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plies in a case of master and servant, its damages until rebutted by proof of a contrary application is in a more restricted sense than motive or of the truth of the matter published. in a case of carrier and passenger, because slander, Cent. Dig. $$ 350, 351'; Dec. Dig. Oms

[Ed. Note.-For other cases, see Libel and of the difference in the degree of care im- 120.] posed and in the character of defenses that 4. LIBEL AND SLANDER Cm62—MALICE-PREmay be made. Therefore it is generally held

SUMPTION-BELIEF-DEFENSE. in a case of master and servant that the in- While belief in good faith in the charge ference of negligence is deducible, not from made is a defense to the presumption of malice the mere happening of the accident, but from raised by the charge, the mere belief of defend

ant, upon reasonable grounds, that plaintiff is the attending circumstances. Consequently, the person accused of the crime, is insufficient, the mere breaking of a piece of apparatus since it in no way tends to disprove malice in is not of itself sufficient to make out.a prima making the charge. facie case. The attendant circumstances slander, Cent. Dig. $$ 162, 163, 317; Dec. Dig.

[Ed. Note. For other cases, see Libel and must show that the apparatus was defective, C62.] and that this fact was known to the master, or could have been known to him, by the ex

Appeal from Circuit Court, McCracken ercise of ordinary care. Lile v. Louisville County. Railway Company, 161 Ky. 347, 170 S. W. Action by John Randolph Reid against Bell 936. Nor is the question affected by the as- Nichols for libel. There was judgment for surance of safety.

plaintiff for one cent and costs, and plaintiff [3] An assurance of safety does not im- appeals. Reversed. pose upon the master absolute liability, re- D. G. Park, of Paducah, for appellant. gardless of the question of negligence. It Berry & Grassham, of Paducah, for appellee. bears only on the question of assumed risk, or of contributory negligence, and, where the

CLAY, C. In this action for damages for master is negligent, renders such pleas ineffective to prevent a recovery, unless the of the defendant, Bell Nichols, a verdict and

libel, plaintiff John Randolph Reid, recovered danger is so obvious that an ordinarily pru- judgment for one cent and costs. Reid apdent person would refuse to do the work,

peals. There being no evidence of negligence, the

Briefly stated, the facts are these: One peremptory instruction was proper.

Marshall T. Finley was found dead, and Bell Judgment affirmed.

Nichols, a reporter for the Paducah Evening
Sun, wrote an article which was published

in that paper on August 5, 1913, which, in REID y. NICHOLS.

substance, charged plaintiff, John Randolph (Court of Appeals of Kentucky. Oct. 27, 1915.) Reid sued the Sun Publishing Company, the

Reid, with the murder of Finley. Thereupon 1. APPEAL AND ERROR E969—TRIAL Em2- owner of the paper, for damages. The trial

ACTIONS-TRIAL TOGETHER-DISCRETION OF
COURT.

resulted in a verdict and judgment in his faThe action of the trial court in ordering a vor for one cent and costs. On appeal to this suit for damages for libel against a newspaper court the judgment was reversed, and the company to be tried with a suit for libel against a reporter of the paper based on the same is cause remanded for a new trial, in an opinion sues was not error, where it does not appear which may be found under the title of Reid that plaintiff was prejudiced in any way, since v. Sun Publishing Company, in 158 Ky. at the consolidation of cases involving the same issues lies in the discretion of the trial court, and page 727, 166 S. W. 242, and which sets out its exercise will not be disturbed on appeal, ex- at length the libelous article complained of. cept for clear abuse.

