crime is charged upon a man whose character and reputation for honor and integrity have been unquestioned for years in the community in which he has lived, that character and that reputation stand sponsors for his innocence, and raise a still stronger presumption, which accompanies him in public and in private, in court and in council, and in every situation in life, and which is acted upon and recognized daily by all men, a presumption that such a man would not be guilty of such a crime. U. S. v. Shapleigh, 12 U. S. App. 26, 42, 4 C. C. A. 237, 246, and 54 Fed. 126, 135. The law recognizes the value of such a reputation, and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words, or by a libelous publication, a liability to make full compensation for the damage to the reputation, for the shame and obloquy, and for the injury to the feelings of its owner, which are caused by the publication of the slander or libel. It goes further. If the words are spoken, or the publication is made, with the intent to injure the victim, or with a criminal indifference to civil obligations, it imposes such damages as a jury, in view of all the circumstances of the particular case, adjudge that the wrongdoer ought to pay, as an example to the public, to deter others from committing like offenses, and as a punishment for the infliction of the injury.

These general propositions are unquestioned. But the books are full of learning and confusion as to how far malice in the libeler is an essential prerequisite to the enforcement of these liabilities. Much of the discussion arises from, and a large part of the confusion is caused by, the different meanings which this word has grown to have. In the ordinary acceptation of the term, it signifies ill will, evil intent, or hatred; while its legal signification is defined to be "a wrongful act, done intentionally, without legal justification or excuse." Darry v. People, 10 N. Y. 120, 139; Buckley v.. Knapp, 48 Mo. 152, 161; Clements v. Maloney, 55 Mo. 352, 359. When we come to read the text-books and the opinions of the courts on this subject, we find the writers and the judges using the word alternately with one and the other meaning, so that close attention. to the sense in which it is used in each instance is requisite to a clear understanding of the statements of the writers and of the decisions of the courts. In many decisions it is laid down as a settled rule that malice is essential to a recovery in an action of libel, but that it is conclusively implied from the unprivileged publication of a false charge which is libelous in itself. Buckley v. Knapp, 48 Mo. 161; Callahan v. Ingram, 122 Mo. 355, 370, 26 S. W. 1020. This, indeed, is a settled rule of law, and it is obviously a correct statement where "malice" means, as it does in this declaration, that kind of malice which is always inferred from "a wrongful act, done intentionally, without justification or excuse"; for it is a truism to say that malice is the conclusive inference from such an act, and that, since the publication of a false charge that is libelous per se is without justification or excuse, malice is implied therefrom. This declaration of the law has exactly the same practical effect as the more simple and more philosophic rule that malice, in the common acceptation of the term,-that is to say, ill will, evil intent, bad

motive, is not required to be either pleaded or proved to entitle the injured party to recover the actual damages he has sustained from the unprivileged publication of a false and libelous charge. The person libeled is as clearly entitled to full compensation for the loss he has sustained from a wrong inflicted with a laudable motive, or through mistake or inadvertence, as from one perpetrated from a bad motive, or with a diabolical intent. Ullrich v. Press Co. (Sup.) 50 N. Y. Supp. 790, 798; Hamilton v. Eno, 81 N. Y. 126; King v. Root, 4 Wend. 127. It is a corollary to these rules that it is no justification for the publication of such a libel that another had spoken or written the false charge, and that the libeler simply repeated his statement, and that he gave the name of his informant. It is no defense to an action of trespass that another trespassed, and informed the defendant how to do it without expense or trouble; and it is no excuse or justification for an injury to a fair reputation that another has commenced to besmirch it, and has furnished the pigments to carry on the nefarious undertaking. Sans v. Joerris, 14 Wis. 666; Newman v. Foster, 8 Wend. 602; Odgers, Libel & Sland. p. 124.

But may exemplary or punitive damages be recovered for a libelous publication, without proof of ill will, hatred, or an intent on the part of the libeler to injure his victim? Punitive damages are given as an example to the public, to deter others from committing a like offense, and as a punishment to the wrongdoer. They are never allowable where the defendant, after due investigation, in good faith, with reasonable cause to believe the charge to be true, has published it from a proper motive, in the honest belief that it is true. Are there, however, no circumstances under which the jury may award exemplary damages, in the absence of proof of actual evil intent or bad motive on the part of the defendant? May the libeler shut his eyes, and blindly publish heinous charges against men and women of spotless character and unsullied reputation, and still escape liability for everything except the actual damages which they can prove, be cause he had no intention to injure them, no care about them, but simply sought to make money from the sale of the racy story? If he may not, where is the dividing line, and who shall determine in each case, the court or the jury, whether or not exemplary damages shall be allowed? It is not every degree of negligence, it is not a mere mistake or inadvertence occurring in the course of a reasonable investigation, that will lay the foundation for exemplary damages for the publication of a libel; and yet every man is bound to use his own property and pursue his own avocation in such a way that he may not unlawfully injure the property or violate the rights of his neighbors. Not only this, but when his property or his avocation borders upon or impinges upon the property or rights of his fellow men, he is bound to exercise ordinary care to ascertain the extent of that property and of those rights, and to abstain from unnecessarily injuring them.

