Butler v. Evening Post Pub. Co.

• Decision Date: 08 November 1906
• Docket Number: 631.
• Parties: BUTLER et ux. v. EVENING POST PUB. CO. SAME v. NEWS & COURIER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

148 F. 821

BUTLER et ux. v. EVENING POST PUB. CO.

SAME v. NEWS & COURIER CO.

No. 631.

United States Court of Appeals, Fourth Circuit.

November 8, 1906

Augustine T. Smythe (Smythe, Lee & Frost and Joline, Larkin & Rathbone on briefs), for plaintiffs in error.

H. A M. Smith, for defendant in error News & Courier Co.

Wm Henry Parker, Jr., for defendant in error Evening Post Pub Co.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

On the 8th of March, 1904, the plaintiffs, Frank E. Butler and Annie Butler, his wife, brought a suit in the Circuit Court of the United States for the District of South Carolina against the Evening Post Publishing Company. The plaintiffs are citizens and residents of the state of New Jersey, and the defendant a corporation under the laws of South Carolina with its principal business in the city of Charleston in said state. On the 6th of June, 1904, the plaintiffs filed their complaint and alleged, as their cause of action, the publication in a newspaper called the 'Evening Post,' published by the defendant, and circulated in the city of Charleston and elsewhere, a certain article which the plaintiffs allege was a libel upon the feme plaintiff; that it was malicious and untruthful and had greatly and permanently injured her in her good name and credit, had brought her into public scandal, infamy, disgrace, etc., and thereupon, for the said publication, the plaintiff's claimed damages in the sum of $10,000. At the same time plaintiffs brought another suit in the said court against the News & Courier Company, a corporation under the laws of South Carolina, with its principal place of business in Charleston, in said state, and in the complaint, filed on the 6th of June, 1904, it was alleged that this defendant had published in the News & Courier, a newspaper published in Charleston, and circulated in said city and state of South Carolina, and also elsewhere, the same article which was set forth as the cause of action against the Evening Post, alleging in the complaint in this case, as in the other, that the publication was malicious, etc., and that the good name of the feme plaintiff had been brought into public scandal, defamed, disgraced, etc. The plaintiffs sought $10,000 as damages for the alleged libelous publication in this suit. The defendants each filed answers in which the publication of the alleged libelous matter was admitted, but denied that the publication was made with malicious intent or with any knowledge or intimation that there was error in the facts stated. The answers of both defendants were substantially the same in another respect; that is to say, that the publication was made bona fide in the due course of business, that it came to each of the papers through reputable news sources, and that when published the defendant was warranted in the belief that it was true. The Evening Post, in its answer, states that its circulation is confined to the city of Charleston, except exchanges, and the News & Courier's answer states that its circulation is confined to the state of South Carolina, except exchanges.

When the cases came on for trial in the Circuit Court, the presiding judge ordered them to be consolidated and tried together. The order, however, was made, as appears of record, upon the motion of plaintiffs' counsel; but it further appears that the counsel was led to make the motion after correspondence with the judge and upon a suggestion that it would facilitate a trial of the causes. The reasons assigned for the order of consolidation by the court were, in substance, that the actions were practically similar, and that, owing to the crowded state of the dockets, numerous cases being pressed for trial, convenience and economy of time would be promoted. After the testimony was introduced, the court instructed the jury to return separate verdicts as to each defendant, which was done. In each of the cases the verdict of the jury was in favor of the defendant. The cases are brought here by writ of error sued out by the plaintiffs. There are several exceptions taken by the plaintiffs on the trial which are set out in the record and have been argued both in the briefs filed and orally. We do not deem it necessary, however, to consider any save the following: In the organization of the jury, after the order of consolidation, the plaintiffs insisted that they were entitled to six (6) peremptory challenges, and so likewise did the defendants. The presiding judge held that each of the defendants was entitled to three (3) peremptory challenges or six (6) in all, but that the plaintiffs were entitled to only three (3). To this ruling the plaintiffs duly excepted, and the case is before us to review this decision.

Under the South Carolina practice, which was adhered to in this case, the list of jurors is furnished to the counsel, and each party strikes therefrom the names of jurors challenged to the number allowed. In the organization of the jury in this case, the list of jurors contained twenty-one (21) names, and, under the ruling of the court, the plaintiffs were allowed to strike...