After the reversal plaintiff brought this ac[Ed. Note. For other cases, see Appeal and tion. Over the objection of plaintiff, the casError, Cent. Dig. $$ 3845-3848; Dec. Dig. Om 969; Trial, Cent. Dig. $$ 3-5; Dec. Dig. Eems The trial resulted in a verdict and judgment

by . 2.] 2. LIBEL AND SLANDER Cw104_RETRACTION for $400 against the Sun Publishing Company --STATUTE-CONSTRUCTION.

and in the verdict and judgment against Ky. St. 1915, § 2438b, prescribing the ef- Nichols above indicated. fect of retraction in cases of libel, does not con- [1] The first question presented is: Did the fer on the plaintiff the right to show failure to trial court err in ordering the two cases to retract for the purpose of aggravating punitive damages, but extends the privilege of showing be tried together? Plaintiff insists that, as retraction only to defendant for the purpose of the actions were separate, he had the right defeating such damages.

to have a separate trial as to each' defendant. [Ed. Note. For other cases, see Libel and The rule seems to be well settled that where Slander, Cent. Dig. $8 284–291; Dec. Dig. Om 104.]

several actions are brought by one plaintiff 3. LIBEL AND SLANDER 120_MALICE-PRE- against different defendants, or by different SUMPTION.

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

Ky.)

REID y. NICHOLS

441

is a matter in the discretion of the court, or omitted to request retraction, further proand such discretion will not be interfered vides that the defendant may also allege and with on appeal, unless it is clearly made to give proof that the matter alleged to have appear that the discretion was abused. St. been published, and to be libelous, was pubLouis, etc., R. Co. v. Harden, 83 Ark. 255, 103 lished without malice, and that he published S. W. 614; Walker v. Conn, 112 Ga. 314, 37 s. a correction, retraction, explanation, or recE. 403; Anderson v. Sutton, 2 Duv. 480 ; Sul- tification in the manner provided by the statlivan v. Boston Electric Light Co., 181 Mass. ute. In other words, the statute confers up294, 63 N. E. 904; Worley v. Glentworth, 10 on the defendant the right to show the reN. J. Law, 241; Jackson v. Leggett, 5 Wend. traction for the purpose of defeating puni(N. Y.) 83; Taylor v. Standard Brick Co., 66 tive damages. It does not confer upon the Ohio St. 360, 64 N. E. 428; Peterson v. Dil- | plaintiff the right to show a failure to relon, 27 Wash. 78, 67 Pac. 397; New York tract for the purpose of showing malice or Mut. L. Ins. Co. v. Hillmon, 145 U. S. 285, aggravating such damages, where, as in this 12 Sup. Ct. 909, 36 L. Ed. 706; Benge's Adm'r instance, no retraction was demanded by v. Fouts, 163 Ky. 796, 174 S. W. 510. Here plaintiff. The court, therefore, did not err the defendant Nichols was employed by the in striking from plaintiff's reply the allegadefendant Sun Publishing Company. He tion referred to, or in refusing to give an wrote the libelous article and had it printed instruction based on such allegation. in the paper published by the Sun Publishing Omitting the libelous article, which is too Company. The issue and the evidence being long to be published, the court instructed the the same, and it not appearing that a joint jury as follows: trial would place plaintiff in a position not “Instruction No. 1. It is admitted by the occupied by his adversaries, or would proba- pleadings and is the undisputed evidence in this bly give them an undue advantage in the case that the defendant Bell Nichols, on the trial, we cannot say the trial court abused 5th day of August, 1913, wrote and procured its discretion in ordering the two cases tried Evening Sun the following article, to wit: [Here together.

follows the libelous article.] And the court now [2] Another ground urged for reversal is instructs you that the law presumes that de

fendant wrote and procured said article to be the alleged error of the court in striking published maliciously, or with malice and the from plaintiff's reply an allegation to the court further instructs you to find for the plaineffect that defendant failed to publish a re- tiff such sum in damages as you may believe,

from the evidence, will reasonably compensate traction within the time limit fixed by the him for injury to his character, if any, caused statute, and in refusing to give an instruction by the writing and publishing of said article based upon such allegation. The

allegation. The statute by defendant, or humiliation and mortification (section 2438b, Kentucky Statutes 1915) pre- mental anguish, if any, so caused, but not ex

to his feelings, if any of either, so caused, for scribing the effect of a retraction in case of ceeding the amount claimed in the petition, to libel, is as follows:

wit, ten thousand dollars ($10,000); and you “1. Effect of Retraction. That in any civil And the court further instructs you that you

will at least find for plaintiff nominal damages. 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, untraction. "The defendant may also allege and give proof facts stated and mentioned to you in instruc

less you shall believe, from the evidence, the that the matter alleged to have been published, tion No. 3 herein. and to be libelous, was published without malice,

