POST PUB. CO. v. HALLAM, 59 F. 530

TAFT, Circuit Judge, after stating the case as above, delivered the opinion of the court. It is first assigned for error that the circuit court admitted in evidence the

article in the Kentucky Post. This was proper. The

article was. relevant for the purpose of showing malice. By the weight of authority, prior and contemporaneous publications of the same libel, other than that declared on, are competent evidence to show malice, whether such other publications may themselves be made the basis of recovery in separate suits or not; and the danger of a double recovery for the same publications is to be avoided by a caution from the court that damages are to be allowed only for the

article sued on. VanDerveer v. Sutphin, 5 Ohio St. 293; Pearson v. Lemaitre, 5 Man. & G. 700; Chamberlin v. Vance, 51 Cal. 75; Shock v. McChesney, 2 Yeates, 473; Gibson v. Cincinnati Enquirer, 2 Flip. 121; Townsh. Sland. & L. § 392; Odgers, L. & Sland. 272; Newell Defam. 331. In its charge the circuit court, "calling the jury’s attention to the pendency of the suit in Kentucky for damages for the Kentucky Post article, quite distinctly told them not to find any damages except for the

article in the Cincinnati Post. In New York, other publications of the same or different libels by the defendant are not admitted to prove malice, unless suit upon them is barred by limitation, or for some other reason, (Frazier v. McCloskey, 60 N. Y. 337;) but, as already stated, this is contrary to the weight of authority. It was said that the introduction of the Kentucky Post

article was likely to lead the jury to include damages for the malice of the Kentucky

article in a verdict on the Cincinnati article. The fact is, doubtless, that the same motive — whether of malice or public interest — which prompted one

article prompted the other. It was to enable the jury to judge what the real motive was that the Kentucky Post was admitted. There is nothing which prevents the award of exemplary damages for the same malice in separate publications of the same or similar libels. The same criminal intent may lead to the commission of two separate offenses, but they are separately punished by two sentences. It may be, as suggested by Judge Bartley in VanDerveer v.

Sutphin, 5 Ohio St. 293, 296, and by the learned judge who presided at the trial below, that the judgment in the first suit would be competent evidence in the second suit to reduce punitive damages; but that question is not before us. It was urged by counsel that the Cincinnati and Kentucky publications were merely different editions of tbe same* paper, and that the two libels were one and the same thing. Such an argument would be more relevant on a plea of res judicata in tbe second suit.

But, if the contention be well founded, it removes the only reason suggested in any authority for excluding the Kentucky publication, —Unit is, that it may be made the basis of a second recovery. It is assigned for error that the defendant’s counsel was not permitted to ask the plaintiff, when on the stand, whether it was true that he had not paid his taxes. The statement that Ilallam had not paid his taxes in the alleged libel was for the purpose of emphasizing his poverty, and thus lending probability to the insinuation that Ilallam had sold his influence to Berry for the payment of the bill at the St.

Nicholas Hotel. Defendant was permitted to show that Hallam was a man of small means, and whatever weight such a circumstance, with others shown, might reasonably have in the mind of the defendant to induce a bona fide belief in the charge against Hallam, the defendant had the benefit of before the jury. It does not appear that defendant’s counsel made any pro Her to the court of what he intended to show in answer to the question. It may he that Hallam would have answered that he liad paid his taxes, and, if so, the defendant was not injured by the exclusion of the evidence.

Moreover, the question was put on cross-examination, when nothing had been asked of Hallam on the subject in chief. In the federal courts, the right to cross-examine a witness is limited to matters stated in his direct examination. Houghton v. Jones, 1 Wall. 702. Had defendant’s counsel deemed the matter of sufficient importance, it would have been easy for him to offer the record evidence of the nonpayment of Hallam’s taxes when presenting defendant’s evidence, and the ruling of the court-then would have involved only the question of the relevancy of the evidence in mitigation. He did not do this.

As the point is now presented on the record, there is no prejudicial error apparent. The third assignment of error is that the court permitted counsel for the plaintiff, in cross-examining the managing and city editors of the defendant, to ask them whether, after the suit was brought, there had been any notice of it published in the defendant’s newspapers. We think tills was a circumstance which the jury migh t properly consider in weighing the direct evidence of these two editors to the effect that their feeling towards Hallam was friendly and free from malice.

It is quite true that the defendant was under-no legal obligation to publish the fact that Hallam had asserted, under oath, the falsity of defendant’s statement concerning him, and had sought to vindicate his injured reputation by a suit; but the fact was of a class of facts usually recorded in the court news of every newspaper, and its intentional omission reflected on the good faith of the statement that the feeling of the defendant and its editors was entirely friendly to Hallam.

