Rabb v. Trevelyan

• Decision Date: 19 October 1908
• Docket Number: 17,024
• Citation: 47 So. 455,122 La. 174
• Court: Louisiana Supreme Court
• Parties: RABB v. TREVELYAN et al

47 So. 455

122 La. 174

RABB v. TREVELYAN et al

No. 17,024

Supreme Court of Louisiana

October 19, 1908

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by William Rabb against Francis Trevelyan and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Benjamin Rice Forman, for appellant.

Foster Milling & Godchaux and Alexis Brian, for appellees Samuel F Heaslip, Louis D. Legarde, Francis Trevelyan, Joseph A Murphy, and D. H. Barnes.

St. Clair Adams, for appellees Daily States and Daily News.

Miller, Dufour & Dufour, for appellee Daily Item.

Clegg & Quintero, for appellee Picayune.

Lawrence O'Donnell, for appellee Times-Democrat.

OPINION

MONROE, J.

Statement of the Case.

Plaintiff brings this suit against six individuals (four of them said to be operating the City Park race track and the other two acting as "so-called" judges of the race) and four corporations (said to be engaged in the publication of newspapers), alleging that the individuals falsely accused him of swindling and of conspiring with one Wishart to cheat and swindle in the running of races at said track without affording him an opportunity to defend himself, and that they published their accusations in the newspapers of the other defendants, and caused them to be published also in New York and St. Louis papers. He alleges that he makes the publications mentioned by him part of his petition, and that he has been injured to the extent of $ 25,000, for which he prays that he have judgment.

Defendants filed exceptions of vagueness and no cause of action, which were overruled. The newspaper companies then answered, admitting the publications attributed to them, denying malice, and alleging that the matter published was legitimate news, and is true. The other defendants deny that they were operating the City Park race track, and four of them (Barnes, Heaslip, Lagarde, and Corrigan) deny that they employed the other two as judges, all of them alleging that the track was operated by a corporation known as the "City Park Jockey Club," of which Barnes was president, Heaslip vice president, and Lagarde secretary, the latter owning no stock in the corporation. Murphy and Trevelyan (the other individuals made defendants) allege that they were employed by the club as judges; that the club is affiliated with the American Turf Association, a governing racing body, under the rules of which they had the right, and it was their duty, to "rule off the turf" any one who might so conduct himself at the tracks over which they might be presiding as to bring racing into disrepute; that under the authority so vested in them on February 8, 1906, they ruled plaintiff off the turf, and that he can have no cause of complaint thereat, for the reason that he entered the City Park race track knowing that it was operated under the rules stated, and thereby submitted himself to the jurisdiction of the constituted authorities.

They further allege that plaintiff was ruled off for conduct that was calculated to bring racing into disrepute, in that he entered into a conspiracy to defraud. They deny that they made or caused to be made either of the publications complained of.

It appears from the record that plaintiff's counsel offered in evidence the different newspapers referred to in the petition, and then made the statement:

"Gentlemen of the jury, we are not suing these defendants for ruling Mr. Rabb off the track. We are suing them for publishing the false accusations. Now I read the charge, a totally different thing. A man might be ruled off the track."

One of defendant's counsel here interposed an objection which led to the court saying to the jury that the statement of plaintiff's counsel was his interpretation of the matter, and thereafter plaintiff's counsel appears to have read the publications complained of and to have "rested" his case. Counsel for defendants then moved the court to instruct the jury to bring in a verdict of nonsuit, and, after some discussion (during which the jury was retired and the court ruled) made the following statement, to which no objection was made, or exception taken by plaintiff's counsel, to wit:

"Gentlemen of the jury, in compliance with the suggestion made by the court, while the jury was retired, in so far as the defendants Samuel F. Heaslip, Louis D. Lagarde, Francis Trevelyan, Jos. A. Murphy, Ed. Corrigan, and David H. Barnes are concerned, the case is closed; the plaintiff and defendants resting their case on the testimony that has so far been adduced. Therefore, in considering your verdict in the matter, you will pay attention to what has occurred up to this part of the proceedings; all further evidence having reference to the newspapers.

