well-spent life vouchsafed to man in this existence. The hope of them is the inspiration of Ms youth, and their possession the solace of Ms later years. A man of affairs, a business man, who, has been seen and known of Ms fellowmen in the active pursuits of life for many years, and who has developed a good character a,nd an unblemished reputation, has secured a possession more useful and more valuable than lands, or houses, or silver, or gold. Taxation may confiscate bis lands; fire may burn his houses; thieves may steal his money; but his good name,
But may exemplary or punitive damages be recovered for a libelous publication, without proof of ill will, hatred, or an intent on the part of the libeler to injure his victim? Punitive damages are given as an example to the public, to deter others from committing a like offense, and as a punishment to the wrongdoer. They are never allowable where the defendant, after due investigation, in good faith, with reasonable cause to believe the charge to be true, has published it from a proper motive, in the honest belief that it is true. Are there, however, no circumstances under which the jury may award exemplary damages, in the absence of proof of actual evil intent or bad motive on the part of the defendant? May the libeler shut his eyes, and blindly publish heinous charges against men and women of spotless character and unsullied reputation, and still escape liability for every thing except the actual damages which they can prove, because he had no intention to injure them, no care about them, but simply sought to make money from the sale of the racy story? If he may not, wThere is the dividing line, and who shall determine in each cast*, the court or the jury, whether or not exemplary damages shall be allowed? It is not every degree of negligence, it is not a mere mistake or inadvertence occurring in the course of a reasonable investigation, that will lay the foundation for exemplary damages for the publication of a libel; and yet every man is bound to use his own property and pursue, his own vocation in such a way that he may not unlawfully injure the property or violate the rights of Ms neighbors. Not only this, but when his property or his vocation borders upon or impinges upon the property or rights of his fellow men, he is bound to exercise ordinary care to ascertain the extent of that property and of those rights, and to abstain from unnecessarily injuring them.
In Day v. Woodworth, 13 How. 363, 371, the supreme court declared that exemplary damages might be allowed by the jury in “actions of trespass, where the injury had been wanton or malicious, or gross and outrageous.”
In Railroad Co. v. Quigley, 21 How. 202, 214, an action of libel, that court held that:
“Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations.”
In Railway Co. v. Arms, 91 U. S. 489, 493, an action of negligence, Mr. Justice Davis, in delivering the opinion of the court, said:
“Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go further, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case, the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.” '
In Bennett v. Salisbury, 45 U. S. App. 636, 639, 24 C. C. A. 329, 331, and 78 Fed. 769, 771, the circuit court of appeals of the Second circuit held that exemplary damages might be recovered in an action of libel, although the defendant had no ill will or intent to injure the plaintiff, if he was guilty of “such wanton disregard of, or such reckless indifference to, the rights of others as was equivalent to the intentional violation of such rights.”
Through all these and many other authorities the thought runs that a reckless disregard of the rights and feelings of others may be equivalent to an intentional violation of them, and that, where such recklessness exists, punitive damages may be allowed, in the discretion of the jury. A moment’s consideration will show, however, that wherever the violation of the rights of one who is slandered or libeled results from a reckless disregard of those rights by the libeler, that disregard is the equivalent of an intentional violation of them. Every man is presumed to intend the natural and probable effects of his acts and omissions. The natural and probable effect of the reckless
Turn it as you will, the reason of the rule and the great weight of authority upon the subject lead alike to this conclusion: Exemplary damages may be allowed by the jury, in actions of libel, -when, upon a consideration of all the facts and circumstances of the case, they find that the publication has been made with a reckless disregard of the rights and feelings of the person libeled, as well as where they find that it has been inspired by hatred or ill will towards, or an intent to injure, him. Bennett v. Salisbury, 45 U. S. App. 636, 639, 24 C. C. A. 329, 331, and 78 Fed. 769, 771; Ullrich v. Press Co. (Sup.) 50 N. Y. Supp. 788, 792; Samuels v. Association, 75 N. Y. 604; Bergmann v. Jones. 94 N. Y. 51, 62; Holmes v. Jones, 121 N. Y. 461, 467, 24 N. E. 701; Warner v. Publishing Co., 132 N. Y. 181, 184, 31 N. E. 393; Holmes v. Jones, 147 N. Y. 59, 61, 41 N. E. 409; Smith v. Mathews, 152 N. Y. 152, 158, 46 N. E. 164; Young v. Fox (Sup.) 49 N. Y. Supp. 634; Shanks v. Stumpf (Sup.) 51 N. Y. Supp. 154; Callahan v. Ingram, 122 Mo. 355, 371, 372, 26 S. W. 1020; Buckley v. Knapp, 48 Mo. 161; Clements v. Maloney, 55 Mo. 352, 359.