"Instruction No. 2. The court further inand that the defendant in the next regular issue structs you that if you shall believe from the of the newspaper or publication, after receiving evidence that at, or previous to, the time said demand in writing or within seven days if no article was written and caused to be published such demand is made to correct and to retract of and concerning plaintiff by the defendant said statement, or in the next regular issue of Nichols, in the Paducah Evening Sun, it was the newspaper or publication did publish a suf- circulated and rumored generally in McCracken ficient correction, retraction, explanation or county, and in the city of Paducah, and in the rectification, as conspicuously and publicly as vicinity of Marshall T. Finley's home, that said that in which said alleged libelous statement Finley had been murdered, and that some of his was published in the same type and in the same near relatives had murdered him, and that plainplace in at least two successive issues of the tiff was the relative who was accused of murdersame periodical publication accompanied by edi- ing him, then you may consider these facts in torials in which the alleged slander is specifical- mitigation of damages, if any, you find for the ly repudiated.

plaintiff. “Upon proof of such facts, the plaintiff shall not be entitled to punitive damages; and the structs you that if you shall believe from the

“Instruction No. 3. The court further indefendant shall be liable only to pay actual dam- evidence that the defendant Nichols, at the time ages. And upon the publication of such cor- said article was written by him and caused to be rection, retraction, explanation or rectification, published in the Paducah Evening Sun, had rethe defendant may plead same in mitigation of ceived such information as would lead a readamages.

sonably prudent person to believe, and the de"2. Repealing Clause. All acts or parts of fendant did believe, that the plaintiff was the acts in conflict herewith are hereby repealed.” near relative who was accused of murdering It will be observed that the statute, after Marshall T. Finley, and wrote and caused to be

published said article as a matter of news, in providing that either party may prove the good faith, and without any 'actual malice toreckless disregard of plaintiff's right publish that the plaintiff "was the near relative who said article of and concerning the plaintiff, was accused of murdering Marshall T. Finthen you cannot find for the plaintiff punitive ley," and wrote and caused to be published damages as mentioned to you in instruction No. 1, but you may find for him compensatory dam- said article as a matter of news, in good ages as herein instructed."

faith, and without any actual malice towards While, under the facts in the particular the plaintiff, and did not in a wanton and cases, this court has apparently approved in- reckless disregard of plaintiff's right publish

said article of and concerning the plaintiff. structions imposing upon the plaintiff the burden of proving malice in cases of words While there are numerous cases holding that, libelous per se (Morgan v. Lexington Herald on the question of malice, any competent eviCo., 138 Ky. 637, 128 S. W. 1064), the settled dence legitimately tending to show that the