"By the Court: I understand that the case is closed now as to all the defendants except the newspapers?

"By Mr. Adams (counsel for defendants): 'Yes, sir.'"

And the trial then proceeded upon the theory thus announced. Joseph A. Murphy testified that he and Trevelyan were employed as judges by the --

"City Park race track, though the corporate name was 'City Park Jockey Club'; that they ruled plaintiff off the track principally, though not entirely, upon the testimony of Mr. Edgcumbe, who was, or had been, official timer at the Union race track in St. Louis; that the duties of judges are to place horses at the finish, to pass on all questions of foul riding, and to enforce discipline against jockeys, owners, trainers, or bookmakers who are engaged in fraudulent practice in contravention of the rules of racing; that he suspended Kirby D. Orr's stable in St. Louis in 1905 in connection with the running of Capitano, the same horse that ran in New Orleans the following winter; that plaintiff's reputation was bad; that he (plaintiff) was not present when Edgcumbe gave his testimony, and had no notice to be present; that under the recent rule the powers of judges of a race track cease with the close of the present meeting, and anybody who is disciplined has the right of appeal to the association and the main body, which in that case was the American Turf Association. Consequently our rulings are ex parte, because it is more of an indictment than a final ruling."

The witness further testified that the ruling in question was made by Trevelyan and himself in writing, and he identified the original instrument, which was offered in evidence, but is not in the record.

U. S. Wishart, called by defendants, testified that he was an owner and trainer of horses at the City Park race track, and, with plaintiff, was ruled off the turf on February 8, 1906; that plaintiff was introduced to him at the Suburban track by Kirby Orr, who told him that plaintiff was a great better, and that he wanted to make him a winner; that witness, having two horses to start, Tarpy and Ott Seago, was confident of the former and that plaintiff bet on him and divided his winnings with Orr; that afterwards (as we understand the testimony) plaintiff came to witness' house one night, and wanted him to run Tarpy at the Suburban track, said he would put in a book, and guaranteed that he would take in $ 1,000, and would "cut the sheet" (divide the winnings) with witness; that subsequently, at witness' suggestion, plaintiff bet on Tarpy at the City Park race track, and, after the race, stuck a roll of money in witness' pocket which, when counted, amounted to $ 40; that in January, 1906, plaintiff and Orr spoke to witness about Pat Bulger, a horse that he was training for R. L. Thompson of New Jersey, and were told by him that Pat Bulger could not win the race for which he was entered; that witness' son, a jockey who usually rode for him, would ride Airship (another horse, entered for the same race); and that witness had employed Nicol (reputed to be an honest boy and the best jockey on the track) to ride Pat Bulger. Witness states that in the opinion of horsemen Pat Bulger was the best horse entered for the race, and he explains what he thereafter did and left undone by way of accounting for his confidence in the inability of the best horse and favorite, with the best jockey (and an honest boy) on his back, to come in a winner; the explanation being about as follows: When the horse was expected to win, he was provided with blinkers, and was given a "toddy to keep his throat open," but on the occasion in question he was denied both blinkers and "toddy." On the other hand, the witness provided him with a lead pad, in the shape of the frog, for one of his feet; the pad being covered with pitch, to which the dirt would adhere, which, as the witness observes, "impedes the speed of a horse." The event proved that his confidence was not misplaced, for Airship won the race. In the meanwhile plaintiff was to, and, we think did, lay heavier odds against Pat Bulger than other betters and bookmakers were giving, and thereby obtained more bets and made his profit. Wishart testifies that the consideration moving in his direction, was merely plaintiff's promise that at some future time and when assured of winning he would make a bet for his (Wishart's) benefit. He further testifies that upon the evening of the day upon which Pat Bulger was beaten plaintiff called at his boarding house, and, suggesting that Tarpy was entered for a race on the Suburban track to come off the next day, and being assured that he was likely to win, proposed that witness should dope him, or should allow plaintiff to give him a handful of lime, saying:

"We will take in at least $ 1,000, and I will cut the sheet with you [meaning that he would make a book and divide the profits]."

The witness testifies that he declined the proposition, the only reason he gives for having done so being that he felt pretty...