
    BILL, OF EXCEPTIONS — LIBEL—EVIDENCE.
    [Stark County Circuit Court.]
    Jenner, Pomerene and Adams, JJ.
    
      Alliance Review Publishing Company v. Fannie L. Valentine.
    1. Assignments of Error not Considered by Reviewing Court where Bill of Exceptions does not Set out all the Evidence.
    A reviewing court will not consider an assignment of error, that a verdict is excessive or is not sustained by sufficient evidence, where the bill of exceptions does not set out all the evidence. And where, in connection with the cross-examination of a witness, a copy of a newspaper or periodical is introduced in evidence but not attached to, or in any way made a part of, the bill of exceptions, the admission of such testimony, even if it were erroneous, will not be considered by the reviewing court.
    2. Distinction between Express and Implied Malice — Malicious Intent.
    In an action to recover damages for an alleged libel, the court, among other things, charged the jury that “Malice is of two kinds; express and implied. Implied malice means malice in a legal sense, and is a wrongful act, intentionally done, without just cause or excuse. Express malice means an actual feeling oí ill-will, and a desire to injure another; an act done from abad motive, or with a wicked intention. Now express , malice is to be specifically proven. That is, it is to be proved by evidence not contained in the language itself that “implied malice is inferred from the falsehood of the charge, from the falsity of the libel, and need not be expressly proven and that “the law always presumes that, in the publication of an article, which is libelous in itself, it was published with malicious intent.”
    
      Held: Such propositions, so submitted to the jury, were correct and fairly drew the distinction between express and implied malice.
    3. Effect of Testimony not the Proper Subject for the Opinion of a Witness.
    A judgment will not he reversed where testimony, not a proper suoject for the opinion of a witness, has been introduced in evidence, and the error in introducing such testimony is sc slight as not to be prejudicial to the party complaining.
    4. Competency of a Plea in Justification Withdrawn from Answer before Trial.
    In such action, the defendant, in its answer, in addition to a general denial, set up a justification os. the publication of the alleged libelous matter, and shortly prior to the trial, was allowed to withdraw such plea. At the trial, the plaintiff was permitted to read such pier of justification to the jury, against the objection and exception of the defendant.
    
      Held: The withdrawal of such plea did not destroy its competency as evidence of a republication of the libel, and as tending to prove malice.
    5. Competency of Evidence.
    The plaintiff, in such action, may, in chief, offer evidence to prove the falsity of the libelous charge, and may offer evidence to show his social standing.
    
      
       The judgment in this case was affirmed by the Supreme Court. June 1,1897; unreported.
    
   Adams, J.

Error to reverse a judgment of the common pleas court in an action for damages foi the publication of a libel.

The plaintiff, Fannie L. Valentine, filed her petition in the court below on the 30th of September, 1890. Her petition alleges the incorporation of the defendant, -the fact of her marriage to one Eugene F. Valentine, and the death of her husband on the 15th of April, 1889; and then alleges on the 12-th day of June, 1890, the defendant falsely and maliciously published of and concerning the plaintiff, in a certain newspaper called the Alliance Standard Review, the following false, malicious and defamatory matter; — and then the petition sets out a copy of the alleged libelous article.

That article is long, and I will not take the time to read it. But hereupon the defendant, by its amended answer, admitted the formal matters in the petition, of the incorporation of the defendant, the plaintiff’s marriage wi h Eugene F. Valentine, and his death; and also admits the publication of the article, a copy of which is set out in the petition; and then denies each and every averment in said petition, not herein expressly admitted.

There was a second defense on that amended answer, which was a plea in full justification of the libel. That second defense was afterwards withdrawn.

This alleged libel was. published on June 12, 1890, and this amended answer containing this second defense, was filed on February 15, 1892, and to that there was a reply of a general denial.

On the issues made by the' petition, the first defense of this amended answer and the reply, the parties went to trial.

A few days before the trial in the court below, perhaps on the third day before, the defendant was given leave to withdraw the second defense in the answer. The trial resulted in a verdict for the plaintiff.

There are numerous errors assigned, and there is a bill of exceptions here, an examination of which shows that it does not set out all the evidence admitted in the trial below, and in fact that is conceded in argument here. The fact that the bill of exceptions does not set out all the evidence, disposes of two of the assignments of error here; — that is, that the verdict is excessive, and that the verdict is not sustained by sufficient evidence.

