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

that are entirety OF a DI1bii. nan.Ssls
conduct of ministers. conduct of judges
the proceedings of all persons who are
LIesponsible to the public at large are
bena fid 70 De p6Die property and that all
persons. and their conduct. may be made
with perfect freedom. and without being
questioned too nicely for either truth or
55ustlce- (Gathercole v. Mall, 10 NJ. a. w
The liberal rule offers no protection 70
the anscrqDulous detamer and traducer OF
private character The Nominations in
many OF the DECISIONS about a Telemonian
shield OF privilege from beneath which
3evdTInous newspapers may hurl the
against private character with impunity
are are 3 Ss5ta the question Good faith and
case as in other branches of the law and
history Of 1 a beTy IN r ell Sd then po
ltlcal and economic. teaches that undue
that social progress is best facilitated, the
soclal welfare is best preserved and social
the least necessary restraint.
Aside from other reasons for adhering
TO II the court IS of the opinion that the
RUE In Balchs case accords with the best
practical results obtainable through the
i Ia OF libel under existing conditions. that
need and private right and that it is well
at stake-those of the :ndi1iduaI the
press and the public.
The plaintiff argues that the defense of
privilege was destroyed by the fact that
copies of the defendants newspaper cir
culated IN other states, complains OF the
instructions given upon the subject and
insists that the Instruction offered nv
him should have been given. The instruc-
tlon given was correct and follows the
RUE announces by this court IN Redgate
interest to communicates of a church was
published in the church papers in Indiana,
ONO; Texas and Nebraska. 1t was in
eyltable that they should be read by people
OF other denominations. The syllabus
Where the publication appears to have
peen made IN good faith and for the mem
Ders of the denomination alone, the fact
IL hRH
D Drought TO the attention of others Than
its privileged character"
This accords with the general rule stated
in p Cyc. 81. (see also Hatch v. Lane.
Co. 8 Neb. tUnoff. 1922
Wis. q. and sheftaii " Central Railway
which it might be inferred that tsp prvi I9
will be destroyed if the communIcation
should reach the eyes of others than per-
sons interested This would be the end Of
privilege for all newspapers having circu-
Generally, the publication must be no
wider than VIII meet the requirements OF
the moral or social duty to publish. II it
entity excessive. privilege is lost. But il
state newspaper published primarily for a
state constituency have a small circula-
ton elsewhere it is not deprived OF it's
privilege IN the discussion of matters of
statewide concern because of that fact
The second subject propoundeCh for con-
slderation at the beginning of this opinion
is one of practice which goes to the eff
cheney of the administration of the law
finding of the Jury that the evidence does
not show that the plaintiff suffered any
damage from the article in the defendants
newspaper render errors regarding in
structions upon other matters immaterial?
Under the constitution the appellate
jurisdiction of this court is limited to the
review of errors committed by the trial
court from which the record comes. 1t
cannot consider cases de novo and decide
them according to its own notions of the
law and evidence. 1t can not take new
evidence or pronounce any Judgment ex-
cept that the trial court did right or
rect what Judgment the trial court shall
enter unless the facts be found or agreed
to. 1t does not have the constitutional
power to do generally what ought to have
been done by judge and jury at the trial.
and so end the litigation. and the legis-
lature cannot. under the constitution, con-
fer such power upon IT, Gin re Burnette,
However. before the Territory of Kansas
became a state the territorial legislature
enacted the following statute:
The court in every stage of an action,
must disregard any error or defect in the
affect the substantial rights of the adverse
party 1ye and no igdgment shall be reversed
feet" Code Civil Proc. Sec. 14S. Laws
Before the territory became state the
territorial supreme court adopted the rule
that error viii not be presumed but must
McCahon. SD That statute and that
rule have been in force ever since. They
are still in force, and have been applied
in multitudes of decisions.
It would be too much to say that the
spirit of the statute and of the rule has
always been observed. 1t has been lost
sight of often enough. Sometimes tech
fort to right palpable wrong. Very often.
it is most perplexing to determine what is
substantial. But 1t is the constant purpose
and endeavor of the court to obey the
statute and to observe the rule. 1t must
do so in this case precisely the same as II
it were one small enough to have original
ed before a justice of the peace.
IF 1t be conceded that the rules of pro-
cedure have been violated in this case
the judgment cannot for that reason alone
Joined upon this court the duty of looking
beyond defects and errors in pleadings
and proceedings to ascertain II they did
party complaining of them Fixed rules
are to be observed and enforced, but not
them. Harm must result from a wrong
decision or it cannot be reversed" Hop-
For obvious reasons the instruction re-
latIng to privilege required consideration
ton to say that other Instructions given
which do not relate to damages led the
ages was treated independently OF an 9TH
er issues and stood out separate and
distinct branch OF the case; ana the court
for error indeed to be able to discover
that that the Jury did not understand the cues
say that under the Instructions the plain
TN mad no cause OF actlon Tor damages
Error must be made to appear in some
affirmative way. 1t cannot be presumed
If the plaintiff suffered no damage, mani
testify 1t is of no consequence whatever
what valuation should be used in the pur-
chase of bonds for the school fund, what
the law of conspiracy may be. The sub
stantiaI rights of the plaintiff could not be
affected by erroneous statements OF the
law upon those questions.
The Judgment of the district court is
affirmed.
Arkansas City 81. Wichita o.
Arkansas City, Kan, Nov. 9.-The