A similar ruling was made by Die court below with reference to evidence, also brought out on cross-examination of the same witnesses, that defendant was party to an agreement with, all the other newspapers of Cincinnati that they should not publish the fact that a libel suit had been brought against any one of them.

The agreement was not unlawful, but defendants purpose thus manifested, to prevent one whose reputation should be injured by unfounded charges in defendant’s columns from securing the partial remedy of publishing in any newspaper his denial under oath, and his intention to vindicate his character tended to show an indifference on defendant’s part to the possible wrong it might do to such á person.

If, as was suggested by counsel, the motive for such an agreement can be found in the. desire of the defendant not to impair its credit by publishing the fact of a suit for large damages against it, this is an argument to be addressed to the jury in explanation of the circumstance; but it is not so conclusive in its character as to prevent the circumstance from being relevant, for the reason already given.

It is next objected that the circuit court permitted plaintiff’s counsel, on cross-examination of the witness McRae, to ask the following-question in regard to a conversation between the witness and Hallam at the St. Mcholas Hotel after the publication: “Q. Did not Mr.

Hallam further say this to you: ‘The way that you are running that paper, you want to have it so that when one man meets another on the street he will say, “Did you see that terrible roasting that so and so got this afternoon?” and thereupon the other man will say, “No, I wonder where I can get a paper.” ’ And Uid you not thereupon reply to him, ‘That is modern journalism?’ A. No, sir; I did not.” And the plaintiff was subsequently permitted on the stand to testify that such a conversation as that implied in the foregoing- question did take place. McRae testified on direct examination that the

article had been submitted to him by the editor who prepared it, with the assurance that it truly stated the facts as developed after a thorough investigation, and that he thereupon approved its publication because it was news of much public interest. He denied having any malice toward Hallam.

The conversation embodied in the foregoing question, if it occurred, would tend to show that McRae’s policy in conducting the newspaper was to increase its sale by making sensational charges against individuals, — a policy which would strongly indicate reckless indifference on his part to the rights and reputations of others. It is well settled that reckless indifference to the rights of others is equivalent to the intentional violation of them, and that for the one, as well as the other, a jury in a case of libel or other tort may give punitive or exemplary damages. Association v. Rutherford, 1 U. S.

App. 296, 2 C. C. A. 354, 51 Fed. 513; Gott v. Pulsifer, 122 Mass. 235, 239; Warner v. Publishing Co., 132 N. T. 181, 30 N. E. 393; Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701. If, in approving the publication, McRae was moved by malice or its equivalent, he so far-represented the defendant corporation as its general manager that his malice was in law the malice of the defendant. Railway Co. v. Prentice, 147 U. S. 101, 114, 13 Sup. Ct. 261; Railway Co. v. Harris, 122 U. S. 610, 7 Sup. Ct. 1286.

If the conversation occurred, it had a tendency to contradict McRae on the subject of his motive in publishing the article, which thus was one of the main issues in the case, and not, a more collateral matter. It was, therefore, manifestly proper for the plaintiff, in rebuttal, to adduce evidence to show that such a conversation did take place, in order to impeach McRae’s credibility as a witness in regard to the important issue of malice.

Another error assigned is that the court permitted plaintiff to introduce evidence of his general character for integrity, to rebut evidence offered by'defendant that Hallam’s reputation for integrity in politics was had. It is undoubtedly the rule that evidence as to reputation upon the question of damages must be confined to the reputation for that particular trait of character which is involved in the libelous charge. Drown v. Allen, 91 Pa. St. 393; Duval v. Davy, 32 Ohio St. 604; Sanford v. Rowley, 93 Mich. 119, 52 N. W. 1119; Moyer v. Moyer, 49 Pa. St. 210; Greenl. Ev. § 55.

When a man is charged with «(filing his influence in a'political convention, the trait, of his character which is attacked is his integrity, — his general integrity. If a man’s general reputation for integrity is good, proof of it. certainly rebuts evidence that he has a reputation for corruptly selling himself in political conventions, for the two are inconsistent. We should be loth to differentiate a want of integrity in political matters from the same failing in business or society.

The theory upon which evidence of had reputation may he introduced in libel cases is that a man with a had reputation in the phase1 of character involved in the charge has very little reputation to lost1 from such a charge, though false, and is therefore entitled to but little compensation.