publication was made in good faith and unrule in this state is that, where the publica- der belief in its truth is admissible (State v. tion is libelous per se, the law presumes Clyne, 53 Kan. 8, 35 Pac. 789; People v. malice and authorizes a recovery of punitive Stark, 59 Hun, 51, 12 N. Y. Supp. 688, affirmdamages (Tanner v. Stevenson, 138 Ky. 578, ed in 136 N. Y. 538, 32 N. E. 1016), we are 128 S. W. 878, 30 L. R. A. [N. S.] 200; Penn- not aware of any case going to the extreme sylvania Iron Works Co. v. Henry Vogt Ma- laid down in the instruction complained of. chine Co., 139 Ky. 497, 96 S. W. 551, 29 Ky. It does not require belief, upon reasonable Law Rep. 861, 8 L. R. A. [N. S.] 1023 ; Nich- grounds, in the truth of the charge contained olson v. Merritt, 109 Ky. 369, 59 S. W. 25, in the libelous article, but mere belief, upon 22 Ky. Law Rep. 914; Nicholson v. Merritt, reasonable grounds, that the plaintiff is the 67 S. W. 5, 23 Ky. Law Rep. 2282; Reid v. person accused of the crime. To publish of Sun Publishing Company, supra); and this one that it is rumored that he has committed presumption of malice remains throughout a murder is, in effect, to charge him with the entire case until it is rebutted by proof murder; and we are unable to see how beof a contrary motive or of the truth of the lief in the fact that the person, concerning matter published (Riley v. Lee, 88 Ky. 614, whom the charge is made, is the person ac11 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. malice. We therefore conclude that instrucSallee, 104 Ky. 341, 47 S. W. 226, 20 Ky. Law tion No. 3 is erroneous. On another trial the Rep. 631).

court will omit this instruction, and will also [3, 4] Instruction No. 1 is in accord with omit from instruction No. 1 the concluding these opinions, and tells the jury that the words, "unless you shall believe from the evilaw implies malice and authorizes a finding dence the facts stated and mentioned to you of both compensatory and punitive damages. in instruction No. 3 herein,” and substitute It goes further, however, and denies the right therefor the words, "unless you shall believe to find punitive damages if the jury believe from the evidence that the publication of the the facts set out in instruction No. 3. In oth-article was made without malice, in which er words, the court holds, as a matter of law, event you will not find any punitive damages that no punitive damages should be allowed against the defendant." if the defendant had received such informa- Judgment reversed, and cause remanded tion as would lead a reasonably prudent per- for a new trial consistent with this opinson to believe, and the defendant did believe, lion. All concur.

Tex.)

HOUSTON TRANSP. CO. v. PEDEN IRON & STEEL CO.

443

Appeal from District Court, Harris County ; HUGHES et al. v. BUTLER et ux(No. 463.) A. R. Hamblen, Judge. (Court of Civil Appeals of Texas. El Paso. Suit by Anderson Colbert and wife against Oct. 14, 1915.)

M. L. Hughes and another. Judgment for APPEAL AND ERROR Om 1002--REVIEW-VER- plaintiffs, and defendants appeal. Affirmed. DICT ON CONFLICTING EVIDENCE. A verdict clearly and fully supported by the

Stanley Thompson, of Houston, for appel. evidence, though conflicting, will not be revers- lants. W. F. Carothers and R. A. Davis, both ed on appeal.

of Houston, for appellees. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3935–3937; Dec. Dig. Om HIGGINS, J. Colbert and wife sued to re1002.)

cover the title and possession of certain Appeal from District Court, Harris Coun- premises in the city of Houston, conveyed by ty; A. R. Hamblen, Special Judge.

them to M. L. Hughes and J. J. Lyles by deed Action by L. Butler and wife against M. L. dated February 28, 1910, and to cancel the Hughes and another. Judgment for plain- deed of conveyance. The interest of Lyles tiffs, and defendants appeal. Affirmed. subsequently passed to Hughes. It was alStanley Thompson, of Houston, for appel- of Colbert and his wife at the time it was

leged that the property was the homestead lants. W. F. Carothers and R. A. Davis,

conveyed, and, while the deed upon its face both of Houston, for appellees.

