Saunders v. Baxter

• Decision Date: 30 September 1871
• Parties: R. S. Saunders v. John Baxter.
• Court: Tennessee Supreme Court

53 Tenn. 369

R. S. Saunders

v.John Baxter.

Supreme Court of Tennessee.

September Term, 1871.

FROM KNOX.

Appeal in error from the judgment of the Circuit Court, February Term, 1871. E. T. HALL, J.

CROZIER & SONS for Plaintiff in Error.

Baxter, Webb & Taylor, for defendant in error, insisted:

1. If the subject-matter of the publication is blasphemous or defamatory of an individual, it can not be privileged: citing Townshend on S. and L., ss. 90, 91, 92, 229, 288, 289, 290; Starkie on Slander, 263.

2. The subsequent publication was properly admitted, because it alluded to the libelous article and plainly tended to show the malice with which it was published, and malice is a most material element in estimating the damages in actions of this character; besides, the defendants had attempted to show that the article was published innocently and by inadvertence, and the introduction of the subsequent publication was therefore fairly and strictly rebutting: citing 3 Stephens Nisi Prius, 2254; 1 Chitt. Pl., 397; Lee v. Unsom, Peakes Nisi Pruis; Cook v. Field, Espinasse's Nisi Pruis; Townshend on Slander and Libel, ss. 394-5.

3. In an action of tort the court will not grant a venire de novo because of excessive damages allowed, unless they are so flagrantly outrageous and extravagant as necessarily to evince ill-temper and passion, partiality or corruption: citing Moore v. Burchfield, 1 Heis., 203; Rogers v. Pratt, 1 Hum., 90;Dougherty v. Sloan, 1 Heis., 302.

SNEED, J., delivered the opinion of the Court.

The defendants, Rolfe S. Saunders and Isaac S. Clark, were, on the 4th of September, 1870, the proprietors and publishers of a newspaper in the city of Knoxville, called the “Sunday Whig and Register.” At that time a litigation was pending in the Chancery Court at Knoxville, in which John Baxter, the plaintiff in this action, was the complainant, and Jos. A. Mabry and others were the defendants; and on the day aforesaid, an article, purporting to be a speech delivered by Joseph A. Mabry in said chancery cause, appeared in the columns of the said Sunday Whig and Register. The article contains an angry and violent defamation of the character of the plaintiff and his family, and was introduced to the public in the words following: “Knox county Chancery Court. By permission of Chancellor Temple, the following is published: John Baxter v. Jos. A. Mabry et al. In this case General Mabry arose and spoke as reported substantially as follows:” Then follows the defamatory article. On the 10th day of September next thereafter, the plaintiff brought this action of libel against the said publishers, Saunders & Clark, in the Circuit Court of Knox county. The case was submitted to a jury at the February Term, 1871, and resulted in a verdict and judgment in behalf of the plaintiff for $27,000, from which the defendants have appealed in error. It appears in the proof that at the time of the publication of the article in question, the defendants, who had recently bought the press of the Whig and Register from Joseph A. Mabry, were comparative strangers in the city of Knoxville; that they had only resided in said city a few weeks; that the defendant Clark was a stranger to the plaintiff, and that the defendant Saunders was at the time of said publication absent from the city and knew nothing of it; that the defendant Clark caused said article to be published as an advertisement, without a knowledge of its contents, and at the request of Mabry, and believing it to be, as he states, a part of the proceedings in the Chancery Court in the case referred to, as Mabry had represented it to be a speech of his in said cause. He was admonished, however, by the editor, Col. Rockett, that the article was not a proper one to be published. It is shown, also, that upon the arrival of Saunders he asked who had published the article, expressed his indignation and regret at the publication; stated that he would not have had the article published for thousands of dollars, and said that he would at once call upon the plaintiff and explain the matter. On the following morning he addressed the following letter to the plaintiff, marked “private:” “On my return to the city yesterday, I regretted to find in the Whig and Register a publication concerning the Baxter-Mabry difficulty. It was a matter that I had determined to exclude from our columns even as advertisements, and had I been here, would have adhered to this purpose. The columns having been open to one side, will be offered to the other to the same extent and on the same terms should it be desired, but after that no further publication of a personal character will be admitted under any circumstances or on any terms. This is in no unkindness to either party or to any body, but in accordance with a principle I long since adopted in such matters, and from which I have never deviated, except in this last case, when it was done in my absence. I have no disposition to meddle or interfere with the personal difficulties of others, and certainly none in your case, as our relations have always been friendly and my feelings toward you could not be otherwise.”