It is ordinarily a question for the jury to determine, in view of the particular circumstances of each case, whether or not punitive damages should be allowed, and the amount of the allowance is exclusively within tlieir province. Day v. Woodworth, 13 How. 370; Scott v. Donald, 165 U. S. 58, 89, 17 Sup. Ct. 265; Holmes v. Jones, 147 N. Y. 59, 67, 41 N. E. 409. The constitution of the state of Missouri, where these actions were tried (article 2, § 14), provides that:
*770 “In all suits and prosecutions for libel the truth thereof may he given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”
Tbe questions which have now been discussed were presented in various forms in the trial of the cases before us, and have been properly saved for our consideration. It seemed conducive to a convenient and expeditious disposition of the cases to consider them before stating the details of the exceptions which raise them. We turn to a consideration of these exceptions. The main point of attack is the charge of the court. The plaintiffs in error did not plead or prove the truth of the charges for the publication of which these suits were brought, but they produced evidence to the effect that Sheriff Reeder originated the charges, and stated them to their reporters before their publication, and they prayed in their answers, and in four requests which they presented at the close of the trial, that they might prevail on account of this pleading and proof. The court carefully read to the jury the three libels, stated clearly the contents of the answers of the plaintiffs in error, and then addressed itself in their order to the questions of justification, mitigation of damages, compensatory damages, exemplary damages, and some special phases of the cases against the Times Company and the World Company. The trial judge properly charged the jury that the fact that the libelous matters published were told to the publishers by another was no justification for their publication, and that proposition of law is not challenged in this court, although, as we have said, the judge was asked to hold the counter proposition at the trial, and exceptions were taken because he refused. The complaint .now is that there was error in the charge of the court on the question of damages, and we have called attention to the fact that this question of justification was presented and urged upon the court below because many of the statements of the judge that are now challenged as tending to induce error in the assessment of damages were not addressed to that subject at all, but to the question of justification alone. For example, he said:
“Tbe repetition of slander uttered by publication in tbe newspaper makes tbe publisher of that scandal or libel as much responsible in law for tbe act of publication as if the newspaper were the originator of the slander; tbe information they received, as you will be advised by the court later on, going to tbe question only of damages.”
This was a correct statement of the law. The court did not say that the publisher would be liable for as much damages as the originator, but that he would be as much liable, and he was speaking, not of the amount of damages, but upon the question of a justification of the publication.
It is assigned as error that the court instructed the jury that, if the defendant in error recovered, he would be entitled to compensatory damages, and then said that by “compensatory dam-, ages is meant simply such sum of money, such round sum in measurement, as in the judgment of the jury will compensate him for injury done to his feelings and his character and reputation.”
The statutes of the state of Missouri require that, in all actions where punitive damages are recoverable, the jury shall separately state the amount thereof in their verdict (Laws Mo. 1895, p.168), and it is insisted that the court erred because it told the jury to assess such damages in these cases as they deemed just and right, and did not require them to separate the exemplary damages from the actual damages. We have searched this record in vain for any request on the part of the plaintiffs in error for such a separate assessment, nor do we find (hat this statute or this objection was in any way called to the attention of the court when the charge was delivered and the exception taken. The function of this court is to review the supposed errors of the court below. There is no error her<' for us to review, because this question was not presented to, or decided by, that court. Moreover, if it had been, there was no error in the instruction given or the practice adopted by the trial court. The federal courts are not required to follow subordinate provisions of state statutes which would incumber the administration of the law or tend to defeat the ends of justice in their tribunals. O’Connell v. Reid, 12 U. S. App. 369, 378, 5 C. C. A. 586, 592, and 56 Fed. 531, 537.
