The Birmingham age-herald., 1907-05-29
Supreme Court Decision in
 Gov Corners Damage Suit

tice in writing on the publisher or pub fishers of said newspaper, at their prin eipal office of publication, if within the state, specifying the statements in the said article which he or they allege to be false or defamatory and if it shall appear on the trial of said action that said article was published in good faith, that it's falsity was due to mistake or mis- apprehension, and that a full correction or retraction of any false statement there in was published in the next regular is- sue of said newspaper, or in case of daily newspapers within five days after service of said notice aforesaid in as conspicuous a place and type in said newspaper as was the article complained of, then the plaintiff in such case shall recover only actual damages" Under the previous de- .cisons of this court, this was a sufficient compliance with the constitutional re- uirement.-Montgomer vs. state, 107 Ala. S72
 The amendment is clearly pertinent to
 the general subject of the original sec
 ton of the code, to-wit the regulation
 of the practice of such cases. and the
 effect to be given to the retraction or
 amends made before suit.
 Appellant next insists that the act in
 question is unconstitutional because 1t
 denies to the person the protection guar
 anteed to him by section 13 of the bill
 of rights that "every person, for any in-
 jury done him, in his lands, goods, person
 or reputation, shall have a remedy by
 due process of law" and he argues that
 the term ''actual damages" cannot in-
 clude those presumed and improved dam
 ages of which the law allows a recovery,
 although in point of fact they may not have been actually sustained. The law presumes certain damages, not on the idea that they have been actually sus- tained. but because they are the natural anu probable consequence of the libel,
 and the law presumes that they are
 actually sustained such as the injury to
 a mans reputation, which while it may
 not be an actual pecuniary'' loss is,
 nevertheless, an actual loss Newell on
 defamation, Slander and libel, page S3S, volume 1.
 Actual damages include all damages,
 except that class of damages known as
 vindicative punitive or exemplary dam
 ages. Actual damages is the synonym
 of compensatory damages. Damages are said to be compensatory when they are
 such as measure the actual loss," while
 punitive or vndictve damages exceed
 the loss or injury actually sustained.
 "and are given as a kind of punishment to the. defendant with view of prevent
 ing similar wrongs in the future" Am.
 and Eng. Ency. Law. )2d ed) 542; New
 ell on defamation, islander and fiber, page ofEs . EstlcN. Dl.f anu pdSf tGo.
 The cases of Park vs. Free Press Coz
 CMich) 1 l.. R. A.. 599; and Hanson vs. Krehbiel (Kan) GA T.. R. A, 796, while
 based upon a statute similar in some re-
 spects to the one under consideration,
 yet are different in an important par
 ticular, and the ratio decidendl, Is that, in that statute the term ''actual dam
 ages' Is defined to apply only to prop
 erty, business, trade. profession or oc-
 cupation, and, consequently. the act is
 declared unconstitutional. because the
 party is deprived of the constitutional guarantee as to his reputation.
 This whole matter Is discussed, and the distipction clearly drawn between statutes
 worded as those were, and one worded as
 ours is, in an able opinion by the supreme court of North Carolina, in which the diff ference between actual and punitive dam- | ages Is clearly shown, and 1t is stated l that there can be no constitutional ob- l jection to the statutory restriction as to
 punitive damages, because they do not
 constitute any property right in the
 plaintiff, but are inflicted on grounds of l public policy-Osborn vs. Leach, Q36 N.
 C.. 62S); 6e l.. R. A. 64S. 651.
 The supreme court of Minnesota holds l that even a statute which defines actual l damages, in the same language as the | Michigan and Kansas statutes Is not un- | constitutional, but we cite this case be-
 cause it also declse, in accordance with | the rulings of our own court in other matters, that such a statute is not un- 1 constitutional because 1t relates alone to | newspapers, and states the doctrine, which we approve, that it is legitimate | and proper, with our constitutional llmi- l tations, to enact public laws Tin their | objects may be confined to a particular
 class of persons, if they be general in | their application to the class to which Al. tlAI IfrtaF ftRsR fC nf arbitrary, but rests upon some reason Of l public policy, growing out of the eondi- | ion or business of usch class. ."-Allen vs. Pioneer Press Co. (Minn.), l.. R. A. | 532, 533 1 Appellant insists that there is no field | of operation for this statute unless the
 term actual damages is taken in a mere restricted sense than is given to it in the | books, because even without the statute | there could not be a recovery for vindic- | tive damages in the case described; yet We l cannot suppose that the lawmakers used | the term in any other sense than that | which the law had given 1t; and the | reason given oly suggests another reason l for sustaining the statute, because it does | not in any way abridge the rights or | the parties, but Is only a regulation of practice, by which suits may be avoided, or, if entered upon the issues shortened. The appellant next insists that even al- lowing the constitutonality of the act, yet it is not necessary to allege compli- | ance with it in the complaint, as the case | could go on, and actual damages be re- | covered. 1t is true that the supreme | court of North Carolina seems to have taken this view of the interpretation of a similar statute Gas does also the su-
 preme court of Minnesota in Clementson vs Minn Tribune, 45 Minn., 30S), Osborn vs Leach, supra, but it will be observed
 that, in dlat case, the question came up
 not on demurrer to the complaint, as in this case, but a motion to non-suit the plaintiff, and the court said that was improper because good faith, honest mis-
 take and reasonable ground of belief were affirmative defenses which the court could not judge"
 In the case now under consideration, as stated, the demurrers were sustained to
 the complaint, and the plaintiff declined
 to amend or plead further. But, however
 that may be, we know of no way of as- certaining what the legislature meant, ex- cept by the words which were used in the enactment, and when the statute
 reads that before any suit for libel shal! be brought this notice shall be given
 five days before bringing suit we can not give any other construction to 1t t. to