
    Case 44—LIBEL—
    September 28.
    Courier-Journal Company v. Sallee.
    APPEAL FROAT UNCOIL CIRCUIT COURT.
    1. Libet,—Continuance—Public Prejudice.—In art action for-damages for libel against the .publishers of a newspaper it is not ground for continuance that there exists in the county where the action is pending a prejudice against the defendant growing out of its failure to support the nominees of its political party for public office.
    2. Same—Evidence.—It was not error to permit the plaintiff to testify that the defendant had published, prior to the publication of the defamatory matter complained of, an article describing an accident to him in being thrown from a mule, such article tending to put the defendant on notice of the true cause of plaintiff’s confinement, the alleged defamatory matter giving a cause averred to be untrue.
    3. Libel — Punitive Damages — Instructions.—An instruction in such an action authorizing the jury to find punitive damages if they believe from the evidence that the defendant in publishing matter which was libelous, ver se, did so without a belief in its truth based on reasonable grounds, or that the defendant was recklessly indifferent to the natural consequences of its -publication is proper.
    4. Same — Maxioe—Instructions.—It is not necessary to use the word malice in an instruction where the instruction contains in apt language the essential legal definition of the term.
    F. HAGAN eor appellant.
    1. The facts of the case show that there was no express malice, and there were no facts from which express malice or gross malice could be inferred and, therefore, it was error to give the instructions for punitive damages.
    
      2. The court erred in telling the jury they were bound to give such damages as would compensate the plaintiff, without also telling them the law of damages as to malice and the effect of the want of malice, and how implied malice was mitigated by the facts proven. Ratcliffe v. Courier-Journal Co., 99 Ky., 416 (18 Ky. Law Rep., 291); Lehrer v. Elmore, 100 Ky., 56 (18 Ky. Law Rep., 551); Odgers, Slander and Libel, 317; Townsend SI. and Lib., 538; Newell, SI. and Lib., 901; Casey v. Hulgan, 21 N. E. R., 322; 59 Wis., 95; 17 Nev., 875; Short on Libel, 582; Sugow v. Fulton, 34 Md., 128; s. c. 6 Am. R., 321; Childers v. St. Jose Mercury, 105 Cal., 284; s. c., 45 Am. S. R., 40; McAllister v. Detroit Free Press, 76 Mich., 338; 15 Am. St. R., 318; Callowray v. Middleton, &c., 2 A. K. M., 372; Hart v. Reed, 1 B. M., 172; Williams v. Greenwade, 3 Dana, 432; 38 la., 355; Wrignt, 124; 20 N. H„ 561; 60 Ind., 424; 2 Cranch C. C., 17; 19 Mich., 35; Townsend,. 375; 67 Cal., 109; Townsend, 534.
    3. The damages are excessive.
    4. Appellant ought not to have been forced into trial.
    
      .31. J. BRECKINRIDGE and W. G. WELCH for appellee.
    ,1. No errors will be considered except those set out in the motion . -for a new trial. Alexander v. Humber, 86 Ky., 565; Com., v.. Williams, 14 Bush, 297.
    2. It was no abuse of discretion to refuse the continuance., Ky. St., p. 475; Enc. of PI. & Pr., vol. 4, p. 832, sec. 5.
    3. The court did not err to appellant’s prejudice in admitting or rejecting testimony.
    4. The instructions were not erroneous. Tillottson v. Cheatem, 3 J. R,, 56; Odgers SI. & Lib., 267, 278, 297; Lehrer v. Elmore, 37 S.W. R., 293; s. c., 100 Ky., 56.
    
      5. The verdict was not excessive. Worford v. Isbel, 1 Bibb, 247; Letton, &c., v. Young, &c., 2 Met., '558; L. & N. R. R. Co. v. Fox, 11 Bush, 495; L. & N. R. R. Co. v. Brooks’ Admx., 83 Ky., 129.
   JUDGE BURNAM

delivered the opinion of the court.