The next subject for our consideration is the charge of the court upon exemplary damages. While treating the subjects of justification and compensatory damages, the court defined “malice,” in its legal sense, to be “a'wrongful act, done intentionally, without legal justification or excuse,” and used it in that sense throughout its instructions. It told the jury that no justification of the publication of the libels had been pleaded or proved, that malice was implied from their publication, and that the defendant in error was entitled to recover compensatory damages. This was a correct statement of the law, under all the authorities. White v. Nichols, 3 How. 266. When the court came to the subject of exemplary damages. it said to the jury:
“As I have already stated to you, gentlemen of the jury, the publication of libelous mailer in a newspaper, that Is false, and without justification or legal excuse, itself expresses malice, and entitles the parties to recover thereon. These publications can be made under circumstances which entitle the party to something more than wliat is called ‘compensatory damages.’ ”
It then proceeded to give the portion of the charge on compensatory damages which has been considered, and continued in this way:
"It is also permissible for the jury to award, in libel cases, what is known as •punitive’ or ’exemplary’ damages; that is, damages by way of punishment to*772 the party for doing recklessly and wrongfully an injury to another, or exemplary damage such as would he an example to the community to prevent such wrongs and injustice to society, to punish the party. Now, gentlemen of the jury, you are to determine for yourselves, from all the evidence in this case, as to whether or not you give the party punitive damages. Look at all the circumstances and facts in the case, to see whether this publication was made under circumstances such as to entitle the plaintiff to recover punitive damages.”
This portion of the charge is vigorously assailed. It is contended that it is erroneous (1) because the charge on malice was not accompanied “with a further charge that, m the absence of express malice or its legal equivalent, there could be no recovery of exemplary damages”; (2) because “the proper legal definition as to what is sufficient to authorize exemplary damages was not given by the court, and the evidence did not warrant the charge on the subject”; and (3) because the court refused to give to the jury instructions 5, 7, and 8, which were requested by the plaintiffs in error, and which read in this way:
“(5) If you find, from all the circumstances, that there was no malice on the part of any one of the defendants towards the plaintiff inducing or actuating the publication complained of against that defendant, then you can give no damages against such defendant on account of such malice.”
“(7) If a newspaper is advised by officers of the law, or other persons, that a given party has been guilty of an offense, and publishes that fact in good faith, and without any actual malice against such person, mentioning the source of •its information in such publication, and having reasonable ground to believe that the facts stated are true, then such defendant cannot be charged with punitive damages by reason of such publication.
“(8) The jury are instructed that it is competent for a newspaper publisher to show, in mitigation of any punitive damages sought to be recovered from it for the publication of a libel, that it acted upon information received by it, and that it had reasonable cause to believe, and did believe, that the particular publication complained of was true at the time it was made, although it may have developed, by subsequent occurrences, that as a matter of fact such statements were not true.”
