Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-10-20

IN.
petition or proceediEg addressed to
such tribunal, will render that rub
LEGATION, petition or proceeding libeiloas
in its character and actionable, and
will subject the author and publisher there
of to all the consequences of libel.n The
question of malice Is to be submittedto the
jury on the face OF the publication. Vid.
White VS.. Nichols, Is Cent, $50; Cooley's
Com. Tenn, Az, ct seq. Applying these
principles to the question raised by the de-
PENDANTS demurrer, the court could easily
discern, upon inspection of the publication
in this case, 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
proceeding make it privileged if it contained
within itself intrinsic evidence that it was
not uttered with good motives or for iustif-
able ends. We hold that the court commit
ted no error in disallowing the demurrer in
this case.
III. We cannot interfere with the discre-
ton of the jury upon the argument that the
damages assessed in this case are excessive.
We intimate no opinion upon that point:
but, as the defendants are to have the bene-
fit of new trial, We content ourselves with
stating some general rules upon that sub
ject. The rule in such cases is that the ac-
tual damages are to be assessed upon care
full consideration of the charge against the
plaintiff, the circumstances of the publica-
ton, the extent of the circulation and the
natural and necessary consequences of such
publication according to the results of
human experience.-Hil. on Rem. Torts.,
456. This principle was, in substance, en-
bodied in the charge of the court to the
jury. Upon this subject, the Supreme
Court of the United States, in Day VS..
Wordsworth, Is, How. 1863, uses the follow
ing language: "a jury may inhict what are
called exemplary, primitive or vindictive
damages upon defendant, having in view
the enOrmity Of has offence rather than the
measure of compensation to the plaintiff
We are aware that the propriety of this doc
trine 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 as libel, SANDER and seduction,
the wrong done to the plaintiff is incapable
OF being measured by money standard,
and the damages assessed depend on the
circumstances, showing the degree of moral
turpitude or atrocity of the defendants
conduct, and may properly be called ex-
emplary or yindictive rather than COM
pensatory." There is no doubt, said Lord
Mansfield, 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
SANDER suits the rule is peculiarly applica-
bic. Motions for new trials in these cases
are greatly discountenanced. Next to ac-
tons for Grim. con. the courts have surren-
dered them to what Lord c. j. DeGray
calls the despotic power of jury CIR. IL
Wat, 425, SIS.
But we hold that there are certain cardi-
nal rules upon this subject which the court
| and jury must not lose sight of. While it
is true that the citizens cannot be compen-
sated in money for the injury done to his
family by an atrocious libel or SANDER, yet
the gist of the action is the malice, the
temper and disposition with which the pub
lication is made. The guilt, says Chancel-
lor Kent, and the essential ground of action
for defamation consists in the malicious in
tention, and when the mind is not at fault
no prosecution can be sustained:-I Kent
comm. 634. But there are two kinds of
malice, one or both of which may exist in
every hbelOus publication. These are actu-
al malice or ill will to the party DETAINED,
which may be shown to exist at the
time of the publication and malice in law,
Cd
which is libelous upon its face, mean by
libelous, such as is injurious and defamatory
and not within the class of privileged pub
LEGATIONS heretofore discussed in this opin-
ion. The damages should be assessed
therefore, with reference to this distinction.
A reckless incaution on the part of a pub
Usher is punishable in damages according to
the circumstances attending it, and the in
jury likely to result to the plaintiff. Hence
it is held that such publication is action
able against all the publishers alike, though
some of them NAV have been ignorant of
it, and though those who published it
were not personally known to the
party libeled. But the existence of actual
malice against the party injured may be
considered in aggravation of damages as its
co-existence may be weighed by the jury
in mitigation thereof And these consider
ations 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
United States already cited, that the dam
ages assessed should depend upon the cir
cumstances showing the degree of moral
turptude or atrocity of the defendants con
duct.
TO BE CONTINUED.