816
FEDERAL REPORTER.
defendant, give her a larger verdict than she is entitled to, or a less verdict out of favor or through affection for the defendant,-just as in such a. case I should feel that it was my duty to call upon a jury trying that case to punish you severely on account of your action. But this case is not such a case. The plaintiff introduced no testimony tending to show that the, defendant had any malice or feeling against her; on the contrary, it affirmatively appears that the article as published by the defendant was taken from a neighboring sheet as a mere matter of news, so that no circumstances of aggravation, wantonness, or malice,which justify and 'oftentimes compel a ringing verdict for the purpose of putting a stop to such wrong, exist in this case. I do not mean to say that that takes away Jrom this plaintiff; inthe slightest de"gree, the right of compensation for the injury which she has suffered. I simply mean to say to yo\1gentlemen that it is your duty to inquire simply how much has this plaintiff been injured. What will com pen'sate her for the wrong that has been done? And that amount she is entitled to at youl'hands. .Howara we to deterinine what is compensation, is the thing to be coilaidered.' It may be a matter of comparatively little moment if the itself trivial. If the ,publication against a politician was simply that is.aliar, you might say that that was not a very aggravated charge; but when you oharge a grave and serious crime against another, thEm the injury to character is certainly of a different kind. Now I need. not say to you that a charge against anyone of a crime of this· character is to charge an offense ofa serious nature. It is humanwithu$; we could not be men, honest men; and not feel shocked to think that a girl would commit a crime so revolting as incest with her own brother. Another matter for you to consider is this. What was her charac,ter,her reputa1lion? We use the term "charactel'''often in two senses: in one sense it is 'used to refer to one's actual life; in another, and that is the sense in which we use Hin this case, it is the reputation which we bear in the community_ Of course, what you may say about me does not change me. If I am an honest man, if my life has been pure, the Jactthat everyone of you may say that I am dishonest and impure does .not change the fact. My life, my character in that sense is not changed; bU,t if I have lived during 50 years of life in such a way that the com· niunity believes I am an honest man, that I am a pure man, that is my · reputation in the community in which I live. If you publish a false statement that lam dishonest, that I am impure, you know bow people will float this statement from one to another, until the community may , come to believe'that I am dishonest and impure. By this libel you have injured my reputation in the community, and that is something · which every honest man prizes,-his good name in the community in which he lives. Now if it so happens that my life has been dishonest and impure,and you charge me with that, and prove that thatis the fact, then I 'am entitled to nothing, for you have simply made public the actual truth. So, on the other hand, if, whatever may have been my actual life, the community here believes that I am dishonest, that I am
EDWARDS V. KANSAS CITY TIMES CO.
817
impure, then your statement to that effect makes very little impression upon my reputation; the people already believe it, already think that is so, and so I have not suffered; my reputation has not been damaged by your statement. . Now go a little further: suppose it be true that I am known in the community, and justly so, as a common drunkard, a bar-room loafer, one that every man despises as he meets, and one of you should circulate or publish a statement against me that I .had told a lie, or that Ihad stolen money. That may not have been my reputation before. People may simply have looked upon me as a mere wreck, a dissipated and worthless man, and may not have looked upon me as one who was a liar or a thief. Of course, in a certain sense, by that publication or statement you have injured my reputation; you have gotten people to believe I am worse than they thought me before; but, on the other hand, if I had suoh a reputation, how naturally you would say: "Well, it .does not hurt much. People thought of me about as badly before as they do after the' statement; my character and reputation in the community is notwQrth much; you cannot hurt that which is already badly injured." Now that thought comes right into this case. The defendant says tlu\,t the plaintiff's character is bad; that her reputation in the community was not that ofa pure, truthful, honest, upright woman; and though this specifio oharge may not be teohnically true, yet she was not hurt muoh, because it only added to a bad reputation that she had already. Now, in respect to her reputation, you have the testimony of these witnesses as to what it was in that community; you have also the testimony of one witness in which he says that he saw this plaintiff and her brother intercourse. If it be true that she did have that incesthaving uous intercourse with her brother, then, although it may not be true that she was ,pregnant as a result of that intercourse, your common sense tells you her reputation was not badly injured; she has suffered very little by this additional charge. But the plaintiff .says there is no foundation for this testimony of Morgan Miller's. She says that it is not true, and you have her testimony as against his. She says, also, that upon the face of his testimony it is apparent, from its contradidions, its misrecollections, that he was not telling a true story. She says it is not true, because, as he locates himself, it was impossible for him to have looked into that little log-house and seen anything, as he tells. says that it is not true, because it is contrary to human experience that parties, intending such a violation of law and decency, would commit the offense in such a public manner, with the door open, and that door opening towards the house in which her parents and brothers and sisters lived, and where persons might be expected to be. It is not for me to decide these questions of fact. That is your province. I simply leave the question for you to determine, saying. that it is but common sense, common justice, that if she were guilty of such an offense, though technically, your verdict must be for the plaintiff, her reputation has not been iQjured seriously by this charge. Again, it is said. that she perjured herself, and that fact was kQown, and that berreputation is that of one guilty oj perjurYi and it is said v.32F.no.13-52
