American Pub. Co. v. Gamble

• Decision Date: 27 January 1906
• Citation: 90 S.W. 1005
• Parties: AMERICAN PUB. CO. v. GAMBLE.
• Court: Tennessee Supreme Court

Page 1005

90 S.W. 1005

AMERICAN PUB. CO. v. GAMBLE.

Supreme Court of Tennessee.

January 27, 1906.

Error to Circuit Court, Davidson County; Jno. W. Childress, Judge.

Action by Tip Gamble against the American Publishing Company. From a judgment for plaintiff, defendant brings error. Reversed.

This was an action of libel brought in the circuit court of Davidson county by the defendant in error against the plaintiff in error to recover damages for the publication of an article in the Nashville American. There was a verdict for $5,000 damages in favor of Col. Gamble against the plaintiff in error, on which judgment was rendered, and from which an appeal has been prayed and prosecuted.

The questions in the case arise out of the following facts:

On the 29th day of January, 1904, Mary Luizer Ham filed her bill in the chancery court of Davidson county against Thomas Cartwright, sheriff of the county, T. H. Scott, a deputy sheriff, William Warner & Son, and Tip Gamble. In this bill she alleged that as widow of the late John J. Ham she was the owner of a homestead interest in certain real estate described, that her husband died in July, 1901, and that subsequently she became indebted to William Warner & Son.

The bill then alleged the following:

"On the 19th of August, 1902, a judgment for $60.85 in favor of William Warner & Son was obtained before Jake Levine, justice of the peace for Davidson county, against the complainant. Some months thereafter complainant paid to Tip Gamble, attorney for William Warner & Son, $15 to be credited on said judgment, but the said Gamble has failed to have the said judgment credited therewith. The true amount, exclusive of cost of said judgment, is $45.85. On May 19, 1903, by order of Attorney Tip Gamble, execution issued from said justice of the peace and was levied upon `all the right, title, interest, and claim that Mrs. John J. Ham' might have in said premises, by Henry M. Jordan, a constable for Davidson county, to satisfy said judgment of $60.85 and costs in favor of William Warner & Son."

The bill further alleged that a writ of venditioni exponas had been issued to the sheriff of Davidson county, and that he had advertised Mrs. Ham's lot for sale for the payment of this debt, that she had no interest in the property which was subject to execution, and that, if the sale should be allowed to proceed, a cloud would be cast upon her homestead right. She therefore prayed that an injunction might issue to restrain the sale. The bill was sworn to by Mrs. Ham, and was thereupon presented to the Honorable J. A. Cartwright, one of the circuit judges of the state, for the purpose of obtaining a fiat for the issuance of an injunction, and this flat was on that day, by a written order on the back of the bill, granted in the usual form, directing the clerk and master of the chancery court of Davidson county to issue the injunction as prayed.

After the injunction had been so granted the bill was on the next day, January 29, 1904, filed in the office of the aforesaid clerk and master.

On the 30th day of January, 1904, the Nashville American contained the following publication, in respect of the matters above referred to:

"To Inhibit Sale.

"Mary Luizer Ham filed a chancery bill Friday against Thomas Cartwright, sheriff, T. H. Scott, deputy sheriff, William Warner & Son, and Tip Gamble, seeking to restrain the sale of a lot to satisfy a circuit court judgment of $60.85. It is alleged the complainant has a life interest in the property, and, further, that a portion of the judgment was paid to her attorney, Tip Gamble, but that he applied the money to his own use, instead of having it paid over on the judgment. A temporary injunction was issued."

The present suit was brought to recover damages for the injury inflicted by the publication just quoted.

The defendant pleaded not guilty.

His honor in his charge, after stating that the defendant claimed the publication was a privileged one, because it contained the substance of the bill already referred to, and that no malice was entertained or wrong intended, further instructed the jury, as follows:

(A) "The court instructs you that the words alleged to have been published, as set forth in the plaintiff's declaration, were libelous of themselves, and, if the defendant did publish them as alleged therein, the defendant company is liable in damages to the plaintiff therefor.