But, if a man can show a good general reputation for integrity, he has much to lose from a false charge of corruptly selling his influence in politics, and, when it is attempted to diminish his loss by evidence of bad reputation for political integrity, he may very well be permitted to rebut such evidence, and its intended effect, by showing that he has always been regarded as a man of general integrity in all transactions of his lift1. The cases cited by counsel for defendant do not sustain his contention. In Moyer v. Moyer, 49 Pa.

St. 211, it was held that it was competent in a libel suit, where the charge was perjury, for the defendant to show that plaintiff’s reputation for truth and veracity was bad. If the rule were as strict as here contended for, then, in the ease cited, the defendant should have been limited to proving that plaintiff’s reputation for telling the truth under oath in court. was bad. In Sanford v. Rowley, 93 Mich. 119, 52 N.

W. 1119, where the libel charged political treachery and lying, the defendant was permitted to prove that the plaintiff’s reputation for political treachery and lying was had; but it was stated by the court that the defendant might have shown that plaintiff’s reputation for truth and veracity generally was had. Sav the court (page 124, 93 Mich., and page 1121, 52 N. W.:) “It would necessarily follow, if these pL e.

"bad reputation for treachery and lying in political matters] were shown, that the plaintiff’s general reputation for truth was bad, for it can hardly be conceived that a person whose general reputation for truth is bad, In a political sense, has a good reputation for truth and veracity.” In Drown v. Allen, 91 Pa. St. 393, the charge was that the plaintiff was a thief, and the defendant offered to prove that he had that reputation, hut the trial court restricted him to proving that plaintiff’s reputation for honesty was bad.

The supreme court reversed this ruling, and held that the defendant was entitled to show plaintiff’s reputation for being a thief. In neither of these cases was it held that the plaintiff might not have rebutted, in the one case by proof of general reputation for veracity, or in the other by proof of general reputation for honesty. In the case at bar the defendant was permitted to offer proof of the plaintiff’s bad reputation for integrity in politics, and was not compelled to attach his general integrity. The objection here is that plaintiff was permitted to rebut by showing his general integrity.

The objection can only be sustained on the theory that a man’s general reputation for integrity may be good, and his reputation for corruptly selling his political influence may be bad, — a theory to which, as already said, we cannot yield our assent. The defendant was permitted to offer evidence that its editor who prepared the

article had heard, from several sources, rumors that Hallam had transferred his support to Berry for a money consideration.

In rebuttal the plaintiff offered, and was allowed to introduce, over defendant’s objection, evidence that it was the general and widespread understanding at the convention and in the community that the reason why Hallam and his supporters, after giving up the fight in his behalf, transferred their votes to Berry instead of to a country candidate, was that they had transferred their votes from Hallam to country candidates in previous conventions, and they resented the ingratitude of the delegates from the country counties in not coming to Hallam’s aid in this convention. This is assigned for error.

There is much conflict of authority on the point whether the defendant may give evidence of rumors, known to defendant, in mitigation of damages, and the cases will be found cited in Townsh. Sland. & L. (4th Ed.) § 411. A well considered case is that of Scott v. Sampson, 8 Q. B. Div. 491, where such evidence is held to be improper. See, also, Edwards v. Publishing Co., (Cal.) 34 Pac. 128. The circuit court, in admitting the evidence, followed the decision of the supreme court of Ohio in VanDerveer v. Sutphin, 5 Ohio St. 293.

It is unnecessary for us to decide the question, for it is clear that if the defendant opened the door to evidence of-rumors, however incompetent, it cannot be heard to object to the plaintiff’s offering the same kind of evidence in rebuttal. Bogk v. Gassert, 149 U. S. 17, 25, 13 Sup. Ct. 738; Ward v. Manufacturing Co., 56 Fed. 437, 441, 5 C. C. A. 538; Elliott’s App. Proc. § 628, and causes cited. All that we have to consider, therefore, is whether the evidence of rumors put in by plaintiff was in rebuttal to that offered by defendant.

Defendant offered the rumors to show that its reporter had some basis for his belief, and acted in good faith, and thus to disprove actual malice or wanton negligence or indifference.