In the trial of the case, and on the cross-examination of the witness, Brush, who was perhaps general manager of the defendant, or at least was manager at the time of his cross-examination, the plaintiff introduced in evidence a copy of the Police Gazette; — but as that copy is not attached to, or in any way made a part of the bill of exceptions, we think that the admission of that testimony, even if it was erroneous, , cannot be considered by the court here.

Then another assignment of error is, that the court erred in its charge to the jury on the question of malice, of the difference between implied malice and express malice; and the part to which our attention is particularly called, being excepted to, is the language of the court where it is stated “the law always presumes that in the publication of an article which is libelous in itself, it was published with a malicious intent. I say the law presumes this.” But that charge, or that part of the charge must be taken in connection with the balance of the charge on the question of malice; and on page 154 is the beginning of the charge of the court oh the question of malice, and it reads as follows:

“The defendant is charged with having maliciously published the article complained of; and malice, either express or implied, is the gist of the action. Malice is of two kinds, express and implied. Implied malice means malice in a legal sense, and is a wrongful act, intentionally done, without just cause or excuse. Express .malice means an actual feeling of ill-will, and a desire to injure another; an act done from a bad motive, or with a wicked intention. . Now express malice is to be specifically proven. That is, it is to be proved by evidence not contained in the language itself.
“Plaintiff complains, or claims that the .nature and character of this publication, and the charge contained in it, and that the subsequent republication of the same article, tended to show express malice; or as it is called; malice in fact. The defendant denies this. The defendant denies that in the publication of this article it was guilty of any express malice. ’ It denies that the subsequent republication of the same article or alleged republication of the same article shows, or tends to shoty any malice.
“The circumstances, grounds, motives and objects of the publication and republication are proper to be considered on the question, of whether there was any malice on the part of the defendant. The nature of the publication, the republication of the same article, are matters and circumstances that you are to take into account in arriving at a conclusion as to whether or not there was actual malice in the publication of the article complained of. Implied malice is inferred from the falsehood of the charge, from the falsity of the libel, and need not be expressly proved. It is not necessary, to render a publication malicious, that the party be actuated by any feeling of hatred or ill-will, or that he entertain or pursue any bad purpose. He may be actuated by a good purpose, but, if in pursuing that purpose, he willfully inflicts a wrong on another which is not warranted by law, such publication is malicious. The law always presumes that in the publication of an article which is libelous in itself, it was published with malicions intent. I say the law presumes this.”

Now, taking that charge on the question of malice; taking it as a whole, we are of the opinion that it fairly and correctly states the rule of law and draws the distinction fairly and correctly between the implied malice and the express', malice.

Another ground of error is assigned in the testimony of the witness, H. B. Coe, and perhaps some other witnesses whose testimony was in the same line ;• and the part objected to is: “I will ask you whether or not you were so situated that had there been rumors in Ravenna — a rumor in the city of Ravenna — that Frank Valentine would have recovered if he had been gi en proper care and attention by his wife, you were so situated that if there had been such rumors afloat in that vicinity you would have heard them ?”

It was assigned for error that the witness was allowed to express his opinion that he was in a position where he would have heard those rumors if there had been any such rumors afloat in that vicinity. He further testified that he did not hear any such rumors; and on cross-examination he shows that he was a traveling man, and that a very small part of his time was spent at his home in Ravenna; so that while this perhaps was not a proper subject for the opinion of the witness, yet we think that taking the testimony altogether, that the error was so slight that it could not have resulted in any prejudice to this plaintiff in error, the defendant below.

There is another ground of error which is used with great vigor here; and that is this second defense of the amended answer, which was a plea in justification, and which the defendant, about three days before the trial, was allowed to withdraw. On the trial of the case, the plaintiff was allowed to read that second defense in evidence to the jury, against the objection and exception of the defendant.

That second defense, or rather that entire answer which contains that second defense, had been on file in the court below for something over a year; and leave was given to withdraw on the third day before the trial began; but the second defense, so far as this record shows, was not actually withdrawn.

