damages until rebutted by proof of a contrary motive or of the truth of the matter published. [Ed. Note.-For other cases, see Libel and im-120.] 62—MALICE-PRE plies in a case of master and servant, its application is in a more restricted sense than in a case of carrier and passenger, because of the difference in the degree of care im- Slander, Cent. Dig. §§ 350, 351; Dec. Dig. posed and in the character of defenses that 4. LIBEL AND SLANDER may be made. Therefore it is generally held in a case of master and servant that the inference of negligence is deducible, not from the mere happening of the accident, but from the attending circumstances. Consequently, the mere breaking of a piece of apparatus is not of itself sufficient to make out a prima facie case. The attendant circumstances must show that the apparatus was defective, and that this fact was known to the master, or could have been known to him, by the exercise of ordinary care. Lile v. Louisville Railway Company, 161 Ky. 347, 170 S. W. 936. Nor is the question affected by the assurance of safety. SUMPTION-BELIEF-DEFENSE. While belief in good faith in the charge made is a defense to the presumption of malice ant, upon reasonable grounds, that plaintiff is raised by the charge, the mere belief of defendthe person accused of the crime, is insufficient, since it in no way tends to disprove malice in making the charge. [3] An assurance of safety does not impose upon the master absolute liability, regardless of the question of negligence. It bears only on the question of assumed risk, or of contributory negligence, and, where the master is negligent, renders such pleas ineffective to prevent a recovery, unless the danger is so obvious that an ordinarily pru dent person would refuse to do the work. REID v. NICHOLS. Slander, Cent. Dig. §§ 162, 163, 317; Dec. Dig. [Ed. Note.-For other cases, see Libel and 62.] Appeal from Circuit Court, McCracken County. Action by John Randolph Reid against Bell Nichols for libel. There was judgment for plaintiff for one cent and costs, and plaintiff appeals. Reversed. D. G. Park, of Paducah, for appellant. Berry & Grassham, of Paducah, for appellee. CLAY, C. In this action for damages for libel, plaintiff John Randolph Reid, recovered judgment for one cent and costs. Reid apof the defendant, Bell Nichols, a verdict and peals. 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 5, 1913, which, in substance, charged plaintiff, John Randolph Reid, with the murder of Finley. Thereupon Reid sued the Sun Publishing Company, the (Court of Appeals of Kentucky. Oct. 27, 1915.) 1. APPEAL AND ERROR 969-TRIAL 2-owner of the paper, for damages. The trial ACTIONS-TRIAL TOGETHER-DISCRETION OF COURT. The action of the trial court in ordering a suit for damages for libel against a newspaper company to be tried with a suit for libel against a reporter of the paper based on the same issues was not error, where it does not appear that plaintiff was prejudiced in any way, since the consolidation of cases involving the same issues lies in the discretion of the trial court, and its exercise will not be disturbed on appeal, except for clear abuse. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3845-3848; Dec. Dig. 969; Trial, Cent. Dig. §§ 3-5; Dec. Dig. 2.] 2. LIBEL AND SLANDER -STATUTE-CONSTRUCTION. 104-RETRACTION Ky. St. 1915, § 2438b, prescribing the effect of retraction in cases of libel, does not confer on the plaintiff the right to show failure to retract for the purpose of aggravating punitive damages, but extends the privilege of showing retraction only to defendant for the purpose of defeating such damages. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 284-291; Dec. Dig. 104.] 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, 166 S. W. 242, and which sets out at length the libelous article complained 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 against the Sun Publishing Company and in the verdict and judgment against Nichols above indicated. [1] 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 isWhere defendant caused to be published of sues are the same in each action, the court plaintiff that he was rumored to have committed a murder, there was in effect a charge of may, in order to avoid unnecessary delay and murder, which is libelous per se, and raises a expense, order them to be tried together. presumption of malice, authorizing punitive Whether the cases should be tried together 3. LIBEL AND SLANDER SUMPTION. 120-MALICE-PRE 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, 103 S. W. 614; Walker v. Conn, 112 Ga. 314, 37 S. E. 403; Anderson v. Sutton, 2 Duv. 480; Sullivan v. Boston Electric Light Co., 181 Mass. 294, 63 N. E. 904; Worley v. Glentworth, 10 N. J. Law, 241; Jackson v. Leggett, 5 Wend. (N. Y.) 83; Taylor v. Standard Brick Co., 66 Ohio St. 360, 64 N. E. 428; Peterson v. Dillon, 27 Wash. 78, 67 Pac. 397; New York Mut. L. Ins. Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909, 36 L. Ed. 706; Benge's Adm'r v. Fouts, 163 Ky. 796, 174 S. W. 510. Here the defendant Nichols was employed by the defendant Sun Publishing Company. He wrote the libelous article and had it printed in the paper published by the Sun Publishing Company. The issue and the evidence being the same, and it not appearing that a joint trial would place plaintiff in a position not occupied by his adversaries, or would probably give them an undue advantage in the trial, we cannot say the trial court abused its discretion in ordering the two cases tried together. [2] 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 allegation. The statute (section 2438b, Kentucky Statutes 1915) prescribing the effect of a retraction in case of libel, is as follows: or omitted to request retraction, further pro- 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 fendant wrote and procured said article to be instructs you that the law presumes that depublished 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); and you "1. Effect of Retraction. That in any civil will at least find for plaintiff nominal damages. And the court further instructs you that you action for libel, charging the publication of an erroneous statement, alleged to be libelous, it may, or may not, in the exercise of your sound shall be relevant and competent evidence for ei-discretion, in addition to the compensatory damther party to prove the fact that the plaintiff ages above mentioned, assess such exemplary or requested retraction or omitted to request re- punitive damages as you may think right and proper under the facts proven in this case, unfacts stated and mentioned to you in instrucless you shall believe, from the evidence, the tion No. 3 herein. traction. "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 issue of the newspaper or publication did publish a sufficient correction, retraction, explanation or rectification, as conspicuously and publicly as that in which said alleged libelous statement 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. "Upon proof of such facts, the plaintiff shall not be entitled to punitive damages; and the defendant shall be liable only to pay actual damAnd upon the publication of such correction, retraction, explanation or rectification, the defendant may plead same in mitigation of damages. "2. Repealing 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 "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 murdermitigation of damages, if any, you find for the ing him, then you may consider these facts in 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' to 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.' 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 the plaintiff, and did not in a wanton and reckless disregard of plaintiff's right publish said article of and concerning the plaintiff. While there are numerous cases holding that, on the question of malice, any competent evipublication was made in good faith and undence legitimately tending to show that the der belief in its truth is admissible (State v. Clyne, 53 Kan. 8, 35 Pac. 789; People v. Stark, 59 Hun, 51, 12 N. Y. Supp. 688, affirmed in 136 N. Y. 538, 32 N. E. 1046), we are not aware of any case going to the extreme laid down in the instruction complained of. It does not require belief, upon reasonable grounds, in the truth of the charge contained in the libelous article, but mere belief, upon reasonable grounds, that the plaintiff is the person accused of the crime. To publish of one that it is rumored that he has committed a murder is, in effect, to charge him with murder; and we are unable to see how belief in the fact that the person, concerning whom the charge is made, is the person ac While, under the facts in the particular cases, this court has apparently approved instructions imposing upon tue 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 (Tanner v. Stevenson, 138 Ky. 578, 128 S. W. 878, 30 L. R. A. [N. S.] 200; Pennsylvania Iron Works Co. v. Henry Vogt Machine Co., 139 Ky. 497, 96 S. W. 551, 29 Ky. Law Rep. 861, 8 L. R. A. [N. S.] 1023; Nicholson v. Merritt, 109 Ky. 369, 59 S. W. 25, 22 Ky. Law Rep. 914; Nicholson v. Merritt, 67 S. W. 5, 23 Ky. Law Rep. 2282; Reid v. Sun Publishing Company, supra); and this presumption of malice remains throughout the entire case until it is rebutted by proof of a contrary motive or of the truth of the matter published (Riley v. Lee, 88 Ky. 614, 11 S. W. 713, 11 Ky. Law Rep. 586, 21 Am.cused, can in any way affect the question of St. Rep. 358; Courier-Journal Company v. Sallee, 104 Ky. 341, 47 S. W. 226, 20 Ky. Law Rep. 634). [3, 4] Instruction No. 1 is in accord with these opinions, and tells the jury that the law implies malice and authorizes a finding of both compensatory and punitive damages. It goes further, however, and denies the right to find punitive damages if the jury believe the facts set out in instruction No. 3. In other words, the court holds, as a matter of law, that no punitive damages should be allowed if the defendant had received such information as would lead a reasonably prudent person to believe, and the defendant