The plaintiff, by showing other reports which were so widespread through the community that any one investigating the matter must have heard them, and which offered an explanation of the transfer of the Kenton county vote consistent with Hallam’s integrity and that of his followers, made it appear probable that the reporter of the defendant had the benefit of this explanation, or at any rate could have had it by the slightest inquiries, and yet preferred that which reflected on Hallam. A failure to refer in the

article to the explanation favorable to Hallam certainly tended to rebut tlie claim of good faith in its publication, based only on the hostile rumors. This was the effect of the charge of the court on the subject. We do not think that there is any reversible error in the ruling. It is further objected that the court did not submit the question to the jury whether the innuendo of the petition was sustained by the libel, because issue had been made upon the innuendo, and the defendant was entitled to have the question of the meaning of the

article submitted to the jury as a question of fact. From a reading of the charge of the court it seems to us that the question what the

article in fact did mean was most fully left to the jury. The court refused to give a charge on the subject which was requested by the defendant below. That charge was as follows: “In order to entitle the plaintiff to recover in this action it will be necessary that lie shall satisfy yon. by a. reasonable preponderance of proof, of the allegation of that part of the petition usually called the ‘innuendo,’ — that is to say, that by the

article published the defendant intended to charge said Hallam with having requested his supporters to cast their votes upon the last ballot for Berry for a pecuniary consideration to be paid by said Berry, and especially that ho should pay to the St. Nicholas Hoi el the bill incurred by said Hallam for food and drink ordered by him; and, unless you .shall And that the defendant did so intend and charge, you will find for the defendant.” The charge was rightly refused. The question in the case was not what the plaintiff intended to charge in the article, but what in fact he did charge, and what the public who were to read the

article might reasonably suppose he intended to charge. Curtis v. Mussey, 6 Gray, 261. No error can be based on the refusal of the court to give the charge stated. Finally, we come to those assignments of error which are based on the charge of the court in regard to privileged communications. The court in effect told the jury that the

article in question, relating, as it did, to a matter of public interest, came within a class of communications that were conditionally privileged; that the public acts of public men (and candidates for office were public men) could be lawfully made the subject of comment, and criticism, not only by the press, but also by all members of the public, for the press had no higher rights than the individual; but that while criticism and comment, however severe, if in good faith, were privileged, false allegations of fact, as, for instance, that the candidate had committed disgraceful acts, were not privileged, and that, if the charges were false, good faith and probable cause were no defense, though they might mitigate damages.

Counsel for the plaintiff in error and the defendant below has argued with great vigor and an array of authorities that we ought not to adopt the view of the circuit court upon this important question, but should hold that the privilege extends to statements of fact as well as comment. The argument is this: Privileged'communications comprehend all bona fide statements in performance of any duty, whether legal, moral, or social, even though of imperfect obligation, when made with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they are made.

Townsh. Sland. & L. § 209. It is of the deepest interest to the public that they should know facts showing that a candidate for office is unfit to be chosen. Therefore, every one who has reasonable ground for believing, and does believe, that such a candidate has committed disgraceful acts affecting his fitness for the office he seeks, should have the right to give the public the benefit of his information, without making himself liable in damages for untrue statements, unless malice is shown.

Though of imperfect obligation, it is said to be the highest duty of the daily newspaper to keep the public informed of facts concerning those who are seeking their suffrages and confidence. Can it be possible, it is asked, that public policy will make privileged an unfounded charge of dishonesty or criminality against one seeking private service, when made to the private individual with whom service is sought, and yet will not ex-, tend the same protection to him who in good faith informs the public of charges against applicants for service with them?

Is it .not, at least, as important that the high functions of public office should be well discharged, as that those in private service should be faithful and honest? The a fortiori step in this reasoning is only apparent. It is not real. The existence and extent of privilege in communications are determined by balancing the needs and good of society against the right of an individual to enjoy a good reputation when he has done nothing which ought to injure it. The privilege should always cease where the sacrifice of the individual right becomes so great that the public good to be derived from it is outweighed.

Where conditional privilege is extended to cover a statement of disgraceful fact to a master concerning a servant or one applying for service, the privilege covers a bona fide statement, on reasonable ground, to the master only, and the injury done to the servant’s reputation is with the master only. This is the extent of the sacrifice which the rule compels the servant to suffer in what was thought to be, when the rule became law, a most important interest of society.

But, if the privilege is to extend to cases like that at bar, then a man who offers himself as a candidate must submit uncomplainingly to the loss of his reputation, not with a single person or a small class of persons, but with every member of the public, whenever an untrue charge of disgraceful conduct is made against him, if only his accuser honestly believes the charge upon reasonable ground. We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good.

We are aware that public officers and candidates for public office are often corrupt, when it is impossible to make legal proof thereof, and of course it would be well if the public could he given to know, in such a case, what lies hidden by concealment and perjury from judicial investigation. But the danger that honorable and worthy men may he driven from politics and public service by allowing too great latitude in attacks upon Llieir characters outweighs any benefit that might occasionally accrue to the public from charges of corruption that are true in fact, but are incapable of legal proof.

