The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-11-09


| exception noted:
The court instructs you that even
though you should believe from all the
it. that the publication of the article as
alleged in plaintiff petition was privileged
and 1ustifiable within the limits OF the
state of Kansas, yet, 1 instruct you that
under the evidence and the pleadings IN
outside of and beyond the limits of the
state of Kansas is neither, privileged nor
evidence that publication of said article
was made outside of and beyond the limits
of the state of Kansas by the circulation
of any number of copies of the Topeka
State Journal containing said article, the
plaintiff in this action is entitled to re-
cover damages for such publication be-
yond the boundaries and limits or the
No exception was taken to the follow
ing instruction relating to the subject
of damages:
In case. you find for the PLAINTIFF, the
next question for you to determine Is the
amount of recovery. In this there is no
mathematical rule that the court can give
ages in such sum as will compensate him
for all damages he has sustained as a
LEGATION of the article charged, and in ar
irving at this you should consider the
injury, if any, to his feelings, and his
reputation, and the humiliation, if any,
caused by such publication, and the in
sion. If You find that the article was
published maliciously, as hereinbefore de-
damages, called punitive damages, in ad-
dition by way of smart money or punish
ment to the defendant for having publish
ed the article in question, and for the pur-
pose of setting a wholesome example to
others. 1 further instruct you that punt
tive damages may not be recovered by
the plaintiff, allowed by you in your
verdict, unless you shall first flnd the
plaintiff is entitled to recover actual dam
ages in some amount"
Many special questions were submit
ted to the jury, among which were the
following, the answers returned being
appended;
plaintiff sustained any actual damage by
in his petition?
Ans 1t does not.
g # you answer the foregoing cues
sists?
when said article complained of was pub
lished. did said defendant, or any of his
against gain III the ;, said plaintiff?
The jury found generally for the
defendant A motion for a new trial
was overruled and the plaintiff prose-
cutes error.
The plaintiff claims that the court
committed grieVOuS error in its in
structfons to the jury and by refusing
to instruct according to the plaintiffs
requests, the instruction upon the
subject of privilege being attacked
with especial fervency. To this claim
first, that the instructions given state
the law, the second, that even if error
was committed in giving and refusing
Instructions it has become inconse-
quentiaI in view of the special finding
that the plaintiff suffered no damage
from the publication of the, article
which occasioned the suit. The plain
tiff replies that the finding referred to
was induced by the instructions as
sailed, although they relate to other
branches of the controversy.
Beyond their Importance to the i'm
mediate parties the questions raised
people of the state. What are the linn
itations upon the right of a newspaper
to discuss the official character and
conduct of a public official who is a
vote to the office which he holds ?
What are the limitations upon the au-
thority of this court to overturn YER
dict and judgment and to remand a
case for retrial upon claim that an
error of the district court respecting
a particular feature of the litigation
has tainted the whole result?
The constitution contains a pro- |
vision which reads as follows:
1.-The liberty of the press shall be |
inviolate; and all persons may freely |!
speak, write or publish their senti- |
ments on all subjects, being respon- !
sible for the abuse of such right; and |
in all civil or criminal actions for IL |
dence to the jury, and if it shall APP |
pear that the alleged libelous matter |
was published for juStifable ends, the I
accused party shall be acquitted" /
(Bill of Rights, Sec. 10
The constitution supplies no defini-
ton of the term liberty of the press |
A right existing at the time the con-
stitution was adopted is guaranteed, |
the nature and extent of which must
be ascertained by looking elsewhere. |
Frequently it is said that the express
sion was used in the sense it bears in
the common law. If so, the question
arises-the common law at what .
stage of its development? Certainly
not the common law of England as it
existed when first transplanted to this
country by our forefathers in the
fourth year of the reign of King
James l. (1607). All printing was
ions and prohibitions. charters of
privilege, license and monopoly, and
lecrees of the court of Star Chamber
The newspaper proper did not appear
Until 1922, and the beginnings of the
modern law of libel find their source
n the Star Chamber decision De Lib
Ills Famous rendered in 1909.
Nothing like definition could be
framed from the law of England at
my subsequent period. When the
court of Star Chamber was abolished
n 1641 parliament assumed the pre-
ogative respecting the licensing of
publications which 1t had held, and
he press did not become free from
his restraint until 1894. It's liberty
vas then more theoretical than actual
IN account of the harshness of the
aw of libel and the manner in which
hat law was administered in the
courts, The long struggle against the
courts, eliminating in the passage of
he libel law of 1892 with which the
James of Fox. Frskine and Camden
re so honorably and brilliantly as
is familiar history The stat
ties De Scandals Magnatum We're not
ormallX reDealed until 1857. although