was absolute, it was, in fact, intended as a HIGGINS, J. Butler and wife sued to re- mortgage, and was given to secure the recover the title and possession of certain payment of a loan of $100 made by the gran

tees to the grantors. It was further alleged premises in city of Houston, which were con- that the loan had been repaid. In response veyed by them to M. L. Hughes and J. J. to a special issue submitted to the jury it was Lyles on March 28, 1910, and to cancel the found that the conveyance in question was deed of conveyance. The interest of Lyles intended by the parties thereto as security subsequently passed to Hughes. It was al- for a loan; whereupon judgment was renleged that the property was the homestead dered in accordance with the prayer of the of Butler and his wife at the time it was

petition. conveyed, and, while the deed upon its face

The only question presented by this apwas absolute, it was, in fact, intended as a mortgage, and was given to secure the repeal is the sufficiency of the evidence to

support the finding of jury the payment 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 clear

The only question presented by this ap- ly and fully supported by the evidence. peal is the sufficiency of the evidence to sup

Affirmed. port the jury's findings. We have carefully examined the facts, and the conclusion is reached that the evidence abundantly sup- HOUSTON TRANSP. CO. v. PEDEN IRON ports the finding. It will serve no purpose to

& STEEL CO. (No. 467.) state the same in detail. The issue of verac

(Court of Civil Appeals of Texas. El Paso. ity between the defendants and plaintiffs

Oct. 14, 1915.) was sharply joined, and by the jury resolved APPEAL AND ERROR Cm 80 – DECISIONS REin the latter's favor—a conclusion which VIEWABLE-FINAL JUDGMENT—DISPOSAL OF this court deems clearly and fully supported ISSUES, by the evidence.

In an action on a note, with a prayer by the

indorser that on judgment for plaintiff he have Affirmed,

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 HUGHES et al. v. COLBERT et ux.

be dismissed. (No. 470.)

[Ed. Note.-For other cases, see Appeal and (Court of Civil Appeals of Texas. El Paso.

Error, Cent. Dig. $$ 429, 432, 433, 450, 456, Oct. 14, 1915.)

457, 494-500; Dec. Dig. Om 80.] APPEAL AND ERROR Om 1002_REVIEW_VER

Error from District Court, Harris County ; DICT ON CONFLICTING EVIDENCE.

Wm. Masterson, Judge. A verdict clearly and fully supported by Suit by the Peden Iron & Steel Company the evidence, though conflicting, will not be re- against the Houston Transportation Comversed on appeal.

[Ed. Note. For other cases, see Appeal and pany and John G. Tod, with prayer by deError, Cent. Dig. $8 3935–3937; Dec. Dig. Om fendant Tod that on judgment for plaintiff 1002.]

he have judgment over against his codefendJudgment for plaintiff, and the Hous-, with the business portion of the city was not ton Transportation Company brings error. built cannot, the grantors not having built the Dismissed.

viaduct, rescind on the ground of misrepresenta

tions contained in the deed platting the propJohn G. Tod, of Houston, for plaintiff in erty, which recited that a viaduct was to be conerror. Baker, Botts, Parker & Garwood, of structed and granted the city a right of way for

the building of a viaduct and waived any damHouston, for defendant in error.

ages which might accrue, for it appeared that

the city, and not the grantors, were to build a HARPER, C. J. Plaintiff, Peden Iron &

viaduct. Steel Company, brought this suit against the Purchaser, Cent. Dig. $$ 38, 40-43, 66; Dec.

[Ed. Note.-For other cases, see Vendor and Houston Transportation Company and John Dig. Om33.] G. Tod, defendants, upon certain notes for 2. VENDOR AND PURCHASER 33 RESCISprincipal, interest, and attorney's fees. The

SION-GROUNDS. Houston Transportation Company answered Where a vendor subsequently agreed with a by general denial, and, specially, that the city for the construction of a viaduct on the charge of 10 per cent. attorney's fees is un property sold, a statement at the time of the sale

for just, etc. Defendant John G. Tod answered struction of the viaduct is no ground for rescisby general denial, and pleaded specially that, sion. if he is liable at all on the notes sued on, it

[Ed. Note.–For other cases, see Vendor and is as indorser thereof, and that therefore Purchaser, Cent. Dig. $ 38, 40-43, 66; Dec.