The relation of malice to the action of libel, and to the recovery of exemplary damages, has been purposely discussed in the earlier part of this opinion, and it is only necessary here to compare the charge of the court with the conclusions there stated. In brief, they were that malice, in the legal sense in which the court below used it, is implied from the publication of an unprivileged libel; that malice, in the ordinary sense, — that is to say, ill will, hatred, or an intent to injure the person libeled, — is not essential to the recovery of compensatory damages in an action for libel; and that exemplary damages may be recovered either when the publication is inspired by ill will or an intent to injure the victim, or when it is made with a reckless disregard of his rights. A comparison of the charge of the court with these conclusions, shows thdt it is in strict accord with them. The court spoke of malice in its legal sense. Taken in that sense, it was implied from the publication of the libels, and it remained implied throughout the entire trial, for the purposes of compensatory, as well as of exemplary, damages. In many cases this implied malice would be insufficient to warrant exemplary damages. But this implied malice, together with a conscious indifference to, or a wanton or reckless disregard of, the
The objection that there was no evidence to warrant the consideration of exemplary damages by the jury must share the same fate. A merchant of unspotted character and unblemished reputation, residing and engaged in mercantile business in the city where these publications were made, was arrested on the affidavit of a stranger, who lived hundreds .of miles away, for knowingly having in his possession eight stolen cattle. This affidavit was accompanied with the usual information, verified by the district attorney of a county in Utah, and by the necessary affidavit of the assisiant district attorney of the same county for a requisition, with the usual requisition, and with an order for his arrest. When he was arrested, he and his attorney protested to all the agents of the plaintiffs in error who inquired of him that he was innocent of this charge. An account of his arrest, and of the charge against him, was published, and of this he made no complaint. The sheriff of Mesa county, who arrested him, and who, so far as this record discloses, was a stranger to the agents and employés of the plaintiffs in error, said in their hearing that the defendant in error had been operating with, and associated with, and had been the head of, a gang of cattle thieves. The publication of this charge is the foundation of these suits. The defendant in error was in Kansas
Another contention of counsel for plaintiffs in error, under this exception, is that punitive damages cannot be recovered of their clients, because they are corporations. But the charges which they published were gathered and circulated in the course of their ordinary business by their agents who were acting within the scope of the authority and duty intrusted to them, and for “acts done by the agents of a corporation in the course of its business and of their employment a corporation is responsible in the same manner and to the same extent as an individual is responsible under similar circumstances.” Railway Co. v. Prentice, 147 U. S. 101, 109, 13 Sup. Ct. 261; Railroad Co. v. Quigley, 21 How. 202, 210; Bank v. Graham, 100 U. S. 699, 702; Salt Lake City v. Hollister, 118 U. S. 266, 261, 6 Sup. Ct. 1055; Railway Co. v. Harris, 122 U. S. 597, 608, 7 Sup. Ct. 1286.
The conclusions already announced practically dispose of the refusal to give the three instructions requested. The fifth was a mere truism, from the failure to give which it is evident that no prejudice could possibly have arisen. It was a request to say to the jury, in effect, if you find no malice, you can give no damages on account of malice, or, in other words, you will give no effect to a nonexistent cause. No prejudice can arise from the refusal to give such an instruction. It may be further said that in these cases malice, in the legal' sense, was implied from the publications, and the jury were not at liberty to find that it did not exist, while
On the evening of the day of the arrest, a friend of the defendant in error and his partner went to the office of the Times Publishing Company, met the city editor, told Mm that the charges against Carlisle contained in the article which had been published on that day in the Kansas City Star, and which was then before him, were false, and that Carlisle was innocent, and, according to the testimony of the city editor, demanded that he should print nothing about it. The article subsequently published in the Times the nqjct morning contained substantially the same charges made in the article in the litar. When the interview with Mr. Carlisle’s friend and partner took place, the Times article had been written by the police reporter, and either at or after this interview the city editor inserted a statement to the effect that the defendant in error claimed that he was entirely innocent of the charge, and then published it. Before preparing the article the police reporter had talked with Carlisle, find the latter had told him that the charge against him of receiving the stolen cattle was trumped up, and his attorney, Watson, had informed him that Carlisle could prove his innocence of it. In answer to the question why he published the statements in the Times article of charges other than that for which the arrest was made, the city editor of the Times testified:
*776 “Now, this man Reeder. The only thing, according to his statement, — the only specific charge they could get against this man, — was he had received eight head of cattle. But this man Reeder, who came from Colorado, believed that Mr. Carlisle was the head of an organized gang of cattle thieves. I say he believed it, and that was all we knew about it.”
When tbe friend of Carlisle protested against the publication of the matter in the Star, the night before the Times Company published its article, this city editor replied that he intended to publish it anyway, and his assistant, or some other person in the office, added an injunction to read the Times and keep posted. It is assigned as error that the court below, in presenting this evidence to the jury, stated it incorrectly, and then instructed them, in effect, that when a newspaper is warned and notified that a charge is false, wrong, and trumped up, and then proceeds to publish it, it thereby affirms it, becomes sponsor for it, and answerable to the party injured, and that it was for them to say, under all the circumstances of the case, whether, if the Times Company published the libel, even with the addition to the effect that Carlisle claimed to be entirely innocent, it did or did not exhibit a wanton disregard of the rights of others. The testimony of the witnesses in the case of the Times Company has been carefully compared with this part of the charge of the court. There are verbal inaccuracies in the statement which the court made of this evidence. In some instances testimony attributed to one witness was given by another, but the substance and effect of the testimony relative to the action of the Times Company was clearly and fairly stated by the court, and the law was correctly declared. There was no just ground for exception to this part of the instructions to the jury.
