The Birmingham age-herald., 1907-05-29

the statutory provision that five days notice must be filed with any newspaper before said newspaper can be sued for libel is null and void in so far as suits for actual damages are concerned. It does not apply at all except to newspa- pers, and evidently not to these save in punitive damage allegations.
 This opinion is embodied in the case of Braxton B. Conner vs. the Birmingham Age-Herald, and the same vs. the Louis vile end Nashville railroad, as handed down by the supreme court Mr Conner sued both for the publication of an ar tlcle which he alleged was lbelous The city court of Birmingham dacided against the complainant because it was shown that the five days notice to retract or correct had not been given. The appeal was taken on this ruling.
 The suits grew out of the race of MT. Conner for the head of the railroad com mission and the strenuous fight made by the railroads to defeat him. Advertising matter was printed in the papers that would tend to the discredit of Mir. Co., mer, at the instance of the Louisville and Nashville railroad. MT. Conner brought suit against both. alleging in the last count of his complaints actual damage of $25,OOO in the case of the Age Herald and $15,O0O in the case of the railroad company.
 The court, as noted. agreed that the statute requiring notice did not apply to the railroad at all; in fact, not to any enterprise or person save newspapers. In the newspaper suit the court divided, Justices Haralson, Simpson and Ander- son dissenting. Judge Simpson, who wrote the opinion, held that the statute either meant what it said or did not. and If the latter, was not worth the paper written upon While there was no contention that the failure to give the notice de- prived the defendant of any rights in the case of suit for actual damage the dis senters thought it should have been given as a condition precedent to the filing of action. In other words to quote one of them, ito give cooling time"
 As the decision is on a demurrer, the cases will now go back to the courts for trial upon their merits That is to say, they will now go straight to the point as to whether or not Gov. Conner was ac- tually damaged by the publication of the articles complained of and to what ex- tent as measured by the cash.
 Opinions Rendered.
 In the case of The Age-Herald the fol- lowing is quoted from the opinion:
 Simpson J.-"In the case now under consideration, as stated, the demurrers were sustained to the complaint, and the
 
 ther. But, however, that may be, we know of no way of ascertaining what the legislature meant, except by the words which were used in the enactment, and when the status reads that before any suit for libel shall be brought this notice shall be given five days before bringing suit We cannot give any other construction to it than that is a condi- ton precedent to the bringing of suit To give it any other construction would be to leave no field of operation for the statute at all. All the justices concur, except as to the last proposition, as shown by the opinion herewith filed and Justices Haralson and Anderson concur In full with the writer
 Mcclellan, live are unable to agree to the conclusion that the notice men tioned in the act has any field of oper ation or effect where only actual damages are sought to be recovered. The sole purpose to be effected by the giving of the notice to the publisher is to afford him an opportunity to exempt himself from liability for exemplary damages; and if the aggrieved party valves, as of course he may do, any claim to that class Of damages, the notice is robbed of the only reason for its existence Of requirement. If the whole act and the obvious legislative purpose are given consideration, 1t is in- conceivable that the lawmakers intended
 
 institption for libel, notwithstanding the aggrieved party relnquishes or renounces any claim of the Character to be, in the event, affected by the notice Is required is entirely removed, the necessity for the notice cases as well. We feel con- strained to the conclusion that the third count of the amended complaint which valves all claim to punitive or yindic tive damages, is not defective in it's fail ure to allege the giving of the notice or otherwise. ."-Reversed and remanded. c. J. Tyson, Dowdel and ]. J. Denson con curing.
 Louisville and Nashville Ruling.
 In the suit against the Louisville and Nashville the following is taken from the opinion:
 We know that the modern daily paper, with its numerous reporters, gathering news from every quarter, and it's busy employees working until late at night, to place the latest news before its readers early in the morning. Is peculiarly liable to being inadvertently led into trouble in these matters, and 1t seeems a proper classification to regulate this class of libel suits as applied to the publishers of news papers. But with the individual, who pre- pares his article and pays for it's publica- ton, no such reason exists. For these reasons we hold that this provision of the statute GOeS not apply to the ueIenudnL in this case. The only other question raised is whether the publication was lbeous per SC. The publication in this case was libelous per se."
 The Act Construed.
 The act in question Is as follows:
 Act of February 20 1S59 amending sec tion TAI. Clause in question:
 Before any suit for libel shall be brought for the publication of an article in any newspaper in this state, the ag- grieved party shall at least five days be- fore beginning suit serve notice in writing on the publisher or publishers of said newspaper at their principal office of pub lication, if within the state, specifying the statements in the said article which he or they allege to be false and defama- tory and if 1t shall appear the trial of said action that said article was pub lished in good faith, that it's falsity was due to mistake and misapprehenson, and that a full correction or retraction of any false statement therein was published etc., the plaintiff "shall recover only &C., tual damages"
 Decision of supreme court in Conner contest for railroad commissioner:
 Text of Decision.
 The State of Alabama, Judicial Depart
 ment, the Supreme Court of Alabama.
 November Term, 1906-7 Div. 23. Brax-
 ton B. Conner vs. Age-Herald Publishing
 Co. Appeal from Birmingham City
 Court.
 Simpson, J.-rhis was an action for libel consisting of the publication in The