The freedom of the press is not in danger from the enforcement of the rule we uphold. No one reading (lie newspaper of the present day can be impressed with the idea that statements of fact concei-ning public men, and charges against them, are' unduly guarded or restricted; and yet the rule complained of is (he law in many of the states of the Union and in England. In Davis v. Shepstone, 11 App. Cas. 187, Lord Chancellor Herschell delivered the judgment of the judicial committee of the privy council in an appeal from a judgment for libel recovered in the supreme court of Natal.

The plaintiff below was a resident commissioner of Great Britain in Zululand, and the alleged libel charged him with having committed unprovoked and altogether indefensible assaults upon certain Zulu chiefs. The publication was made in the colony of Natal, where the conduct, of the resident commissioner in Zuluiand was of great public interest. It was claimed that the

article was conditionally privileged, and that the plaintiff ought to have succeeded only on proof of express malice. This claim was denied. The lord chancellor thus si.ated the law: “There is no doubt that fclie public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members, of the public. But tlie distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed or discreditable language used.

It is one thing to comment upon or criticise, even with severity, the acknowledged or approved acts of a. public man, and quite another to assert that be has been guilty of particular ads of misconduct. In the present case the appellants, in the passages which were complained of as libelous, charged the respondent, as now aj)pears, without foundation, with having-been guilty of specific acts of misconduct, and tlien proceeded, on the assumption that tlie charges were (rue, to comment upon his proceedings in language in the highest degree offensive and injurious.

Not only so, but they themselves vouched for tlie statements by asserting that, though some doubt had been thrown upon the truth of the story, the closest investigation would prove it, to be correct. In their lordships’ opinion there is no warrant for the doctrine that, defamatory matter thus published is regarded by tlie law as the subject of any privilege.’’ Other English cases laying down the same doctrine are Campbell v. Spottiswoode, 3 Fost. & F. 421, 432. affirmed 3 Best & S. 769, and Popham v. Pickburn, 7 Hurl. & N. 891, 898. The latest American case, and the most satisfactory, is that of Burt v.

Newspaper Co., 154 Mass. 238, 242, 28 N. E. 1, where Justice Holmes discusses the question, and quotes with approval ike foregoing passage from the judgment in Davis v. Shepstone. Other American cases approving the same rule are Smith v. Burrus, 106 Mo. 94, 101, 16 S. W. 881; Wheaton v. Beecher, 66 Mich. 307, 33 N. W. 503; Bronson v. Bruce, 59 Mich. 467, 26 N. W. 671; Brewer v. Weakley, 2 Overt. 99; Sweeney v. Baker, 13 W. Va. 183; Hamilton v. Eno, 81 N. Y. 126; Rearick v. Wilcox, 81 Ill. 77; Negley v. Farrow, 60 Md. 158, 176; Jones v. Townsend, 21 Fla. 431, 451; Banner Pub. Co. v.

State, 16 Lea, 176; Publishing Co. v. Moloney, (Ohio,) 33 N. E. 921; Seely v. Blair, Wright, (Ohio,) 358, 683; Wilson v. Fitch, 41 Cal. 383; Edwards v. Publishing Co., (Cal.). 34 Pac. 128; State v. Schmitt, 49 N. J. Law, 579, 586, 9 Atl. 774; Eviston v. Cramer, 57 Wis. 570, 15 N. W. 760. In Publishing Co. v. Moloney, supra, the supreme court of Ohio say, with reference to the doctrine that statements of fact should be regarded as privileged when made concerning a candidate for an office, as follows: “AVe do not think the doctrine either sound or wholesome.

Tn our opinion, a person who enters upon a public office, or becomes a candidate for one, no more surrenders to the public his private character than he does his private property. Remedy, by due course of laAV, for injury to each, is secured by the same constitutional guaranty, and the one is no less inviolable than the other. To hold otherwise would, in our judgment, drive reputable men'from public positions, and fill their places with others having no regard for their reputation, and thus defeat the purpose of the rule contended for, and overturn the reason upon which it is sought to sustain it.

That rule has not been generally adopted in this country, and the converse of it has hitherto obtained in this state.” The view we have taken of the main question makes it unnecessary for us to consider whether the privilege claimed could extend, in any event, to statements concerning Hallam published two weeks after he ceased to be a candidate, and made to a public none of whom was a voter or a citizen of the congressional district in which Hallam had offered himself as a candidate.

Having examined the record and the assignments of error wdth much care, we find no error prejudicial to the defendant below, and therefore affirm the judgment of the circuit court, with costs.