did believe, malice. We therefore conclude that instruction No. 3 is erroneous. On another trial the court will omit this instruction, and will also omit from instruction No. 1 the concluding words, "unless you shall believe from the evidence the facts stated and mentioned to you in instruction No. 3 herein," and substitute therefor the words, "unless you shall believe from the evidence that the publication of the article was made without malice, in which event you will not find any punitive damages against the defendant." Judgment reversed, and cause remanded for a new trial consistent with this opinion. All concur. HUGHES et al. v. BUTLER et ux. (No. 468.) A verdict clearly and fully supported by the evidence, though conflicting, will not be reversed on appeal. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.j Appeal from District Court, Harris ty; A. R. Hamblen, Special Judge. Appeal from District Court, Harris County; A. R. Hamblen, Judge. Suit by Anderson Colbert and wife against M. L. Hughes and another. Judgment for plaintiffs, and defendants appeal. Affirmed. Stanley Thompson, of Houston, for appellants. W. F. Carothers and R. A. Davis, both of Houston, for appellees. HIGGINS, J. Colbert and wife sued to recover the title and possession of certain Coun-premises in the city of Houston, conveyed by them to M. L. Hughes and J. J. Lyles by deed dated February 28, 1910, and to cancel the deed of conveyance. The interest of Lyles subsequently passed to Hughes. It was alleged that the property was the homestead Action by L. Butler and wife against M. L. Hughes and another. Judgment for plaintiffs, and defendants appeal. Affirmed. Stanley Thompson, of Houston, for appellants. W. F. Carothers and R. A. Davis, both of Houston, for appellees. of Colbert and his wife at the time it was conveyed, and, while the deed upon its face was absolute, it was, in fact, intended as a mortgage, and was given to secure the repayment of a loan of $100 made by the grantees to the grantors. It was further alleged that the loan had been repaid. In response to a special issue submitted to the jury it was found that the conveyance in question was intended by the parties thereto as security for a loan; whereupon judgment was rendered in accordance with the prayer of the petition. HIGGINS, J. Butler and wife sued to recover the title and possession of certain premises in city of Houston, which were conveyed by them to M. L. Hughes and J. J. Lyles on March 28, 1910, and to cancel the deed of conveyance. The interest of Lyles subsequently passed to Hughes. It was alleged that the property was the homestead of Butler and his wife at the time it was conveyed, and, while the deed upon its face The only question presented by this apwas absolute, it was, in fact, intended as a peal is the sufficiency of the evidence to mortgage, and was given to secure the re-support the finding of the jury upon the ispayment of a loan of $75 made by the gran- sue indicated. We have carefully examined tees to the grantors. It was further alleged the facts, and the conclusion is reached that that the loan had been repaid. In response the evidence abundantly supports the finding. to the only issue submitted to the jury, it It will serve no purpose to state the same in was found that the conveyance in question detail. The issue of veracity between the was intended by the parties thereto as se- defendants and plaintiffs was sharply joined curity for a loan; whereupon judgment was and by the jury resolved in the latter's favor rendered in favor of appellees as prayed for.a conclusion which this court deems clearThe only question presented by this ap- ly and fully supported by the evidence. peal is the sufficiency of the evidence to support the jury's findings. We have carefully examined the facts, and the conclusion is reached that the evidence abundantly supports the finding. It will serve no purpose to state the same in detail. The issue of veracity between the defendants and plaintiffs was sharply joined, and by the jury resolved in the latter's favor-a conclusion which DICT ON CONFLICTING EVIDENCE. A verdict clearly and fully supported by the evidence, though conflicting, will not be reversed on appeal. Affirmed. HOUSTON TRANSP. CO. v. PEDEN IRON ISSUES. - In an action on a note, with a prayer by the indorser that on judgment for plaintiff he have judgment over against his codefendant, a judgment for plaintiff not disposing of the prayer for judgment over was not a final appealable judgment, so that an appeal therefrom would be dismissed. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 429, 432, 433, 450, 456, 457, 494-500; Dec. Dig. 80.] Error from District Court, Harris County; Wm. Masterson, Judge. Suit by the Peden Iron & Steel Company against the Houston Transportation Com[Ed. Note.