Butler v. Barret & Jordan

• Decision Date: 24 June 1904
• Parties: BUTLER v. BARRETT & JORDAN.
• Court: U.S. District Court — Middle District of Pennsylvania

130 F. 944

BUTLER v. BARRETT & JORDAN.

United States Circuit Court, M.D. Pennsylvania.

June 24, 1904

Everett Warren, for the rule.

Henry N. Paul, Jr., opposed.

ARCHBALD District Judge.

This is an action for the publication in the Scranton Truth, of which the defendants in August last were the proprietors, of an article which related to the plaintiff-- as it is claimed-- and was a libel upon her. Until within a year or two past under the stage name of 'Annie Oakley,' she was connected with the 'Wild West Show' conducted by W F. Cody, familiarly known as 'Buffalo Bill,' and gave exhibitions of her skill with the rifle in almost daily performances all over the United States and in several countries of Europe, and particularly at the World's Fair at Chicago in 1893 and at Buckingham Palace before the present King of England, then Prince of Wales. This explanation will show the application of the article of which complaint is made, which is as follows:

'Annie Oakley in Prison Cell.

'A Chicago dispatch to the Philadelphia Press last week says 'Annie Oakley, daughter-in-law of 'Buffalo Bill,' and the most famous woman rifle shot in the world, lies to-day in a cell at the Harlem Street Station, under a Bridewell sentence, for stealing the trousers of a negro in order to get money with which to buy cocaine.'

'This is the woman for whose spectacular marksmanship King Edward himself once led the applause in the courtyard of Buckingham Palace.

'When arrested Saturday on the complaint of Charles Curtis, a negro, she was living at 140 Sherman street. She gave the name of Elizabeth Cody, but it occurred to no one to connect her with Colonel Cody's famous daughter-in-law. To-day, however, when brought before Justice Caverly she admitted her guilt.

''I plead guilty, your honor, but I hope you will have pity upon me,' she begged. ' An uncontrollable appetite for drugs has brought me here. I began the use of it years ago, to steady me under the strain of the life I was leading and now it has lost me everything. Please give me a chance to pull myself together.'

'The striking beauty of the woman, whom the crowds at the World's Fair admired, is gone. Although she is only twenty-eight years old, she looks almost forty. Hers, in fact, is one of the extreme cases which have come up in the Harrison street police court. She was taken to Bridewell to serve out a sentence of $25 and costs.

''A good long stay in the Bridewell will do you good,' said the court.

'The prisoner's husband, Samuel Cody, died in England. Their son, Vivien, is now with Colonel Cody at the latter's ranch on the North Platte. The mother left 'Buffalo Bill' two years ago, and has since been drifting around the country with stray shows.'

At the trial the defendants offered in evidence the depositions of witnesses taken in Chicago with respect to the origin of the article, which the court excluded. This testimony was brought forward for two avowed purposes: First, to establish that there was a foundation in fact for the article, there having been such an arrest and proceedings as are described in it; and, second, on the question of identity, to show that it had reference to another person than the plaintiff, to wit, to Elizabeth Cody, the woman who was arrested. The depositions, as taken, are full of irrelevant and incompetent matters, which would of itself be sufficient to justify their exclusion, the court not being called upon to separate the good from the bad, and the whole being offered together. But, passing that by, there was no mistake in rejecting them. It is not necessary to dwell at length upon the first purpose. It may be that the testimony elicited by the depositions goes to show a certain measure of truth, or foundation in fact, for the statements contained in the article, so far as concerns the person who was arrested; but certainly none is disclosed, as to the plaintiff in this action, to whom the article is made to apply, not only by her stage name, Annie Oakley, but by allusions to incidents of unmistakable significance in her professional career. As a justification, therefore it fails utterly. And it is equally unavailing in mitigation of damages. There is no pretense that the original facts on which the Chicago reporter worked up this sensational story were ever communicated to the defendants, and they certainly cannot set up in extenuation of their actions something, however true, of which they had no knowledge. Hatfield v. Lasher, 81 N.Y. 246; Sun Printing Association v. Schenck, 98 F. 925, 40 C.C.A. 163; Morning Journal Association v. Duke (C.C.A.) 128 F. 657.

Nor were the depositions admissible for the purpose of showing to whom the article was intended to apply. Undoubtedly, it was for the jury to say whether it referred to the plaintiff; and, unless it did, the action would not lie. But this was to be determined by the allusions contained in the article itself and their application to her (Clark v. North American Co., 203 Pa. 346, 53 A. 237), upon which the excluded testimony threw no light. It merely showed the arrest in Chicago of a woman who said that she was Annie Oakley, and who seems to have persuaded the reporter who interviewed her that such was the case; and that what was stated in the article with regard to the debased condition and life of this person was true. But the question is not whether the reporter had any basis of fact to work upon, but whether, in the way the incident was dressed up and sent out to the world, it would be understood by the reading public to apply to the plaintiff identified by her professional career and name; and on this the occurrence which prompted the article in no wise bears. Plainly, the person who is made the subject of it is 'Annie Oakley,' the famous crack shot, who had traveled with the 'Buffalo Bill Show,' and was identified for so long with it. Not only is her name put at the head of the article, but allusion is made to the crowds who saw her at the World's Fair, and to the applause which she received when performing before the King at Buckingham Palace-- things which were true, and could be true, of no one else. The whole 'spice' and interest of the item as a matter of news is because of its dealing with such a celebrity. It is the once admired and applauded performer who is held up to observation and obloquy, contrast being made with her present debased condition; and it is only as she is thus identified with the fallen woman brought up for sentence by the Chicago police and committed to Bridewell that the general public could be expected to have any concern with the matter. It is true that there are some references found in the article which admittedly do not fit the plaintiff, such as the name Elizabeth Cody, given by the homan, her asserted relationship to 'Buffalo Bill,' and the existence of a son Vivien. But these are of minor importance, and go simply to the question whether the article as a whole would be understood to refer to the plaintiff, of which the defendants had full advantage by way of argument. To allow them to go further, and lay before the jury all that was said and done--relevant and irrelevant-- in and about the Chicago police court, which gave rise to the article, of which neither the defendants nor the readers of their paper had the slightest knowledge, would be to obscure the issue, and divert attention from the real inquiry, which the court was right in prohibiting.

Complaint is further made of the way the case was submitted to the jury. It left nothing for them-- as it is said-- but to return a verdict for the plaintiff for substantial damages the court injecting its own ideas into the charge, and constraining their judgment. On the undisputed facts there were but two questions to dispose of. The libelous character of the article could not be gainsaid. It held up to public odium the party referred to in it, whoever that was, attributing to her a low and degraded life in marked contrast with her former position. Actual crime was also ascribed to her in the stealing of a pair of trousers from a negro. There being no legal justification for these statements, malice in publishing the article was presumed. The only things, therefore, for the jury to pass upon were (1) whether the article applied to the plaintiff; and (2) if it did, the damages to which, in their opinion, she was entitled. It is contended that these were not given to the jury in a way that left them open to their own untrammeled judgment. There unquestionably was a decided expression of opinion that the article was intended to apply to the plaintiff, but this expression did not go outside of the...