Daniel Baker v. Brainerd Warner No 41 Daniel Baker v. Brainerd Warner No 42

• Decision Date: 22 December 1913
• Docket Number: Nos. 41 and 42,s. 41 and 42
• Citation: 58 L.Ed. 38,34 S.Ct. 175,231 U.S. 588
• Parties: DANIEL W. BAKER, Plff. in Err., v. BRAINERD H. WARNER. NO 41. DANIEL W. BAKER, Plff. in Err., v. BRAINERD H. WARNER. NO 42
• Court: U.S. Supreme Court

231 U.S. 588

34 S.Ct. 175

58 L.Ed. 38

DANIEL W. BAKER, Plff. in Err.,

v BRAINERD H. WARNER.

NO 41.

DANIEL W. BAKER, Plff. in Err.,

v. BRAINERD H. WARNER.

NO 42.

Nos. 41 and 42.

Argued November 5, 1913.

Decided December 22, 1913.

The plaintiff, Baker, United States district attorney for the District of Columbia, sued the defendant, Warner, for libel. Briefly stated, the complaint charges that:

The Washington Jockey Club owned a race track in the District where races were run and bets were made and in January, 1908, the plaintiff, as district attorney, had obtained from the grand jury an indictment charging one Walters with betting at this race track, contrary to the statute against gaming in the District. A demurrer was filed, which was sustained on March 11, 1908,—the court holding that the laying of bets on horse races, at this track, was not a violation of the act of Congress, which, as appears by reference to the statute (D. C. Code, § 869, 31 Stat. at L. p. 1331, chap. 854), only prohibited such betting and bookmaking within 1 mile of the boundaries of the cities of Washington and Georgetown. The plaintiff immediately took an appeal from this judgment in order that the court of appeals might determine whether such betting at such place was a violation of the gaming law of force in the District.

Shortly after the appeal, the Spring Meet of the Jockey Club began, being advertised to continue until April 14th. On the opening days of the Meet there were bookmaking and betting; but the complainant alleges that the plaintiff, 'conforming himself, as it was his duty to do, to the law as judicially construed by the supreme court of the District, did not issue warrants for the arrest of or present to the grand jury any persons for betting on the horse races.'

It is further alleged that at this time Warner was a candidate against Pearre for the nomination for Congress from Maryland, and, on March 28th, Warner composed and published, of and concerning the plaintiff, and of and concerning the office of the plaintiff, in a Washington newspaper, a certain false and defamatory libel. The article need not be set out at length, but the communication, after characterizing a speech by his opponent as undignified, proceeded to say that it was not wanting in dignity so much as for a judge of the District, 'who, with the United States district attorney (meaning the plaintiff), went to Rockville (meaning the town of Rockville, county of Montgomery, state of Maryland) last Saturday (meaning Saturday, the 21st day of March A. D. 1908) to attend a conference of Mr. Warner's (meaning defendant's) enemies, and determine what ammunition was needed to defeat him.

'The question now is, Where does the money come from in the contest against Mr. Warner? (meaning the defendant.)

How about the race track?

Lawyer.'

'meaning thereby, . . . that the said plaintiff entered into a conference with others for the purpose of determining what funds were necessary, and how same should be raised, to be used in the campaign in behalf of Pearre, and meaning . . . that the plaintiff was and is corrupt, in not presenting to the grand jury and prosecuting before the courts of the District, persons laying bets upon the contests at the race track, in consideration of contributions of money in the contest against the defendant from some company or person interested in the race track or the contests carried on thereon.'

The defendant filed a general denial, and, after a trial, there was a verdict in favor of the plaintiff. Motions for a new trial and in arrest of judgment were overruled and the case taken to the court of appeals, which held not only that reversible error had been committed, but that the judgment should have been arrested. In No. 41 the case is here on a writ to review that ruling. To avoid any question as to the finality of that judgment of the court of appeals plaintiff sued out another writ of error (No. 42) after the judgment had been arrested in the trial court.

Messrs. Frank J. Hogan and Henry E. Davis for plaintiff in error.

Messrs. J. J. Darlington and W. C. Sullivan for defendant in error.

Statement by Mr. Justice Lamar:

Mr. Justice Lamar, after making the foregoing statement of facts, delivered the opinion of the court:

The plaintiff, who was United States district attorney for the District of Columbia, sued the defendant in an action for libel, and recovered a verdict for $10,000. The court of appeals (36 App. D. C. 493) held that the judgment should have been arrested, for the reason that the publication was not libelous per se, and was not shown to be defamatory by any averment of fact in the inducement or in the colloquim.

The publication was not libelous per se. The meaning of the article and person to whom it referred was so ambiguous that, in order to constitute a cause of action, it was necessary to set out extrinsic facts, which, when coupled with the words, would show that the writer charged the plaintiff with corruption in office. Accordingly, the plaintiff, in the inducement, averred that he was district attorney, charged with the duty of prosecuting violators of the law against gaming, and had procured an indictment against one for betting at the Washington Jockey Club, which indictment had been quashed, and, pending the appeal, and conforming to the ruling of the court, he had instituted no other prosecutions: That, under these circumstances, the defendant had published of and concerning the plaintiff, the article which is set out in the complaint.

There were general allegations that the article was written concerning the...