On May 26, 1896, the defendant was a corporation, and published in the city of Louisville a newspaper called the Courier-Journal, and the plaintiff was a farmer, residing in Boyle county. On that day the following article appeared in the daily edition of that paper: “Harrodsburg, Ky., May 26. (Special.) It has just been learned from a man of unquestioned integrity, who lives in the neighborhood, that Tom Sallee, of near Parksville, in'Boyle county, is expected to die of terrible treatment received a short while ago at the hands of two brothers, both of whom had for some time past suspected their wives of unfaithfulness. They concocted a scheme, and each went to his respective home, and each discovered by stealth another man in his room. One of the men was recognized, but' the identity of the other was not learned. The two brothers retreated, and, gathering several friends to their aid, laid in wait the next night at a house where it was thought that Sallee would be caught visiting for a similar purpose. The party cauglit their man, and, despite his appeals, took him to-the woods, and horribly mutilated him. The operation was performed in such a barbarous and unprofessional manner that the victim of their vengeance is about to die. Some sensational arrests will likely be made in that vicinity very soon. The entire neighborhood has endeavored to keep the matter quiet, but the serious condition of Sallee has necessitated the best of medical skill, and the affair could not be kept quiet longer. Salee is a grandson of a prominent Mercer farmer,” — plaintiff claiming' that the publication was libelous, and he instituted this suit in the Boyle Circuit Court to recover damages on account thereof. The answer of appellant company denies the malice charged in the petition, and avers that it was a, general rumor in Mercer and Boyle couhties, in the-neighborhood in which plaintiff resided, that the matters and things set out in the publication occurred and happened; that the report came from credible sources, and wras believed by a large number of respectable people to be true; that its correspondent at the town of Harrods-burg, hearing the report from reliable sources, at once investigated it, and, after a careful and faithful examination and full investigation of the report, and becoming ■satisfied that same was true, telegraphed it to appellant; and that it, relying upon the care, prudence, and honesty of its correspondent, and believing same was true, published it as an item of news, without malice or ill will towards the plaintiff, and without intention to damage him or do him any injury whatever. Plaintiff, in reply, put in issue all the affirmative allegations of the answer. The case being called for trial at the October, 1896, term of the Boyle Circuit Court, defendant filed a motion for a change of venue, which was supported by affidavits in which it was alleged that there existed against it in Boyle county hostility and bias in the public mind because it was opposing the election of candidates nominated Jby the party with which it had formerly been identified. The motion for a change o'f venue was sustained, and the case transferred to the Lincoln Circuit Court, where it was tried on November 10, 1896, against the protest of the plaintiff. The trial resulted in a verdict and judgment in favor of plaintiff for $2,500, and we are asked upon this appeal to reverse that judgment for a number of alleged errors occurring upon the trial, the more important of which are: First, that the court abused its discretion in overruling defendant’s motion for a continuance, based upon the grounds set forth in the affidavits of divers witnesses; second, that the court erred in excluding important testimony for defendant, and in permitting plaintiff and other witnesses to testify to having read in the paper published by defendant, in an issue of that paper published previously to the libelous publication complained of by plaintiff, an account of an accident sustained by the plaintiff in being thrown from a mule; and, third, that the court erred in giving to the jury, on its own motion, instruction marked “A,” and refusing instruction “B,” asked for by defendant.

We will consider these alleged errors seriatim. The ground oñ which the motion for a continuance was based was identical with that for which the change of venue was granted from the Boyle to the Lincoln Circuit Court, i. e. that some of the citizens of Lincoln county entertained hostile feelings against defendant, growing out of its attitude towards the candidates of the Democratic party in the presidential campaign which had just closed. The propriety of granting a continuance on this ground is necessarily relegated to the discretion of the trial judge, who, from closer contact with the people, is better able to judge of the intensity and universality of the prejudice comT plained of. Ordinarily, public excitement or prejudice is not deemed sufficient ground for a continuance where the statute authorizes a party to ascertain the state of mind of a juror by examining him preliminary to challenge. See 4 Enc. PI. & Prac. p. 832, sec. 5, and cases there cited. There is no claim that there was any prejudice against defendant growing out of the particular publication in question, or that plaintiff exercised any undue influence in the county. An influential newspaper can never hope to be in accord on public questions with all the citizens of any community. There never was, and never will be, a time when a very large proportion of those who differ from its views on political questions will not, with more or less vehemence, disapprove of its course in such matters; and to hold that such disapproval renders it impossible for the proprietors of such a journal to obtain a fair trial in a court of justice in a civil action, and a good ground for a continuance, would mean indefinite postponement, and •would practically render trial by jury in such cases impossible.

We can not think that the second objection — that the court erred in rejecting evidence offered by the defendant, and in admitting evidence offered by the plaintiff — is urged seriously. The defendant was given the utmost latitude in the introductiQn of its evidence as, for example, the defendant was permitted to prove by its correspondent who forwarded the article all the sources of his information with regard thereto, how and from whom he heard the report, and what the parties said to him, although not one of his informants professed to have any personal information as to its'truth, or, indeed, to live in the neighborhood of plaintiff. The competency of such evidence may well be doubted in an action against a publisher to rebut malice or mitigate damages, where the article is libelous per se, and was published without any inquiry or knowledge by the defendant on the subject,, it certainly had no bearing Upon its good faith.. It. received the libelous article from its correspondent, who was not its agent in the sense that ■ his act was its act, and his. information its information ; and it could receive no advantage from the fact that he was imposed on or innocently mistaken. See Moray v. Association, 9 L. R. A. 624 [25 N. E. 160]. And it- was certainly competent for the plaintiff to prove that the defendant had received from the same correspondent,, and published in its journal, only a few days before the publication of the article in question, a correct account of" how the injury to the plaintiff which occasioned his confinement had occurred, as bearing, upon the question of- defendant’s good faith in its contention that it was innocent of any intentional wrong. If, as a matter-of fact, it had received correct information as to how the-injury to plaintiff occurred, it was at least sufficient to put defendant on its guard before publishing as facts stories picked up on the street by its correspondent, to the detriment of plaintiff. We perceive no error in the admission or exclusion of testimony.