818
ihat at, the coroner's inquest she testified, and testified falsely, that her brother was at home on the a:ftemoon of this murder. ' She says that she gave n<;> false, no perjured 'testimony;. that she intended to say that which was true before the coroner's jury,. as well as on the evening of Thursday :or Friday thereafter. It is for yOll to say whether her explanation is correct or not; whether she did, in fact, perjure herself or not. She further says that even if it be true that before the coroner's jury she did perjury 1 it was done through a sister's love for her brother, and to shield him from the suspicions of so revolting a crime as the murder of these two little girls. Now if you find that she did commit perjury, then the question for you to consider is, whethertbat explanation takes 'Rway the moral quality of this offense; whether there is an apology, ex.ouse foir, a sister,believing her brother innocent of a crime, to perjure ;herself to shield him from suspicion. While, of course, it would not detract in the slightest degree from the legal character of the offense, it would not make her any the less a perjurer, yet it is for you to say 'whether tHat did or did not take away the, moral enormity of the offense. ;Now, taking;alI these: things together, what was the character of this female plaintiff? Was it good' or bad? And, according as it is good or bad, so it is more or less injured by the accusation made against her in this particular; for, as I said at the outset, to charge against a pure woman, known to be pUre, and having a good reputation in the community, suchan offense'is a serious accusation. To charge that against (me who hall Jorfeited her goodname by her own condnet is not so serious an acousation. ' 'Another matter I forg.ot'to notice, and that is, the testimony of one or two witnesses as to herconduet at the time of the funeral of these little girls, as well as, the testimony ,of one or two witnesses 'as to- her conductat,tl1e times these ,gentlemen 'called upon her at the house. ' Some ()fthese witnesses sa.y, that ill' the sad' hour of ,that' funeral this girl was ,there laughing,an<J, making apparently light of. ,the ,sadevellts which 'were passing, and that she seemed at the time of this interview. to be laughing,onnickering, manifesting a feeling of indifference. Now if ,that isa11 true,' it simply throws light upon the question of the girl's charadter.: Of course itdQes notfollow from that that she was impure ,<lr lintruthful,but it is simply a circumstance to place before you the tr.ue character of the plainliff. NoW the defendant says; conceding all 'the plaintiff claims, conceding that she may be' a pure ing she may"havebeen a truthful girl,conceding her reputation is perfectly good; yet this artide was published, not from any malice against the plaintiff, not through any negligence, or picked-Up information obtained from'listening to the scurrilous story of some disappointed and disgruntled 'neighbor, but was published as a m/ltter of news, taken from '8. respectable sheet, published in the vicinity of this murder, and that is a m'll.'ttel' to be considered by the jury. Although a newspaper may be actuated from no personal maliee{and haven<rprivate feelings' to gratify, .yet '& case might arise where, with great negligence; it takes a story from party, who seeks this wayofgettihg a libel beforethe · I. "
EDWARDS V.
CITY TIMES CO.
819.
community. Take this very case: suppose there was some'one in this, little village of Flag Springs who, through business troubles·. through jealously, or from ill will, desired to wrong and injure the plaintiff, and came to any newspaper and told such a story as this, and without any inquiry of the responsibility of the party telling it, without any efforts to find out the truth, such paper published the charge, you would feel that there was negligence on the partof the defendant,-an indifference to the rights of others which certainly would demand serious attention. at your hands; for the law is that a mall cannot shield himself from responsibility for a libel by the fact that some one told him, and if he took the statement of some person whom at the time he did not know,took the statement of such person without making any fair and reasonable inquiry ,-you would very properly say that that was negligence on his part, and he should be held to a fuller and larger responsibility. The defendant says it did nothing of this kind; that it found in a responsible sheet, published in the vicinity of this murder, this item of news, and published it without. head-lines, or without anything to attract unnecessary attention, as a matter of news affecting such a terrible tragedy as this. Of course I do not mean to say that the fact.' that the information in this article was thus obtained, relieves the defendant of responsibility,or justifies you in failing to, give compensation to the plaintiff for the damages which she has suffered;'but it is a matter to be considered' by you, because it is a function and duty of newspapers to furnish infol1mation to its readers of the current events. I say, it would be a physical impossibility to send an agent to every place, where events, tragedies are transpiring, to ascertain by personal examination the exact facts. A paper could not give us all which we have a right to hear of current events of the day. When Garfield was shot every man in the land was eager to know all the particulars in full, with all informa· tion concerning the event and its surroundings. 8uppose, in such a, time as that, a paper in the far west published an untruthful statement coming by the associated public press dispatches, or borne to it frqm some Eastern and reputable paper, which represented something about an in,dividual in Washington which was not true, the paper would take the risk of the 'untruth, and must compensate for any damages which were suffered, butat the same time it would be acquitted of that which we call negligericeand wantonness in the publication; and so the def(;llldant, conceding for this question all that the plaintiff may claim, says it simply discharged the functions of a newspaper; gathering from all quarters of the land information respecting every event of public interest, and that this fearful murder of these innocent children was something which sent a thrill of horror through all this western community, and that every fact connected with it was eagerly sought after, and so in the honest and faithful discharge of its duties to the public it published that which it had every reason to believe was the truth. These matters are to be considered on one side or the other of aggravation, or mitigation of damages. You are to see to it that plaintiff is compensated for the injury which her character has sustained; but while doing that you are