Dig. Om 33.] he prays that, if any judgment be rendered

3. VENDOR AND PURCHASER On 110—SALESin favor of plaintiff and against the defend

RESCISSION. ants, he have judgment over against his co- Where the agent of a landowner represented defendant, the Houston Transportation Com- to purchasers of property in a subdivision that pany.

a viaduct leading to the business portion of the

city would be subsequently constructed, a breach The judgment rendered is as follows:

of that agreement does not warrant rescission "Be it remembered that on this, the 13th day unless it was made with intent to deceive and of October, 1913, came on to be heard the above defraud. numbered and entitled cause, and came the plaintiff, Peden Iron & Steel Company, and Purchaser, Cent. Dig. $$ 196, 197; Dec. Dig.

[Ed. Note.-For other cases, see Vendor and announced ready for trial, and also came the defendant Houston Transportation Company, by

Om 110.] its attorneys, and announced ready for trial, and 4. VENDOR AND PURCHASER 33-RESCISalso came the defendant John G. Tod, in person,

SION-ACTIONS-EVIDENCE. and announced ready for trial, and the defend

In a suit, where it was sought to rescind ants in open court withdrew their demand for a a purchase of land on the ground of misreprejury, and all matters of fact and law were sub- sentations as to future actions, held, that such mitted to the court, and the court, having heard misrepresentations were not fraudulently made the pleadings and evidence, is of the opinion so as to warrant rescission. that the defendants are jointly and severally in- [Ed. Note.-For other cases, see Vendor and debted to the plaintiff in the sum of fourteen Purchaser, Cent. Dig. $$ 38, 40-43, 66; Dec. hundred and six and 72/100 ($1,406.72) dollars, Dig. Om 33.] which amount plaintiff is entitled to recover from said defendants, jointly and severally, with

Appeal from District Court, Dallas Couninterest from date at the rate of eight per cent. ty; Kenneth Foree, Judge. (8%) per annum.

Action by L. W. Campbell, Jr., and others "It is therefore ordered, adjudged, and decreed by the court that plaintiff, Peden Iron & Steel against George W. Barnes and wife and John Company, do have and recover of and from the 0. Mitchell, copartners doing business as defendants, Houston Transportation Company Barnes & Mitchell, and others. From an orand John'g. Tod, jointly and severally, the der granting plaintiffs a temporary injuncsum of fourteen hundred and six and 72/100 ($1,406.72) dollars, with interest from date at tion, defendants appeal, Injunction disthe rate of 8 per cent. per annum and all costs solved. of suit, for which let execution issue."

Cockrell, Gray & McBride, of Dallas, for It will be noted that the decree does not dispose of Tod's plea for judgment over bell, all of Dallas, for appellees.

appellants. Muse & Muse and L. W. Campagainst the Houston Transportation Company in case judgment is rendered against

RAINEY, C. J. This is an appeal from an him, without which it is not a final judgment. Cook v. Fore, 37 S. W. 970; Florence order of the Forty-Fourth district court of

Dallas county granting a temporary injuncv. Choice et al., 124 S. W. 436. The appeal is therefore dismissed.

tion 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 0. BARNES & MITCHELL et al. v. CAMPBELL Mitchell, a partnership under the name of

et al.
(No. 7467.)

Barnes & Mitchell, and Ben T. Seay and Tom (Court of Civil Appeals of Texas. Dallas. E. Cranfill, doing business as partners under July 3, 1915. Rehearing Denied

the name of Seay-Cranfill Company, the Oct. 16, 1915.)

Dallas Trust & Savings Bank, and J. D. 1. VENDOR AND PURCHASER 33 SALE RIGHT TO RESCIND.

Robinson, the object of the suit being to A purchaser of a tract of land who knew rescind a contract for the sale of land situat the time that a viaduct connecting the lots ated in the city of Dallas, said contract hav

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