It is assigned as error that the court below refused to permit the introduction of proof of the article in the Star, and its publication, in mitigation of damages, and that, while it admitted proof of the fact that this article was before the city editor of the Times and the friend and partner of Carlisle at the interview on the evening of February 20th, it restricted its effect to that fact. But the article in the Star was not evidence of the truth of the statements it contained, and it was not admissible in mitigation of damages in the action against the Times Company, because it was not pleaded in its answer in that case. For the same reason the offer to prove, by the testimony of the reporter of the Star, that he communicated what Reeder had told him to the reporters of the plaintiffs in error before they published their articles, was properly rejected. Neither of the answers pleaded or suggested the article in the Star or the story of its reporter as one of the sources which induced the plaintiffs in error to make such publications. In jurisdictions which have adopted the Code, matter in mitigation of damages must be pleaded before it can be proved. Rev. St. Mo. 1889, § 2081; Northrup v. Insurance Co., 47 Mo. 435, 444; Burt v. Newspaper Co., 154 Mass. 238, 244, 28 N. E. 1; Hewitt v. Pioneer-Press Co., 23 Minn. 178.
It is also assigned as error that the reporter of the Star was not permitted to testify in these actions to what Sheriff Reeder told him at the time of the arrest of Carlisle. As we have already seen, his testimony upon this subject was not competent in mitigation of
In connection with the rejection of this testimony, much complaint is made of the action of the court in the submission of- the evidence upon the question of mitigation of damages to the jury. The record and the charge have been carefully examined upon this subject, with the result that it seems to ns that this complaint is not warranted. The court expressly charged the jury that, while the answers did not plead justification, they set out the facts and circumstances out of which the publication of these articles grew, for their consideration on the question of the mitigation of damages and ihat they should look at all the circumstances and facts in the case to see whether (he publications were made under such circumstances as to entitle the defendant in error to recover punitive damages. All the requisition papers had been received in evidence. The reporters of the plaintiffs in error had been permitted to testify fully to their examination of these papers, and to all that Sheriff Reeder had told them. With this evidence before them, these instructions gave to ihe jury all that the plaintiffs in error had pleaded, and all that they had proved, for their consideration upon the question of mitigation of damages, and (hey were too plain for mistake, misconstruction, or misund ers ta tiding.
When the charge of receiving the eight bead of stolen.cattle was dismissed by the court in Colorado, the World Company published an article, purporting to be signed by Sheriff Reeder, to the effect that tbe charge had been dismissed by the entry of a nolle prose-qui, and that the defendant in error was thoroughly vindicated in a lengthy opinion on the merits of the case submitted by the district attorney. The Journal Company and the Times Company made no publication of these facts, and did not publish the fact that the defendant in error brought these actions. In its charge the court called the attention of the jury to the publication of this article by the World Company, told them that if, when a publisher ascertains the fact that he lias done an injustice, he makes- the amende honorable, says he has done a wrong, he has then acted the manly part; public opinion and juries ought to appreciate such an act; and the jury ought to consider this later publication by the World pany in mitigation of damages. It is assigned as error on the of the Journal Company and of the Times Company that when court gave this charge, and while speaking of a publisher, it ed:
But If, having slandered you and libeled you, he doggedly remains reticent ;m that day forth, leaving you to run down and to catch this swift-footed .ander that goes through the world, that is another question for the jury.”
But this statement of the court was certainly true in fact, and we are unable to discover why it is not true in law. A different question is surely presented, when a jury is to consider the damages to
Another portion of the charge to which objection is made reads in this way:
“One of the counsel in this case argues that Mr. Carlisle never went to the papers, and asked them to make these corrections. Gentlemen of the Jury, it is not the duty — it is not required — of a citizen, when a newspaper libels him, if it does libel him, to go and hunt the libeler up, and entreat and implore him to rectify it. It is the duty of the publisher to look out for the facts, and to make corrections if the facts warrant it. It is not the duty of a man to go to them.”
