Commercial Pub. Co. v. Smith

• Decision Date: 08 January 1907
• Docket Number: No,1,557.
• Citation: 149 F. 704
• Parties: COMMERCIAL PUB. CO. v. SMITH.
• Court: U.S. Court of Appeals — Sixth Circuit

149 F. 704

COMMERCIAL PUB. CO. v. SMITH.

No, 1,557.

United States Court of Appeals, Sixth Circuit.

January 8, 1907

E. E Wright, for plaintiff in error.

H. D Minor, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

Action for libel. Jury, and verdict and judgment for plaintiff. Defendant has sued out this writ or error. The alleged libelous publication consisted in the publication in the newspaper published by the plaintiff in error of a special dispatch from its own special correspondent at Augusta, Ark., in words and figures as follows:

'Murderer Arrested.

'Augusta, Ark., Feb. 10th.-- Sheriff Marshal Patterson arrested Fred Smith, camped in a tent ten miles north of Augusta, on White river. Smith is wanted at Kennett, Mo., for killing old man F. E. Porch, the incentive being robbery. The state of Missouri offered $300, the county $200, and the citizens of Malden $600, for Smith's arrest. Smith does not deny being the man wanted, but claims he did not do the killing.'

The declaration, by innuendo, averred that the meaning of the said publication was:

'That the said plaintiff was a murderer; that he had murdered an old man named F. E. Porch for the purpose of robbing him; that a reward was being offered for the arrest of said plaintiff; and that he, the said plaintiff, on being arrested, did not deny that he was the man wanted.'

The declaration admitted that so much of the item as stated that the plaintiff had been arrested by Sheriff Patterson at the time and place stated was true, but that the statement that 'a murderer had been arrested, and that the said plaintiff was 'wanted at Kennett, Mo., for killing old man Porch, the incentive being robbery' and that 'the state of Missouri had offered $300, the county $200, and the citizens of Malden $600,' for the arrest of plaintiff, and that the plaintiff did not deny being the man wanted,' were false and untrue, and that by this false publication plaintiff had been greatly injured, etc.

The defendant interposed three pleas: First. Not guilty. Second. That the publication did not refer to the plaintiff but to one Fred Smith, a different individual. The third plea was in these words:

'For further plea, filed by leave of the court, the defendant says that the plaintiff was arrested by Sheriff Marshal Patterson in a tent near Augusta, Arkansas, on a charge of murder, and under the belief by the sheriff that he was guilty of that offense, and that the plaintiff did claim that he did not do the killing for which he was arrested. The substance of the publication complained of is that the plaintiff was arrested on the charge of murder, and that he claimed that he was innocent of that charge. The sheriff may have made a mistake in the matter. The defendant says the article complained of did not state that the plaintiff is guilty of murder, nor does the language used bear that meaning. It only says and means, in substance, that the plaintiff was arrested on the charge of murder. Wherefore pleads this special justification as to the truth of the words herein referred to in bar and defense of this action.'

The case turned below upon the sufficiency of this third defense, and must turn here upon the question as to whether the meaning of the item was for the jury. In respect of the construction and interpretation of the item, the court said:

'I charge you, gentlemen of the jury, that the publication set out in the declaration is libelous per se-- that is, it is actionable on its face-- and if you believe from a preponderance of the evidence in the case that the defendant published the article, and if you further believe that it was published of and concerning the plaintiff, and that it was untrue, then the plaintiff would be entitled to a verdict at your hands.'

He denied a request to charge that it was the province of the jury to determine the meaning of the objectionable item, and that if they should find that the article or item only conveyed to those who read it 'the meaning that the plaintiff was arrested by the sheriff on the charge of murder' etc., that the plaintiff could not recover if they should find as a fact that the plaintiff had been arrested by the sheriff upon a charge of murder, although the sheriff might have made a mistake in so doing. The publication of the fact that one has been arrested, and upon what accusation, is not actionable, if true. But a newspaper has no greater justification for the publication of defamatory matter than pertains to any private person. The defense against an action for writing or saying of one that he has been arrested upon a particular charge is that the fact is true. But if to this fact there is added, by way of comment, words which amount to an accusation that the charge is true, or comment which assumes the guilt of the person arrested, by headlines or otherwise, the mere fact that the person was arrested upon the charge stated is no justification for words imputing guilt. Newell on Slander & Libel, p. 574; Usher v. Severance, 20 Me. 9, 11, 37 Am.Dec. 33; McBee v. Fulton, 47 Md. 403, 28 Am.Rep. 465.

The plaintiff's case depended upon whether the publication in question went beyond a mere statement of the fact of...