Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1871-10-19

Is Cant, 446. With respect to words used in
course of judicial proceedings, it has beer
ruled says Lord Eldon, that they are protected
by the occasion, and cannot form the founda
tion of an action without proof of express
malice. johnson VS.. Evans, Esp. 81. And in
Hodgson VS. Scarlet it is said by Holroy j
speaking of the words of counsel in the argu-
ment of cause IF they be fair comments
upon the evidence, and relevant to the matter
IN issue, then, unless malce be shown, the oc-
cason justiies them. ! BAN. and Aid. 247. Is
Cant 446.' Abbott j.. in the same cause re-
marks; Il am of opinion that no action can be
maintained unless it can be shown that the
counsel availed himself of his situation mali
ciously to utter words wholly unjustifable. Id.
In the case of Delegal VS. Highly Bing n. G..
$50, Tindal, G. j. said: 1T is an established
principle upon which the privilege of publish
ing the report of any judicial proceeding is ad-
mitted to rest that such report must be strictly
confined to the actual proceedings in Court,
and must contain no defamatory observations
or comments from any quarter whatever in ad-
dition to what forms strictly and properly the
legal proceedings" These doctrines of the
English courts have long been recognized and
followed in this country, aud we consider it to
be the settled law here, AS stated BY the Su-
preme Court of the United States, in the case
of White VS. Nichols, 8 How. 966 that malice
may be proved, though alleged to exist in the
proceedings before court or legislative body
or other tribunal may have besn the appro-
pirate authority for redressing the grievance
represented to it, and that proof of express mall
ice in any written publication, petition or pro-
ceeding addressed to such tribunal will render
that publication, petition or proceeding libel
lous in its character, and actionable, and
will subject the author and publisher thereof
to all the consequences of libel" The ques-
tion of malice is to be submitted to the
jury on the face of the publication. White
VS. Nichols, Is Cent 450; Cooley Com. Tenn,
442, ct seq. Applying these principles to the
the court could easily discern, upon inspection
of the publication IN this ease. whether it falls
within the class of publications protected by the
law. The mere recitation in the introduction
that it was proceeding in court does not make
it so, nor would the fact that it was such pro-
ceeding make it privileged if it contained with
in itself intrinsic evidence that it was not uttered
with good motives or for justifable ends. We
hold that the court committed no error in dsal-
lowing the demurrer in this case.
Ill. We can not interfere with the discretion
of the jury upon the argument that the damages
assessed in this case are excessive. We init
mate no opinion upon that point; but, as the
defendants are to have the benefit of new trial,
we content ourselves with stating some general
rules upon that subject The rule in such cases
is that the actual damages are to be assessed
upon careful consideration of the charge
against the plaintiff, the circumstances of the
publication, the extent of the circulation and
the natural and necessary consequences of such
a publication according to the results of human
Aperience-Hil. on Rem. Torts., 456. This
principle was, in substance, embodied in the
charge of the court to the jury. Upon this
subject, the Supreme Court of the United States
in Day VS. Wordworth, 13, How. 1853, uses the
following language; IA jury may inhict what
are called exemplary, primitive or vindictive
damages upon defendant, having in view the
enoyDtity Of his ofense rather than the measure
of compensation to the plaintiff. We are
aware that the prOpriety of this doctrine
has been questioned by some writers but if
repeated judicial decisions for more than
century are to be received as the best
exposition of what the law is, the question will
not admit of argument. In many civil actions,
such libel, SANDER and seduction, the wrong
done to the plaintiff is incapable of being meas
ured by a money standard, and the damages
assessed depend on the circumstances, showing
the degree of moral Gurpitude or atrocity of the
defendants conduct and may properly be call
ed exemplary or vindictive rather than COM
pensatory.'' There is no doubt, said Lord Mans
field that the court has the power of taking the
opinion of another jury in any case where the
damages were excessive; but all these questions
depend on their own circumstances, on which
the court would exercise its discretion. Unless
the damages are unreasonable beyond measure,
the courts will never interfere. To libel and
slander suits the rule is peculiarly applicable.
Motions for new trials in these cases are greatly
discountenanced. Next to actions for GRIM
con. the courts hBve surrendered them to what
Lord G. J. DeGray calls the despotic power of
a jury CIR & Wat, 425, 426.
But we hold that there are certain cardinal
rules upon this subject which the court and jury
must not lose sight Of While it is true that the
citizen cannot be compensated in money for the
injury done to his family by an atrocious libel
or sander, yet the gist of the action is the NAL
ice, the temper aud disposition with which the
publication is made The guilt, says Chancel-
Tor Kent and the essential ground of action for
defamation consists in the malicious Intention
and when the mind is not at fault no prosecu-
tion can be sustained.-I Kent Comm 634 But
there are two kinds of malice, one or both of
which may exist in every libelOus publication.
These arc actual malice or personal i'll will to
the partydefamed, which may be shown to exist
at the time of the publication, and malice in
law, which is presumed from every publi-
cation which is libelous upon its face.
rious and defamatoIy and not within the
class of privileged publications heretofore dis
cussed in this opinion. The damages should be
assessed, therefore, with reference to this dis
tinction, A reckless incaution on the part of
publisher is punishable in damages according to
the circumstances attending it, and the injury
likely to result to the plaintiff. Hence it is held
that such a publication is actionable against all
the publishers alike, though some of them may
ia osO uOcH lSHOTdHG Vi III, AuU GhOuSA thOsc WIiO
published it were not personally known to the
party libeled But the existence of actual
malice against the party injured may be con-
sldered In aggravation of damages as its nom
existence may be weighed by the jury in miti-
CATION thereof And these considerations
should be impressed upon the minds of the
jury in all actions of this character. Upon this
subject we may safely repose upon the doctrine
of the Supreme Court of the U. S. already
cited, that the damages assessed should depend
upon the circumstances showing the degree of
moral turpitude or atrocity of the defendants
conduct .."
". The next error assigned is the introduc
ton as evidence by the plaintiff of the article
copied by the defendants from the Cincinnati
Enquirer. 1t will be remembered that this ar
ticle was published on the 18th of January,
1871, about four months after this action was
begun. and that it was submitted to the jury in
evidence over the objections of the defendants.
There is perhaps no subject treated in the books
upon which there has been a greater diversity
of judicial ruling than the question whether a
plaintiff in an action of libel can, for the pur-
pose of showing the oMo aiifto and intent of