Upton v. Times-Democrat Publishing Company

• Decision Date: 01 January 1900
• Docket Number: 13,501
• Citation: 104 La. 141,28 So. 970
• Court: Louisiana Supreme Court
• Parties: THOMAS J. UPTON v. TIMES-DEMOCRAT PUBLISHING COMPANY

28 So. 970

104 La. 141

THOMAS J. UPTON v. TIMES-DEMOCRAT PUBLISHING COMPANY

No. 13,501

Supreme Court of Louisiana

January 1, 1900

APPEAL from the Civil District Court, Parish of Orleans. -- Theard, J.

D. M. &amp Allan Sholars, for Plaintiff, Appellant.

Lawrence O'Donnell, for Defendant, Appellee.

E Howard McCaleb, for Postal Telegraph Company, Called in Warranty, Appellee.

OPINION

BREAUX J.

Plaintiff sued the defendant for damages in the sum of five thousand dollars for publishing a telegraphic dispatch, in which it was stated that "The Rev. Thos. J. Upton is a negro."

It appears that at a meeting of the Police Jury of the parish of East Baton Rouge, a petition was read by the Rev. Upton, asking that body to order an election in that parish with a view of prohibiting the sale of intoxicating liquors. There was a counter petition presented by another resident of the parish in favor of the indefinite postponement of such an election.

The Baton Rouge correspondent of the defendant company sent a telegraphic account of the meeting to that company for publication. The correspondent and representative of that newspaper in Baton Rouge, prompted by a desire to be complimentary to the Rev Mr. Upton, stated in the dispatch that he, Upton, by whom the petition for an election was presented, was a cultured gentleman; and that his arguments in favor of an election were eloquently presented. In transmitting the dispatch, a mistake was made. The word "cultured," as written by this correspondent, was changed to "colored," and the dispatch read that a "colored gentleman," instead of a "cultured gentleman," had presented the petition. At the office of the Times-Democrat, the words "colored gentleman" were changed to "negro," for the reason that the latter word is always used by that paper as the proper word.

Naturally enough, the dispatch coming to plaintiff as it did, must have aroused his indignation. He lost no time in seeking the redress to which he was justly entitled.

The day of the publication (viz. 13th September, 1900) of the telegram in question, he wrote to the proprietors of the Times-Democrat, complaining of the gross injustice done him, and informing them that he had placed the matter in the hands of his attorneys. This letter was received the day after it had been written.

The assistant editor of the newspaper, in charge in the absence of the night editor, received notice by telegram from the Baton Rouge correspondent of the newspaper at about twelve o'clock at night, September 13th, stating that a mistake had been made in the issue of that day by changing "cultured" to "colored." This was the first intimation of the mistake. It was received too late, defendant urges, to correct the error in the paper of the 14th, as there was some rush in issuing the paper; and, furthermore, there was no time that night to make the investigation, which the night editor in charge desired to make, in order to place the responsibility where it belonged.

In answer to Mr. Upton's letter, received on the 14th of September, this assistant editor wrote a retraction, and, in substance, stated that the mistake had been made by the Telegraph Company; that they were sorry that a mistake had been made; that the word had come to them "colored" instead of "cultured;" and that the moment they found out the mistake, they determined to retract and that to the retraction would be given the same prominence as had been given to the original mistake. The retraction of the Times-Democrat was published on the fifteenth day of September, and stated that Rev. Upton was of the purest Caucasian race; that he was at one time the president of the Homer College, in Claiborne Parish, and that he is an eminent minister of the Gospel, a member of the Louisiana Conference of the Methodist Church and pastor of the Zachary Church in East Baton Rouge.

In the pleadings, in answer to plaintiff's demand for damages, defendant disclaimed having been actuated by malice; alleged that the error had been committed by the Telegraph Company, and averred that the mistake was timely corrected after it had been discovered.

Defendant called the Postal Telegraph Company in warranty. The company thus called in warranty, interposed an exception of no cause of action, for the reason that libel is a quasi-offence, and no warranty exists where damage is claimed for an offence or quasi-offence. This exception was sustained, and no appeal was taken from the order dismissing the prayer for a call in warranty. In consequence, the issues before the court are, exclusively, confined to judgment for plaintiff against the defendant.

The judge of the District Court pronounced judgment in favor of Thomas...