It is claimed that its admission in evidence was erroneous, and we are cited to a case, Gilmore v. Border, in Howard’s Mississippi Reports, vol. 1, part 2, where a court does hold that where pleas of justification are pleaded and withdrawn, in an action for slander, such oleas are no part of the proceedings, and they are not legal evidence for the jury. The opinion in that case is very short, and while it discusses the question in brief, in the syllabus, which I have read, there is no discussion of the question; and we are not disposed to follow that authority. We think that it is well settled that a secqnd publication of a libel is competent evidence to show the malicious intent of the defendant. And we think, that under the circumstances of this case, the fact that this answer, which was a plea in justification as broad perhaps as the charge itself, was on file in the common pleas court, allowed to remain there for over a year, permission then given to withdraw it, that the withdrawal would not destroy its competency as evidence as a republication of the libel, and as tending to prove malice. The withdrawal would only so much reduce the weight of his answer as evidence tending to show malice.

On the remaining ground of error, which has been very ably argued, is that the court below erred in permitting the plaintiff to show in chief the falsity of the charge, and counsel claims that this was erroneous, and has cited us to several authorities, among others the case of Blakesly v. Hughes, in 50 O. S., page 490; the syllabus in that case is: “The plaintiff’s action was for a libel; the defense was justification. On the trial of the action in the court of common pleas, that court, over the. defendant’s objection, permitted the plaintiff to give in chief to the jury, evidence of his good character. The circuit court, soiely on account of this ruling of the court of common pleas, reversed the judgment, and remanded the cause for a new trial. Held, that the" circuit court did not err.”'

John O. Winship, for Defendant in Error.

Day, Lynch & Day, Fording & Harris, and S’. F. Hanselman, for Plaintiff in Error. ... ..;. _

We think that case does not sustain the contention of counsel on this ques-■'■fi'Gsn. That is, that what the court ruled there was that the general, reputation ■ twas not permissible in evidence even where there was a plea of justification.

Eut in Newell on Igbel and Slander, the text is that under the general issue, ' 'the¿plaintiff will not in ordinary cases be permitted to prove the falsity ©£ the de- : 'famatory matter, either for the purpose of showing malice, or of enhancing his ■ damages. And the citations in support of that are: II Greenleaf on Evi- ■ dence, section 419; II Starkey on Slander, 59; and a case in the 34th Penn- : sylvania State, 114.

Section 4Í9 of Greenleaf on Evidence, where the text is substantially the : sameras 'in Newell, the only citation therein in support of the text, is Starkey on ; Slander. Now we have examined this case in the 34th Pennsylvania State, : and it is a case exactly like the case in 50 Ohio State, to which I have ■¡referred, and does not support the case in Newell. Then there is. a citation of a California case, 69th California, 527; and the citation here in Newell is that where language is actionable,, and does not appear to be privileged, it is presumed to be both false and maliciausy and no other evidence than the publication itself is needed to establish a prima facie case for the plaintiff.”

Then in Townsend on Slander and' Tibet,, in a note on page 648, we find: a reference to the case of Samuel Samuels v. The Evening Mail Association, 75th N. Y., 604, reversing same case, 9th Hun., 288-, it was held that proof of falsity was 'sufficient evidence of malice to sustain a verdict for exemplary damages.

An examination of the 75th N. Y., 604, we find there is no opinion there;, .it simply says the case in 9th Hun., is. reversed on the authority of the dissenting opinion 'in the court below. And to, the same effect is a case in the Third City and Hall Reporter, page 97. That is a lower court in New York, but it is not stated just what court it is. “The plaintiff may give evidence of the falsity of the libel though the defendant has not justified.”

We have considered this question, as the question has seemed to us one of considerable doubt. There may be a difference between a general denial under our code, and a plea of the general issue, which is a plea of not guilty under the common ’law.

Here in this petition, this libel is alleged to be false and malicious, and the •answer denies that. It denies that it is malicious, and it denies that it is false. So that altogether we consider the question is one of some doubt, yet we are inclined to follow — we have followed the authority that we found in those two New York cases to which I have referred,, rather than the authority of the text books.

There is one assignment of error, and that is, that the plaintiff was allowed to prove her social standing. We think that the case in the 26th Ohio State, Fowler et al. v. Chichester, on page 9 — the opinion is found on page 13, where the opinion says: “It is proper in an action for slander for the plaintiff to show not only her social relations, but also the social relations of the defendant, for the purpose of enabling the jury to determine the nature and extent of the injury. The object of the action of slander is to recover damages for the injury sustained, in ■consequence of the uttering and publishing of the false and malicious charge. Any evidence, therefore, which tends to show the nature and extent of the injury, is admissible.”

We think that the terms “social relations” and “social standing” used in this case, are substantially the same, and that there was no error in that particular. The judgment of the court below will be affirmed.  