On the day the above letter was written, the plaintiff replied thereto in the words following:

“Your favor is received. I can accept no private apology or explanation for the wrong which you have done me. If you want to repair the wrong, do it in an open and manly way. If you do not, my duty to myself and family is a plain one and I will discharge it.”

This correspondence was had on the 5th of September, 1870. It appears that no public explanation was made, and on the 10th of September thereafter this action was commenced. After the beginning of the action, and on the 12th of January, 1871, the following article appeared in the columns of the defendants' newspaper:

“Another Unfortunate Editor.--From the article we copy below from the Cincinnati Enquirer, it will be seen another editor has put his foot in it for $50,000 damages, and the fund will now swell to $400,000!!!

The Enquirer of Monday says: ‘A Col. Baxter, of Tennessee, had a considerable amount of character to dispose of and managed to get himself libeled. He has brought suit against the following papers and persons: Nashville Banner, $50,000; Union and American, $50,000; Athens Post, $50,000; Sweet Water Enterprise, $50,000; Knoxville Whig and Register, $50,000; Joseph A. Mabry, $50,000. If Col. Baxter gets paid for the amount of his damages he will have $350,000--a very comfortable sum. But if he has any character left, he had better keep it. He can not afford to dispose of much more even at the highest market price.”DD’

This latter publication was introduced upon the trial on behalf of the plaintiff to indicate the quo animo and intent of the prior publication of the 4th of September, 1870, upon which the action was brought. The defendants objected to its introduction as evidence, but the objection was disallowed and the article was submitted to the jury. The defendants demurred to the declaration, which is in the simple form prescribed by our statutes, upon the ground that the publication containing the matter alleged to be falsely and maliciously published by the defendants purports on its face to be matter spoken in the course of legal argument in the Chancery Court at Knoxville, in the case of John Baxter v. Jos. A. Mabry, and that the same was published by permission of the Chancellor. The demurrer was overruled, and the defendants thereupon entered a plea of not guilty, and gave the plaintiff notice of the special defense that the matter complained of was a proceeding in a court of justice and that the publication thereof was made in the bona fide discharge of their duty as journalists. The testimony of the Chancellor presiding at the time this alleged speech was made by Mabry, is taken in the case, and is to the effect that Mabry did appear in his court and ask permission to reply to some remarks made on a previous day by the plaintiff, and that, holding a manuscript in his hand, he did proceed to make a speech, but that he, the Chancellor, perceiving the personal and offensive tendency of his remarks, frequently checked him and finally required him to resume his seat; whereupon Mabry observed that he could publish his speech, to which the Chancellor replied, “certainly, that is the proper place to discuss personal matters, and not in this court.” The Chancellor states that about the same conversation occurred between himself and Gen. Mabry afterwards in the street; that he did not suppose that what he said on either occasion could be construed into a permission--which he had no right to give, either as a judge or as a citizen--that the speech which Mabry was prevented from making in court might be published in a newspaper; that his only purpose was to admonish the party that such remarks would not be tolerated in open court. The Chancellor further testifies, that at the time Gen. Mabry attempted to make said speech there was no cause on trial and no motion pending to which he proposed to address himself.

In the progress of the trial the defendant's counsel was proceeding to read to the jury certain letters and articles contributed to the Chronicle newspaper by the plaintiff, of a highly inflammatory character, charging Jos. A. Mabry and others with fraud and corruption in the management of certain public moneys, and tending to illustrate the ferocity of a long and angry feud, which for many years had existed between said Mabry and the plaintiff. The plaintiff objected to partial extracts from those articles, and insisted upon his right to have the whole submitted to the jury; whereupon it was agreed between the parties that the whole should be considered as read and the subject of comment in argument. This opened a wide field of argument not germain to the issues involved in this cause, but which, so far as it related to the matter discussed in these several...