Cunningham v. Underwood

• Decision Date: 03 June 1902
• Docket Number: 1,027.
• Citation: 116 F. 803
• Parties: CUNNINGHAM et al. v. UNDERWOOD.
• Court: U.S. Court of Appeals — Sixth Circuit

116 F. 803

CUNNINGHAM et al. v. UNDERWOOD.

No. 1,027.

United States Court of Appeals, Sixth Circuit.

June 3, 1902

T. C Daniel, for plaintiff in error.

John A Pitts, Baxter Smith, and Firman Smith, for defendant in error.

This was an action for libel, brought by John C. Underwood against S. A. Cunningham and the Book Agents of the Methodist Episcopal Church South. The publication alleged to be libelous appeared as an editorial in a weekly newspaper periodical published at Nashville, Tenn., called the 'Confederate Veteran.' This paper is owned and edited by the plaintiff in error Cunningham, and was published for him by the Book Agents of the Methodist Episcopal Church South, a corporation created under the laws of Tennessee. Underwood was a citizen of the state of Kentucky and Cunningham a citizen of the state of Tennessee. The defendants pleaded separately. There was a verdict and judgment against them jointly for $15,000, and a separate verdict and judgment against Cunningham individually for $10,000. The trial judge directed that a new trial be granted, unless $12,000 of the joint judgment should be remitted. This was done, and the motions for new trial were overruled. Separate bills of exception were taken by each defendant, and separate writs of error allowed. Upon a former day of this term the Book Agents, which was accordingly done and a mandate awarded. Upon a former day of this term the Book Agents, upon motion, were allowed to dismiss the writ of error sued out by them, which was accordingly done, and a mandate awarded. Upon the coming on of the hearing of the case upon the writ of error sued out by Cunningham, the defendant in error asked leave to remit and release the separate judgment against S. A. Cunningham for $10,000, which was objected to by said Cunningham, and allowed over such objection. It was accordingly ordered that defendant be allowed to remit and release said judgment for $10,000 against said Cunningham, which was done. The plaintiff, Underwood, in his declaration, averred that he was, at the time of the publication complained of, the superintendent and secretary of the Confederate Memorial Association, a corporation created under the laws of Mississippi, and in receipt of a salary of $4,000 per annum, and that the same memorial association had been organized and originated by the United Confederate Veterans, a voluntary organization, composed of surviving soldiers and sailors of the army and navy of the late Confederate States of America; that in 1894 one Charles Broadway Rouss, a wealthy merchant of New York City, and an old Confederate soldier, proposed the erection and maintenance in some Southern city of a memorial institute or Battle Abbey in commemoration of the valor and self-sacrifice of those soldiers he would personally give $100,000 for that purpose whenever an equal amount should be contributed by others. This led the Confederate Veterans' Association to organize the Confederate Memorial Association as a means of raising the necessary funds and for erecting and maintaining the memorial abbey proposed. Thus the relations between the two organizations were of the most intimate character, the memorial association being a mere instrumentality employed and controlled by the former. It was in evidence that S. A. Cunningham was a member of the said Confederate Memorial Association, and that his paper, the Confederate Veteran, was the recognized official organ of the Confederate Veterans' Association. The publication alleged to be libelous was written by Cunningham. The publication is one of great length, and we forbear setting it out. It is enough to say of it that it included some very detailed and stringent criticism and comment upon the conduct of the plaintiff as an agent and officer of the Confederate Memorial Association, and challenged the propriety of his retention in its service as a person unfit and untrustworthy for so confidential an office.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, having made the foregoing statement of the case, .

