Reid v. Nichols

• Decision Date: 27 October 1915
• Citation: 166 Ky. 423,179 S.W. 440
• Parties: REID v. NICHOLS.
• Court: Kentucky Court of Appeals

179 S.W. 440

166 Ky. 423

REID v. NICHOLS.

Court of Appeals of Kentucky.

October 27, 1915

Appeal from Circuit Court, McCracken County.

Action by John Randolph Reid against Bell Nichols for libel. There was judgment for plaintiff for one cent and costs, and plaintiff appeals. Reversed.

D. G Park, of Paducah, for appellant.

Berry &amp Grassham, of Paducah, for appellee.

CLAY C.

In this action for damages for libel, plaintiff John Randolph Reid recovered of the defendant, Bell Nichols, a verdict and judgment for one cent and costs. Reid appeals.

Briefly stated, the facts are these: One Marshall T. Finley was found dead, and Bell Nichols, a reporter for the Paducah Evening Sun, wrote an article which was published in that paper on August 5, 1913, which, in substance, charged plaintiff, John Randolph Reid, with the murder of Finley. Thereupon Reid sued the Sun Publishing Company, the owner of the paper, for damages. The trial resulted in a verdict and judgment in his favor for one cent and costs. On appeal to this court the judgment was reversed, and the cause remanded for a new trial, in an opinion which may be found under the title of Reid v. Sun Publishing Company, in 158 Ky. at page 727, 166 S.W. 242, and which sets out at length the libelous article complained of. After the reversal plaintiff brought this action. Over the objection of plaintiff, the cases were tried together and heard by one jury. The trial resulted in a verdict and judgment for $400 against the Sun Publishing Company and in the verdict and judgment against Nichols above indicated.

The first question presented is: Did the trial court err in ordering the two cases to be tried together? Plaintiff insists that, as the actions were separate, he had the right to have a separate trial as to each defendant. The rule seems to be well settled that where several actions are brought by one plaintiff against different defendants, or by different plaintiffs against one defendant, and the issues are the same in each action, the court may, in order to avoid unnecessary delay and expense, order them to be tried together. Whether the cases should be tried together is a matter in the discretion of the court, and such discretion will not be interfered with on appeal, unless it is clearly made to appear that the discretion was abused. St. Louis, etc., R. Co. v. Harden, 83 Ark. 255, 103 S.W. 614; Walker v. Conn, 112 Ga. 314, 37 S.E. 403; Anderson v. Sutton, 2 Duv. 480; Sullivan v. Boston Electric Light Co., 181 Mass. 294, 63 N.E. 904; Worley v. Glentworth, 10 N. J. Law, 241; Jackson v. Leggett, 5 Wend. (N. Y.) 83; Taylor v. Standard Brick Co., 66 Ohio St. 360, 64 N.E. 428; Peterson v. Dillon, 27 Wash. 78, 67 P. 397; New York Mut. L. Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706; Benge's Adm'r v. Fouts, 163 Ky. 796, 174 S.W. 510. Here the defendant Nichols was employed by the defendant Sun Publishing Company. He wrote the libelous article and had it printed in the paper published by the Sun Publishing Company. The issue and the evidence being the same, and it not appearing that a joint trial would place plaintiff in a position not occupied by his adversaries, or would probably give them an undue advantage in the trial, we cannot say the trial court abused its discretion in ordering the two cases tried together.

Another ground urged for reversal is the alleged error of the court in striking from plaintiff's reply an allegation to the effect that defendant failed to publish a retraction within the time limit fixed by the statute, and in refusing to give an instruction based upon such allegation. The statute (section 2438b, Kentucky Statutes 1915) prescribing the effect of a retraction in case of libel, is as follows:

"1. Effect of Retraction. That in any civil action for libel, charging the publication of an erroneous statement, alleged to be libelous, it shall be relevant and competent evidence for either party to prove the fact that the plaintiff requested retraction or omitted to request retraction.

The defendant may also allege and give proof that the matter alleged to have been published, and to be libelous, was published without malice, and that the defendant in the next regular issue of the newspaper or publication, after receiving demand in writing or within seven days if no such demand is made to correct and to retract said statement, or in the next regular issue of the newspaper or publication did publish a sufficient correction, retraction, explanation or rectification, as conspicuously and publicly as that in which said alleged libelous statement was published in the same type and in the same place in at least two successive issues of the same periodical publication accompanied by editorials in which the alleged slander is specifically repudiated.

Upon proof of such facts, the plaintiff shall not be entitled to punitive damages; and the defendant shall be liable only to pay actual damages. And upon the publication of such correction, retraction, explanation or rectification, the defendant may plead same in mitigation of damages.

2. Repealing Clause. All acts or parts of acts in conflict herewith are hereby repealed."

It will be observed that the statute, after providing that either party may prove the fact that the plaintiff requested retraction or omitted to request retraction, further provides that the defendant may also allege and give proof that the matter alleged to have been published, and to be libelous, was published without malice, and that he published a correction, retraction, explanation, or rectification in the manner provided by the statute. In other words, the statute confers upon the defendant the right to show the retraction for the purpose of defeating punitive damages. It does not confer upon the plaintiff the right to show a failure to retract for the purpose of showing malice or aggravating such damages, where, as in this instance, no retraction was demanded by plaintiff. The court, therefore, did not err in striking from plaintiff's reply the allegation referred to, or in refusing to give an instruction based on such allegation.

Omitting the libelous article, which is too long to be published, the court instructed the jury as follows:

"Instruction No. 1. It is admitted by the pleadings and is the undisputed evidence in this case that the defendant Bell Nichols, on the 5th day of August, 1913, wrote and procured to be printed and published in the Paducah Evening Sun the following article, to wit: [Here follows the libelous article.] And the court now instructs you that the law presumes that defendant wrote and procured said article to be published maliciously, or with

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