Statement
by TAFT, Circuit Judge:
This
was a writ of error to reverse the judgment of the circuit
court in favor of Theodore F. Hallam against the Post
Publishing Company for $2,500 for libel.
After
the proper averments of jurisdiction, the petition of the
plaintiff below stated his case as follows:
'Prior
to October 14, 1892, plaintiff, as was well known to the
people of Kenton county, Kentucky, where he lived, and to
the people of Hamilton county Ohio, and other counties of
Ohio, was a candidate, in competition with Albert S. Berry
similarly well known to be such candidate, and in
competition with other candidates, for the nomination
before the Democratic convention of the sixth Kentucky
congressional district, for the office or representative in
the congress of the United States for said district. That
for a long time prior to and on October 14, 1892, defendant
was engaged in the business of composing, printing,
publishing, and circulating a daily newspaper called the
Cincinnati Post, which paper it claimed on that day had a
daily circulation more than double that of any other daily
paper in Ohio, save one in Cleveland, and a circulation in
Cincinnati and Hamilton county on week days 10,000 in
excess of the combined circulation of the English morning
papers and the only other English evening paper. Prior to
the meeting of said convention, which met at Warsaw,
Kentucky, plaintiff contracted with the St. Nicholas, a
company engaged in the business of catering and keeping a
hotel, acting through E. N. Roth, to furnish, on board the
steamer Henrietta, food and drink for the use of delegates
and friends of said Hallam, who were about to proceed on
said steamer to Warsaw to attend said convention, for which
said food and drink so to be furnished, and which was
thereafter furnished, by said St. Nicholas, said Hallam
agreed to pay said St. Nicholas. At said convention, after
it had been in session for several days, and many ballots
had been taken without a nomination being reached, said
plaintiff finally requested the delegates from his county,
who had continuously voted for him, to cast their next
ballot for said Berry, and thereupon on the next ballot, by
the aid of the votes so cast by the delegates from Kenton
county, said Berry was nominated as the candidate for said
office by said convention on September 30, 1892. And
thereafter, on October 14, 1892, defendant, knowing the
premises, composed and published in its said newspaper, of
and concerning the plaintiff and his conduct as a candidate
for nomination at the hands of said convention, the
following false, malicious, and libelous article:
"Berry
Paid.
"Expenses
of Theo. Hallam in the Sixth (Ky.) District Contest for the
Nomination of a Democrat for Congress.
"The
Berry-Hallam congressional fight in the sixty Kentucky
district is still on,--that is to say, Banquo's ghost
bobs up now and then, to the annoyance of the congressional
nominee, Berry, and the mortification of the defeated
candidate, Theo. F. Hallam. The Boone County Recorder
delivers a broadside at the Kenton county delegates, and
naively asks: 'Why don't they come out and tell the
truth about what induced them to go to Berry? The world
knows.' Yes, the world knows, and you may say Mars and
the planets know it also. Proprietor Roth, of the St.
Nicholas Hotel, has an inside cinch on this inside
information. Everyone knows Colonel Berry. He is a
monopolist, corporation controller, millionaire speculator,
political wirepuller, first-class hustler, and a pretty good
sort of a fellow. Hallam is a successful lawyer at Covington;
but legal eminence does not mean the fat incomes that are its
synonyms on this side of the Ohio. Hallam is one of the
bhoys, loves ward politics for the fun, if not the
emoluments, and is about as poor as a church mouse. In fact,
he owes several hundred dollars for taxes. The two counties,
Kenton and Campbell, threw out their hooks for the
congressional nomination. Kenton swore by Hallam, while
Campbell vowed that the political friend and chum of
Carlisle, Cassius M. Clay, Jr., and Charles J. Helm, their
own millionaire and boss, Albert S. Berry, should be the
nominee. The fight waxed hot. The convention was held at
Warsaw, commencing on September 27th, and ending September
30th. The Kenton boys prepared for the fray. The principal
preparation consisted in engaging the steamer Henrietta to
carry the delegates to Warsaw, and the carte blanche orders
of Mr. Roth, of the St. Nicholas hostelry, to fill her up
from truck to keelson with the best the cellar and the larder
of the house afforded. As one delegate remarked: 'Why,
the champagne flowed off the decks so much that even the
Henrietta was swimming in it.' Hallam and his crowd did
all the feasting and the drinking. The Campbell county men
were not in it. But the bill was made out to Colonel A. S.
