The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-06-04
OUR OWN LIBEL SUIT.
The Supreme Court Says the
Court Below Erred.
AND THE CASE is REMANDED.
''The Disgrace to Justice"-The Big sulphur
Suit is Also Sent Back-0ther
Judicial DOings.

Suit is Also Sent Back-0ther
Judicial DOings.
The supreme court met yesterday at p.
m, Chief Justice Sanford and Associate
Justices Henderson, Anderson and Judd
occupying the bench. The first business
to occupy their attention was the case of
Charles L. Lowe VS.. THE HERALD company,
which had come up on appeal from Judge
Zanes court, the plaintiff having been
awarded a verdict for 5000, on the charge
of libel. Chief Justice Sanford read the
opinion of the court as follows:
This is an appeal from the Judgment against
the defendant and from an order denying the
motion for a new trial. The action was brought
against the defendant, a corporation publishing
in the city of salt Lake q newspaper known as
THE SALT LAKE DAILY HERALD, 10 recover
Judgment for having, as the plaintiff alleges
published false, scandalOus, malicious and libel
GUS matters concerning the plaintiff.
The libel, as set out IN the complaint charged
that the defendant committed adultery with
female a half-witted girl; that from the current
report of the affair, il seemed to be 4 premedi-
tated case Of beastly rape. 1t is not necessary
TO state it in detail. The plaintiff alleged that
by the publication he had suffered greatly in his
reputation and character. The defendants, in
the If answer, denied that the publication was
false or malicious or that it was intended so TO
be; that the said publication was true; that It
had been published in this paper as an item OF
news IN its zual course OF business,
WITHOUT MALICE OR ILIwuI,
and without any intent to defame or iniure the
plaintiff, but wi full belief IL the truth OF the
statement.
The defend mt contends that on this appeal
that certain rulings made on the trial, and to
which exceptions were taken, were erroneous.
These were, the exclusion OF the details OF the
complaint made by the female shortly after the
occurrence, the ADMISSION of evidence tending
10 show the plaintiffs good character at other
places than where it was attacked by the evil
dence offered by the defendant; to the charge TO
the jury, and to the verdict rendered, on the
ground that it was excessive. The fact of publ
cation by the defendants in their newspaper of
the statement relative TO the plaintiff, was ad-
mitted.
There is no doubt but that the published &C
count was unqueStionably a libel. It tended TO
blacken The reputation of the plaintiff and ez-
pose him to public contempt. II accused him Of
a crime for which he could have been indicted
and punished by law.
No person of ordinary intelligence can read the
publication complained OF ana resist the conClu-
sion that il charged grave offence upon the
plaintiff. An editor or publisher Of = newspaper
has right TO publish the fact that an individual
has been arrested and upon what charge, but he
has no right TO assume that the person is guilty,
or to hold him out 10 the world as Sucn.
1t was, in fact inmaterial whether charge
OF adultery or OF rape was made.
THE QUESTION FOR THE JURY
was not whether 1t was one kind Of felony or an
other, but whether the publication was true rs
asserted by the defendant. The court instructed
the jury as TO what constituted the crime OF
rape, and 1t is claimed on appeal that this was
error, such instruction being inapplicable TO this
case. 1t was not perhaps exactly applicable.
yet 1t did not and could not niSlead the Jury.
In other portions OF the charge the learned Judge
correctly laid down the law, and we find no er
of which defendant cnIDDialn this
pect.
During the trial the court received evidence
tending to show that the woman had made
complaint or statement Of the act that plaintiff
had committed on her person, but refused TO al
low the defendants to go into the particulars or
details OF her statement. 1t is urged that the
witness should have been allowed to give the
precise language used in full, but we can see no
error in thus limiting the testimony. It was
sufficient TO indicate the character Of the alleged
act, and the omission of the full particulars
caused no injury 10 the appellants.
IT Is ARGUED
that because the court charged the Jury that
they should receive the testimony OF Elizabeth
Grant witness examined by the appellants
with caution, and scrutinize it carefully, it was
error. It had appeared that she was weak
minded girl. possessing but little Intelligence
We do not find that there was any error on this
point. A judge may if necessary, single out a
particular witness and charge the jury as to his
credibility
A further ground OF error is urged that the
damages were excessive, but the rule is well
set lei that in actions Of this kind a new trial
will not be granted for this reason. Il is the
special province of the jury TO decide such cases
under instructions from the court.
The damages are to be fixed by the Jury upol
a careful consideration OF the charge made by
the defendant, the circumstances of its publca-
ton, the extent OF its circulation and the natural
consequences of such publication.
Exception is taken to that portion of the
judges charge where he said: And if you find
70 -ll To
the fact that the defendant has alleged the
charges TO be true in its answer and attempted
TO prove them true on this trial as enhancing
damages, and as evidence or malice, unless you
believe from the evidence that the allegation of
the truth of such charges was made il good
faith. and with reasonable expectation of prov
ing them, and such attempt TO prove was also
made with a like expectation and in good faith"
Under this instruction the jury was left, and we
think properly left, to pass on
THE QUESTION INVOLVED
in Justification. The law gives TO the defend
ant right in his answer 10 allege the truth of
the matter charged as defamatory. If he exer
ciSeS this right in good faith, under an honest
belief in the truth OF his allegation ne is not to
suffer the penalty of exemplary damages; but if
the jury find it was averred OF record with in
tent to iniure the plaintiff, they may rightfully
consider it as al aggravation OF the injury. The
rule laid down in Zero VS.. Roscoe "a n. Y. 1861
and Farley VS.. Ranck q Watts g. Sar. $50 has
been somewhat modified In Rayner VS.. Kin
which SustsinS the instruction of the court in
this respect. If the defendant satisfies the jury
that he
WAS NOT ACTUATED BY MALICE,
but published what he did believing it to be
true, that should be considered in mitigation of
the damages.
See also, Distin VS. Rose, 6S N Y. 129-Ies
The defendants in their answer deny that the
plaintiff had suffered in his reputation or char
acter, and testimony presented by them
tending TO show his general character The |
court in its rulings on this point, said: 1.-THE |
question as to which there seems to be some |
con trOversy is as to whether the plaintiff had |
authorized the defendant 70 attack the general |
reputation Of the plaintiff in all respects, or |
whether it is to be confined to the particular |
side OF his character, so TO speak, attacked. The
general rule would be that he would be confined |
to the particular matter involved IN the charge.
= This charge, however, of rape is a
pretty broad one. 1t is a very serious one, and |
it involves more than q mere libel as stating
that man has committed perjury. because
rape not only attacks a mans reputation for
chastity and virtue, but 1t attacks him as an
orderly and law-aOiding man. am
not clear that 70 charge a man with rape does
not involve his moral character. Certainly ii |
involves that so far as it relates to his being
man Of chastity and virtue, and so far as being
an orderly and quiet man; but should be in
clined to hold that it would not be proper to go
into an inquiry as to what his reputation was as
being truthful man, or what his reputation
was as TO honesty and integrity in business
matters, but to confne it to his general reputa-
ton as a man of chastity and virtue, and as an
orderly and lawabiding man"
TO THIS RULING EXCEPTION WAS TAKEN
by the defendants, and thereafter testimony on
this point was limited TO general reputation of
the plaintiff in regard to chastity and good NOR
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