-For other cases, see Appeal and pany and John G. Tod, with prayer by deError, Cent. Dig. §§ 3935-3937; Dec. Dig. fendant Tod that on judgment for plaintiff 1002.] he have judgment over against his codefend & HARPER, C. J. Plaintiff, Peden Iron Steel Company, brought this suit against the Houston Transportation Company and John G. Tod, defendants, upon certain notes for principal, interest, and attorney's fees. The Houston Transportation Company answered by general denial, and, specially, that the charge of 10 per cent. attorney's fees is unjust, etc. Defendant John G. Tod answered by general denial, and pleaded specially that, if he is liable at all on the notes sued on, it is as indorser thereof, and that therefore he prays that, if any judgment be rendered in favor of plaintiff and against the defendants, he have judgment over against his codefendant, the Houston Transportation Com pany. The judgment rendered is as follows: "Be it remembered that on this, the 13th day of October, 1913, came on to be heard the above numbered and entitled cause, and came the plaintiff, Peden Iron & Steel Company, and announced ready for trial, and also came the defendant Houston Transportation Company, by its attorneys, and announced ready for trial, and also came the defendant John G. Tod, in person, and announced ready for trial, and the defendants in open court withdrew their demand for a jury, and all matters of fact and law were submitted to the court, and the court, having heard the pleadings and evidence, is of the opinion that the defendants are jointly and severally indebted to the plaintiff in the sum of fourteen hundred and six and 72/100 ($1,406.72) dollars, which amount plaintiff is entitled to recover from said defendants, jointly and severally, with interest from date at the rate of eight per cent. (8%) per annum. "It is therefore ordered, adjudged, and decreed by the court that plaintiff, Peden Iron & Steel Company, do have and recover of and from the defendants, Houston Transportation Company and John G. Tod, jointly and severally, the sum of fourteen hundred and six and 72/100 ($1,406.72) dollars, with interest from date at the rate of 8 per cent. per annum and all costs of suit, for which let execution issue." with the business portion of the city was not built cannot, the grantors not having built the viaduct, rescind on the ground of misrepresentations contained in the deed platting the property, which recited that a viaduct was to be constructed and granted the city a right of way for the building of a viaduct and waived any damages which might accrue, for it appeared that the city, and not the grantors, were to build a viaduct. Purchaser. Cent. Dig. §§ 38, 40-43, 66; Dec. [Ed. Note.-For other cases, see Vendor and Dig. 33.] 2. VENDOR AND PURCHASER ~33 SION-GROUNDS. RESCIS Where a vendor subsequently agreed with a city for the construction of a viaduct on the that there then existed a contract for the conproperty sold, a statement at the time of the sale struction of the viaduct is no ground for rescission. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 38, 40-43, 66; Dec. Dig. 33.] 3. VENDOR AND PURCHASER 110-SALESRESCISSION. Where the agent of a landowner represented to purchasers of property in a subdivision that a viaduct leading to the business portion of the city would be subsequently constructed, a breach of that agreement does not warrant rescission unless it was made with intent to deceive and defraud. [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 196, 197; Dec. Dig. 110.] 4. VENDOR AND PURCHASER 33-RESCIS SION-ACTIONS-EVIDENCE. In a suit, where it was sought to rescind a purchase of land on the ground of misrepresentations as to future actions, held, that such misrepresentations were not fraudulently made so as to warrant rescission. [Ed. Note.-For other cases, see Vendor and Purchaser. Cent. Dig. §§ 38, 40-43, 66; Dec. Dig. 33.] Appeal from District Court, Dallas County; Kenneth Foree, Judge. Action by L. W. Campbell, Jr., and others against George W. Barnes and wife and John O. Mitchell, copartners doing business as Barnes & Mitchell, and others. From an order granting plaintiffs a temporary injunction, defendants appeal. Injunction dissolved. Cockrell, Gray & McBride, of Dallas, for appellants. Muse & Muse and L. W. Campbell, all of Dallas, for appellees. It will be noted that the decree does not dispose of Tod's plea for judgment over against the Houston Transportation Company in case judgment is rendered against him, without which it is not a final judg-order of the Forty-Fourth district court of ment. Cook v. Fore, 37 S. W. 970; Florence v. Choice et al., 124 S. W. 436. The appeal is therefore dismissed. RAINEY, C. J. This is an appeal from an Dallas county granting a temporary injunction to appellees against appellants in an action wherein L. W. Campbell, Jr., and Campbell-Harris Lumber Company sued George W. Barnes and wife, Madge Barnes, and John O. Mitchell, a partnership under the name of Barnes & Mitchell, and Ben T. Seay and Tom E. Cranfill, doing business as partners under the name of Seay-Cranfill Company, the Dallas Trust & Savings Bank, and J. D. Robinson, the object of the suit being to rescind a contract for the sale of land situated in the city of Dallas, said contract hav |