(B) "The court further instructs you that the publication was not privileged, and as such under the facts of this case cannot be relied upon by the defendant in bar of the plaintiff's action therefor.

(C) "If you shall find that the defendant company, in its issue of the date aforesaid mentioned, did make and publish libelous matter as set forth in the plaintiff's declaration, then and in that event your verdict should be for the plaintiff."

Upon the subject of damages the court charged the jury as follows:

"Should you find for the plaintiff, you shall proceed to award him such damages as would reasonably compensate him for the injuries inflicted, taking into account in estimating same the manner in which it was made, the nature of its circulation and distribution, and all of the facts and circumstances adduced in the proof tending to show the manner and purpose of the same, and while the amount to be awarded within the sum sued for is within your discretion that discretion should be exercised without passion or prejudice, and with the view to simply award only such sum as would compensate for the injuries resulting from the publication of such a libelous matter."

After the court had thus charged the jury, the counsel for plaintiff in error presented to his honor certain instructions which he asked should be given to the jury, but they were all refused. They were as follows:

"(1) A publication in a newspaper of the contents of a bill filed in a judicial proceeding upon which a fiat for injunction has been granted, when the contents published are pertinent and material to the relief sought, cannot be made the basis of a recovery in a libel suit, even though the contents of said bill so published are false and untrue, unless it appears that the paper making said publication was actuated by malice, and in such case malice is not presumed, but it is incumbent on plaintiff to prove its existence before he is entitled to recover.

"(2) In undertaking to publish the contents of a court pleading, in order to be entitled to the conditional privilege which the law extends to newspapers in making said publication, the paper is not required to publish the whole of said pleading. It is sufficient if the substance of all that relates to the alleged libelous matter, or that in any way reflects on it, is fairly and impartially stated.

"(3) If in the publication of the contents of pleadings in court, which publication is made the basis of a suit for libel, it appears that certain facts are misstated, as, for instance, it is published that the plaintiff was the attorney of one party, when, as a matter of fact, the pleading in question alleged that he was the attorney of another party, and the misstatement of this fact was not material to and in no wise affected the alleged libelous matter sued for, such a mistake would not afford the plaintiff the right to recover, nor deprive the defendant of his defense as to that part of the publication alleged to be libelous.

"(4) It is the province of the court to interpret and construe the publication sued on in this case and introduced in evidence by the plaintiff in support of his action, and it is your duty to receive this publication with such construction or interpretation as the court puts on it, and I charge you that said publication in all its material particulars is substantially a repetition of the charges made against the plaintiff in the chancery court bill, which has been introduced in evidence in this case; and I further charge you that for the making of this publication the defendant cannot be held liable in this suit, unless it appears from the proof that said publication was maliciously made. Malice will not be presumed, but may be proven, the burden of proving it being on the plaintiff, and, if there is in this record no evidence of malice on the part of the defendant towards the plaintiff, then you should return your verdict for the defendant; and the fact that the charge against the plaintiff as made in the bill and repeated in the publication sued on is admitted to be false would not change or alter this result.

"(5) If you find from the evidence that the publication made by the defendant was a fair and substantially true and accurate account of a bill filed in a court of record upon which an injunction was issued, and that the said publication was made in good faith, and not with a malicious motive, then I charge you that you should find for the defendant.

"(6) If you find from the evidence in this cause that the publication made by the defendant was made in good faith and without express malice, then I charge you that you should find for the defendant.

"(7) Although you may find the defendant liable in the case, yet, if the proof shows that the publication was not the result of actual malice, this fact should be considered by you in mitigation of the damages you would otherwise award."

During the progress of the trial the plaintiff below introduced John W. Fisher, who, over the objection of the defendant below, testified to a conversation that had passed between himself and W. S. Kane, a reporter on the Nashville American. Mr. Fisher testified, in substance, that on Sunday night after the publication had appeared in the paper he had a conversation with Mr. Kane, the reporter who wrote the article, in which conversation Mr. Kane said, in substance, that he had seen Col. Gamble's card in the Nashville Banner denying the publication as made in the Nashville American, and that upon seeing this card he again went...