The chief contention of defendant is that the court erred in failing to instruct the jury that plaintiff was not entitled, under the facts of the case, to récover punitive damages; and it especially complains that that part of' the instruction given by the court authorizing, punitive • damages was not qualified by the use of the word.“malice.”’ There can be no doubt that in all actions for libel the gist of the action is malice, but it must be remembered that the law always presumes that in the publication of an' article which is libelous on its face it was published with malicious intent, and this presumption remains throughout the entire case until it is rebutted by proof of the contrary motive, or that the publication w*as justifiable; and nothing short of the truth of the matter published will excuse its publication. See Riley v. Lee, 88 Ky. 614 [11 S. W. 713]. We are aware that the adjudications on this question have not been uniform in all the States, it being held in some of them that only compensatory damages can be recovered. But in this State, in all actions for tort, punitive damages are allowed where the injury is the result of a wanton or grossly negligent act; and intent or purpose to injure is not a necessary ingredient. This is especially true where the words published are actionable per se. The newspaper is a public necessity, and the conditions under which it is required to be conducted should not be unreasonable; but when a publication is made in a newspaper, charging a citizen with disgraceful or criminal practices, it must be at the peril of the publisher. To relieve a newspaper of all liability for a false publication unless actual malice is shown would result in establishing one rule for newspaper publications and another for all other characters of publications, and would result, in effect, in their exoneration from any but compensatory damages, while in all other cases of tort punitive damages may be imposed. Mr. Townshend, in his work on Slander (section 87), says: “As respects the term ‘malice,’ it is sometimes employed to signify the absence of legal excuse; sometimes as meaning a bad or wicked motive or intent; sometimes as meaning scienter, or knowingly; sometimes as meaning intentionally, or voluntarily; and often without any definite or ascertainable meaning whatever.” And then, referring to the distinction attempted to be made between malice in law and malice in fact, he says: “The supposed distinction is unreal and unsound; for, first, there is no distinction between what is inferred and what is proved; what is or is supposed to be rightfully inferred is proved.”' Again, he says: “One meaning is which intent or intention is employed is will. When so employed, it corresponds to what we have described as voluntary; and if, instead of saying intent is necessary to constitute a wrong, we say will is necessary to constitute a wrong, and then keep .in view the distinction between will (voluntary) and intent, we at once remove very much of the difficulty which has been supposed to be inherent in the law relating to slander and libel. * * * * The intent — meaning the intent to effect certain consequences — with which an act is done is material on the question of the amount of damages. The absence of a bad intent will mitigate the damages; the presence of a bad intent will aggravate them. The intent of the actor is sometimes material as a link in the chain of evidence to determine whether or not some certain act was or was not done under circumstances constituting a legal excuse; as, when the legal excuse is dependent upon the question, what was the belief of the actor? With these exceptions, we conceive that intent is never material, and that intent is never an essential element of wrong. No amount of good intention will excuse an act otherwise wrongful, asxl no amount of bad intent will make wrongful that which is otherwise a permitted act. If intent is not an essential element of wrong, neither, in the sense-. of bad intent, is malice. If the term ‘malice’ is to be retained in use as a technical term, it will be only in the sense of want of legal excuse.” The part of the instruction which authorized the jury to give punitive damages required the jury to believe from the evidence that the defendant, in publishing the words, did so without belief based on reasonable grounds, or that the defendant was recklessly indifferent to the natural consequences of such publication. The requirements of the instruction, before the jury were authorized to give punitive damages, were the very essence of malice as defined by the foregoing extracts from Mr. Townshend. The use of the word “malice” in the instruction would have been surplusage; for, if it had been used, and the court had been called upon to define its meaning, it could not have done so in more appropriate words than those used in the instruction. In our opinion, this objection is not well taken. It is true that there is no evidence in the record of any ill feeling on the part of the defendant towards the plaintiff, but this is not necessary in order to support an instruction for punitive damages. If, as a matter of fact, the words published were false, and tended to the injury of plaintiff, and were published recklessly, even without special ill will, defendant is equally guilty, and punitive damages may be recovered. We therefore conclude that the court did not err in refusing the instruction offered by the defendant. It appears to us that the record is free from substantial errors to defendant’s prejudice, wherefore the judgment is affirmed.  