There is nothing questionable in this excerpt from the charge, except the last sentence but one, and that must be read and interpreted in the light of the subject under discussion when it was delivered. If the question of which the court was treating had been whether or not a person libeled could recover damages for the failure of the libeler to discover the truth and publish it after he had circulated the libel, and the court had charged that he might, such an instruction would undoubtedly have been error. But this was not the subject under consideration here, and this was neither'the meaning nor the effect of the declaration of the court. The question under discussion was whether or not the fact that the defendant in error did not go to the publishers, and tell them the facts, and demand a retraction, after the libels were circulated, was any justification or excuse for their original publication. The court properly charged that it was not, and the remark that “it is the duty of the publisher to look after the facts, and to make corrections, if the facts warrant it. It is not the duty of a man to go to them,” — was used arguendo, only to support and enforce this rule, and not to announce another and an entirely different proposition of law, which was not in the mind of either court or jury. The connection in which these words were used made it impossible for the jury to misunderstand them, and in that connection their use was not erroneous.
Many assignments of error are made, and much complaint is indulged in, because the court below limited the effect of the requisition papers when they were received in evidence. An examination of these exceptions discloses the fact that the real objection to this limitation was that the court did not permit their use for the purpose of proving the truth of the facts which they recited. The proposition that the affidavit of the complaining witness, or the affidavits of the officers based upon it, constitute any evidence of the truth of the charges made therein, in these actions of libel, is unworthy of consideration. It is said, however, that great injustice was done
The entire'charge of the court is challenged as partial and inflammatory. Careful and repeated readings of it, and of every objection made to if, have led us all to the conclusion that it was, on the whole, a just and fair presentation of the law and the facts of these cases. The truth undoubtedly is that the plaintiffs in error published the libels without special ill will or spite against Carlisle, on the theory that they were warranted in doing so because the sheriff of Mesa county made the charge they contained in the hearing of their reporters. This was a fatal mistake. Its commission left them without any defense against judgments for some amounts in these actions. The only question the cases really presented was what the amount® of the judgments should be. This was not all. The publication of the charge that Carlisle had been operating with, or associated with, or had been the head of, a gang of thieves, on the statement of this sheriff, without investigation or inquiry concerning its truth of any one but their informant and those who were’repeating it on his information alone, in the lace of the presumption of innocence, which the law throws around the upright man who has established a character for honesty and integrity, indicates so grave an indifference to and disregard of a right of the defendant in error deemed precious by every honorable man, — the right to the preservation of his good name unsullied, — that the court could not lawfully refrain from submitting to the jury the question of exemplary damages. We fear that counsel for the plaintiffs in error, in their criticisms of the trial court, have forgotten some of these facts. They have been instant in season and out of season in the defense of these cases. With rare skill and ability they have presented to the court below, and to this court, every consideration — every suggestion — favorable to their clients. But they were defending cases wrhich the law forbade them
The more carefully we have studied the record, the rulings upon " the evidence, and the charge of the court in this case, the more firm our conviction has grown that the trial was, on the whole, fairly conducted; that the references to the evidence in the charge were just and impartial; that the instructions to the jury contained a terse, clear, and correct statement of the law of the cases; and that there was no substantial error in the proceedings. This conviction is confirmed as we review the entire case, and the arguments and briefs of counsel, by the fact that the counsel for the plaintiffs in error assign more than 75 errors in each of these cases, and specify in their briefs 74 upon which they rely. None of them have escaped our consideration. But none of them which have not already been considered demand extended notice or discussion. The 48th, 49th, 50th, 51st, and 52d assignments are that the court did not instruct the jury to return a verdict in favor of each of the plaintiffs in error; that it allowed the defendant in error more than three peremptory challenges (Insurance Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909); that it refused to permit the plaintiffs in error to prove that Carlisle had not sued, or made any claim against, Chipman or his company for char