Berry. Here is the bill: 'St. Nicholas. Edward N. Roth.
Cincinnati, October 10, 1892. Colonel A. S. Berry, per
Theodore F. Hallam, to the St. Nicholas Hotel Company, Dr.:
For meals, service, wine, and cigars served on board the
steamer Henrietta, $865.15.'' Then again: 'At
Warsaw the battle raged four days. On the last day Colonel
Berry and Lawyer Hallam were seen to go arm
in arm to the rear of the courthouse, where the convention
was held. They had a quiet and confidential chat. At its
conclusion Hallam called his warriors about him, and spoke to
them in whispers. Immediately thereafter the whole Kenton
county delegation cast its vote for Colonel Berry, and he
received the nomination. Is Colonel Berry carrying out all
and every one of the promises he made? Ah, there's the
rub. Mr. Roth, of the St. Nicholas, has sent a bill of
$865.15 to Colonel A. S. Berry. That bill is for
'dry' and 'wet' provisions ordered by Hallam,
and disposed of by Hallam's supporters. Such generosity
on the part of the victor to the vanquished is truly
touching.' Thereby meaning that said Hallam, had
requested his supporters, the delegates from Kenton county to
said convention, to cast their votes upon the conclusive
ballot for said Berry, in pursuance of a corrupt
understanding or bargain between said Hallam and Berry, and
for a pecuniary consideration to be paid by said Berry, and
particularly upon the understanding that, in consideration of
said Hallam's procuring the said delegates from Kenton
county to cast their votes on said ballot for said Berry,
said Berry would pay to the said St. Nicholas the bill for
the food and drink which said Hallam had ordered, and for
payment of which said Hallam was liable to said St. Hicholas.
Wherefore plaintiff prays judgment against defendant for
damages in the sum of ten thousand dollars.'
The
answer of the Post Publishing Company was as follows:
'And
now comes the Post Publishing Company, defendant in the
above cause, and for answer to the petition therein says:
It admits that it is a corporation organized under the laws
of Ohio, and a resident of that state. It admits that prior
to October 14, 1892, the plaintiff was a candidate in
competition with Albert S. Berry at the Democratic
convention for nomination of a Democratic candidate for
congress in that district. It admits that it was engaged on
October 14th in printing and publishing the Cincinnati
Post, of the circulation described in the said petition. It
admits that plaintiff contracted with the St. Nicholas
Company, or Hotel, for the supply of provisions, food, and
drink for the use of delegates attending said convention;
that said food and drink were thereafter furnished on board
the steamer Henrietta, and, if need be, elsewhere, for
which the plaintiff was to become, and did become,
indebted. It admits that, after a session of several days
of the said convention without nomination, the delegation
from Kenton county, being the county of the plaintiff, at
plaintiff's request cast their votes on a final ballot
for said Berry, and thereby secured his nomination on the
30th day of September, 1892, having previous thereto
continuously supported plaintiff as against said Berry. It
admits that it published in the Cincinnati Post the article
contained in said petition, but denies each and every other
allegation thereof.'
The
evidence of the plaintiff and his witnesses tended to show
that the charge or insinuation that he had received any
consideration for influencing his supporters to transfer
their votes to Berry was wholly unfounded; that Campbell, the
Covington reporter of the defendant, falsely representing
himself by telephone to be Berry's son, requested the St.
Nicholas Hotel to make out Hallam's bill, and deliver it
to the messenger he would send; that, thereafter, another
employe of the defendant, also representing himself as
Berry's son, went to the St. Nicholas Hotel, and got the
bill against Hallam, but afterwards brought it back, and said
that he did not want the bill made to Hallam, but to Berry
per Hallam, and the bill to Col. A. S. Berry per Theodore F.
Hallam was accordingly made out and delivered to him; that
this conduct of the reporters of the defendant was without
the knowledge or consent of Hallam or Berry. The evidence for
defendant tended to show that the employes of defendant had
not suggested the form of the hotel bill, and to show good
faith and no malice in the publication.
The
article set forth in the petition was an abridged statement
of the contents of a much longer, more detailed, and more
conspicuous and sensational article, which appeared in a
paper published by the defendant, called the Kentucky Post.
In the longer article was printed a fac simile of the bill
obtained from the St. Nicholas Hotel by defendant's
employes. The...