1. The action was a joint one against two defendants. There was a verdict and judgment against both for $15,000, and a verdict and judgment against Cunningham alone for $10,000. The joint judgment was cut down, upon suggestion of the court and by consent of the plaintiff, to $3,000; and the separate judgment against Cunningham alone has, upon motion of the defendant in error, and by order of this court at a former session of this term, been altogether released, remitted, and set aside. This was objected to by the plaintiff in error Cunningham, upon the ground that the error of the court below in rendering two separate judgments in the same joint action could not be thus cured, and it is now insisted that the action of this court in allowing a remittitur of said separate judgment should not avail the defendant in error in curing the error in rendering separate judgments against joint defendants. The court below, in substance, instructed the jury that, if they found both of the defendants guilty, they should find a verdict against both jointly for such an amount as would compensate the plaintiff for the entire injury done him by the publication; but that if they found that one of the defendants was actuated by malice, while the other was not, the jury might, if they saw proper, 'assess also against that defendant, by way of smart money or punitive damages,' such a sum as they saw fit, not exceeding in all the amount sued for in the writ. In another part of the charge he instructed the jury that there was no evidence from which they could infer that the 'Book Agents' were actuated by malice, and that they were not 'liable for anything but compensatory damages. ' The court also pointed out with emphasis the evidence which might be regarded as proving the malice of Cunningham, and concluded by saying: 'If he was, you would be entitled to give punitive damages as against him, and to give a verdict that would include smart money as against him; but in no event against the other defendant. ' Although neither the verdict nor judgment as entered upon the journal shows that the separate verdict or judgment against Cunningham was only for 'smart money or punitive damages,' and the verdict and judgment against the two defendants jointly purely for compensatory damages, we are justified in so assuming from the charge of the court above referred to.

That the court erred in permitting such an apportionment of damages when the plaintiff had elected to sue both defendants in one action is very obvious. Wrongdoers sued together and found guilty in an action for slander or libel, or any other form of tort, are liable for the whole injury to the plaintiff; and the question as to whether one is more culpable than another is of no importance, for each is liable for all the damages, without regard to degrees of guilt. That one may have been actuated by that degree of ill will and evil purpose constituting actual malice does not in any wise justify a division of the damages, so as to throw upon one of two or more tort feasors sued together a responsibility beyond that cast upon the others, whether done by way of compensation or punishment. The common law prevails in Tennessee, where this action was tried, and there are no cases to which our attention has been called which justify the departure from the rule of common law as we have stated it. Gaslight Co. v. Lansden, 172 U.S. 534, 19 Sup.Ct. 296, 43 L.Ed. 543; Railroad Co. v. Jones, 100 Tenn. 512, 45 S.W. 681; Add. Torts, Sec. 1395. It is plain that the error in the charge, if exception had been taken thereto,-- which was not the case,-- could have been corrected, so far as the defendants were concerned, by rendering a judgment only upon the verdict returned against both defendants. If, on the other hand, a motion in arrest of judgment had been made upon the ground that under the pleadings there could be but one judgment, the error could be corrected by setting aside the separate judgment, and suffering the joint judgment to stand. Neither will this court reverse a judgment for an error which can be plainly cured, without prejudice to another, by a remittitur seasonably assented to. Tefft v. Stern, 21 C.C.A. 67-73, 74 F. 755; Hansen v. Boyd, 161 U.S. 397, 16 Sup.Ct. 571, 40 L.Ed. 746; Bank v. Ashley, 2 Pet. 327, 7 L.Ed. 440, 492; Construction Co. v. Seymour, 91 U.S. 646-656, 23 L.Ed. 341.

2. The plaintiff, by innuendoes, has assigned a meaning to several antecedent sentences or phrases in the alleged libelous editorial, which, in law, they would hardly seem capable of bearing. When antecedent words are capable, as matter of law, of being understood in more than one sense, it is the office of an innuendo to designate that meaning which the plaintiff proposes to establish as the meaning intended by the defendant and understood by those who heard or read them. Townsh. Sland. & L. Sec. 338; Watson v. Nicholas, 6 Humph. 174; Kerr v. Force, Fed. Cas. No. 7,730, 3 Cranch, C.C. 8. An innuendo can neither add to nor change the meaning of the defendant's language, or operate as an averment importing into the case anything which is not a vehement presumption from the precedent words. 13 Enc.Pl. & Prac. 51 et seq. If the plaintiff, by innuendo, has assigned a meaning to antecedent words of which logically they are not capable, the defendant should demur; for whether the language is capable of the meaning designated is for the court. Whether the meaning is, in fact, that assigned, if capable of more than one meaning, is for the jury. Townsh. Sland. & L. Sec. 342. If capable of bearing the sense pointed out by the innuendo the plaintiff is bound by that interpretation, and cannot save his case by...