820
not required to render such a verdict as will put a check and stop UpOD the legitimate pursuit of information in respect to matters of public interest. Of course you wiJllook at this question of mitigation as it is suggested in view of the facts that transpired before the publication. Any matters which have transpired subsequently thereto, do not come in to mitigate. At the time the publication was made, what was the condition of affairs?Upoll what was it made, and was it upon a reasonable or unreasonable belief in the truth of it? There is another rule of libel, that where the party, having been sued for libel, justifies, as it is called,that is, comes in by answer and says the charge is true,-that is to be considered as a repetition of the libel; that the party, if it was not true, should say it is not true, and should offer merely his matter in mitigation of damages.· On the other hand, if defendant had reasonable ground to believe it,was true, it had a right to have that fact inquired into by a jury, and may tender that defense in his and though he may fail, and though he may not justify as to the whole charge, may not say that it is all true,he is at liberty to,·come in and say a part is true, andHas to the whole I pUblished under these circumstances. You are the sole judges of the credibility of all the witnesses. It is not my province to say that any witness has or has not told the truth. Many of them you have seen; heard from their lips their story; seen their appearance on the stand. The others have spoken to you through their depositions, after examination and cross-examination, and you have heard their story with their contradictions, if any, and it is for you to say how much credence you will Kive to any and all. I believe, gtJUtlemen, that is aU I need to say to you. I commend this case to .you, believingthat you will do what is right, and justice between this tiff and It is, of course, not the idea of libel suits that the plaintiff is to make money and speculate out of her reputation. What a libel suit means, in cases where there is no willful misconduct, is that the plaintiff shall be compensated for the damages which her or his character may have suffered. Here is this case; it is for you, as 12 sensible. intelligent men to say by your verdict how much this plaintiff's character and reputation has been in fact damaged by the publication of this article in the Times. When that amount is found you will name it in your verdict. The form of your verdict will be this: "We, thejury, find for the plaintiffs, and assess their damages," (because husband and wife join as plaintiffs,) "at the sum," which you will name, and which you all agree upon as a fair compensation to her. The jury found for the plaintiff in the Bum $500.
HASTINGS & D. RY. CO. V· .sT. PAUL, S. & T. F. RY. CO.
821
HAOTINGS& D. Ry. CO.
V.
ST.
PAUL,
S. & T. F. Ry. CO.
(Oirct£it OOt£'I't. D. Minnesota. December 12,1887.) 1. PUBLIC LANDS-RAILROAD GRANTs-WHEN TITLE VESTS.
Lands in controversy between two railroad companies. grantees under acts of congress,--'-complainant under act of 1866, and defendant under acts of 1857 ang1865,-were within the place limits of complainant's road, and witldn the indemnity limits of the road of defendant. Complainant's definite location was made before any selection by defendant. The lands in dispute were conveyed to defendant in 1871 and 1872. Complainant's road along these lands was finished in 1879, and application made for entry in 1883. which be-, ing refused, complainant brought suit in 1886. As against the holding of t!:le United supreme court that no title passes to indemnity lands untilselection, and that as to place lands the title vests on completion, and relates back to the date of grant, and is specifically fixed by the definite location of the road upon the tracts of the place limits, defendant urged the administration ,of these grants by the land department, both in Minnesota and in Washington, as a construction and determination of the law. Held, that there is no reason why, both parties being e,ither may not insist as against the other, oponthe fullmell,sure of tberights given it by the grants. In such R case, neither party can set up the statute of limitationsasR defense until it begins to run.
2.
,
SAME-RAILROAD GRANTS-WHEN "l'iTLE VESTS-LIMITATION OF ACTIONS.
Bill by complainant, the Hastings & Dakota Railway Oompany, for p'ossession of lands held adversely by defendant, the St. Paul, Stillwater & Taylor's Falls Railway Oompany. Gordon E. Cole, for complainant. Tlwmas Wilson, for defendant. BREWER, J. These two companies above named are land-grant companies. The acts of congress under which the defendant daims are those of 1857 and 1865, while the complainant claims under the act of 1866. The lands in controversy are lands within the place limits of the complainant's road, and within the indemnity limits of the road of the defendant. The supreme court of the United States has in several cases within the last six or seven years affirmed these two propositions: That no title passes to indemnity lands until selection; and that, on the other' hand, in the case of place lands, the title vests on the completion of the road, but relates back to the date of the grant, and is specifically fixed by the definite location of the road upon the tracts within the place limits. In other words, if the road is finished, then the lands in place, not already otherwise appropriated at the time of the definite location, become the property of the company that has done the work, the donees of the grant, and the title takes effect and dates back to the date of the grant. In this case the definite location of the complainant's road was made before any selection was made by the defendant. Applying these two ptopositxons affirmed and reaffirmed by the supreme court, there would seem to be· no chance for dispute upon the legal proposition' that the title these lands was in. the cOlllplainant, rather than in the defeildlmt.