In Durant Min. Co. v. Percy Consol. Min. Co., 93 Fed. 166, an action of willful trespass, this court held that the plaintiff might

235 C. C. A. 252.

recover more than his actual loss if the trespass was willful and intentional, and that the jury might "lawfully infer that a trespasser had knowledge of the right and title of the owner of the property upon which he entered, and that he intended to violate that right, and to appropriate the property to his own use, from his reckless disregard of the owner's right and title, or from his failure to exercise ordinary care to discover and protect them." It is difficult to perceive why a jury might not likewise infer an intent to violate the rights of a plaintiff, in a libel suit, from a stolid indifference to, or reckless disregard of, them.

In Day v. Woodworth, 13 How. 363, 371, the supreme court declared that exemplary damages might be allowed by the jury in "actions of trespass, where the injury had been wanton or malicious, or gross and outrageous."

In Railroad Co. v. Quigley, 21 How. 202, 214, an action of libel, that court held that:

"Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations."

In Railway Co. v. Arms, 91 U. S. 489, 493, an action of negligence, Mr. Justice Davis, in delivering the opinion of the court, said:

"Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go further, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case, the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages."

In Bennett v. Salisbury, 45 U. S. App. 636, 639, 24 C. C. A. 329, 331, and 78 Fed. 769, 771, the circuit court of appeals of the Second circuit held that exemplary damages might be recovered in an action. of libel, although the defendant had no ill will or intent to injure the plaintiff, if he was guilty of "such wanton disregard of, or such reckless indifference to, the rights of others as was equivalent to the intentional violation of such rights."

Through all these and many other authorities the thought runs that a reckless disregard of the rights and feelings of others may be equivalent to an intentional violation of them, and that, where such recklessness exists, punitive damages may be allowed, in the discretion of the jury. A moment's consideration will show, however, that wherever the violation of the rights of one who is slandered or libeled results from a reckless disregard of those rights by the libeler, that disregard is the equivalent of an intentional violation of them. Every man is presumed to intend the natural and probable effects of his acts and omissions. The natural and probable effect of the reckless disregard by the publisher of a newspaper of the rights of his fellow men to their good names and fair reputations is the violation of those

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rights, and hence the reckless disregard of them becomes equivalent to an intentional violation of them. Moreover, every reason for the allowance of exemplary damages applies with as much cogency and force to a libel published with a reckless disregard of the rights of the libeled as to one published with an evil intent or a bad motive. Such damages are allowed as an example to the public, and as a punishment to the wrongdoer. The main purpose of their allow ance is to protect the characters and reputations of those who have not been attacked, and to warn all men not to destroy or injure the names that are still good and the reputations that are yet fair. The interests of these citizens and of the public demand the protec tion of their reputations against assaults that would destroy them with a reckless disregard of the rights of their owners as forcibly as they do that they shall be protected against those inspired by hatred or ill will. The effect of libels published with recklessness is as deleterious as that of libels published with ill will. In truth, the demand for the protection against libelous publications made with stolid indifference to, and reckless disregard of, the rights of those injured, is far more urgent than the demand for protection against those published with hatred, because the former are usually inspired by avarice, and are as much more numerous and as much more dangerous to individuals and the public as avarice is more prevalent than spite.

Turn it as you will, the reason of the rule and the great weight of authority upon the subject lead alike to this conclusion: Exemplary damages may be allowed by the jury, in actions of libel, when, upon a consideration of all the facts and circumstances of the case, they find that the publication has been made with a reckless disregard of the rights and feelings of the person libeled, as well as where they find that it has been inspired by hatred or ill will to wards, or an intent to injure, him. Bennett v. Salisbury, 45 U. §. App. 636, 639, 24 C. C. A. 329, 331, and 78 Fed. 769, 771; Ullrich v. Press Co. (Sup.) 50 N. Y. Supp. 788, 792; Samuels v. Association, 75 N. Y. 604; Bergmann v. Jones, 94 N. Y. 51, 62; Holmes v. Jones, 121 N. Y. 461, 467, 24 N. E. 701; Warner v. Publishing Co., 132 N. Y. 181, 184, 31 N. E. 393; Holmes v. Jones, 147 N. Y. 59, 61, 41 N. E. 409; Smith v. Mathews, 152 N. Y. 152, 158, 46 N. E. 164; Young v. Fox (Sup.) 49 N. Y. Supp. 634; Shanks v. Stumpf (Sup.) 51 N. Y. Supp. 154; Callahan v. Ingram, 122 Mo. 355, 371, 372, 26 S. W. 1020; Buckley v. Knapp, 48 Mo. 161; Clements v. Maloney, 55 Mo. 352, 359.

It is ordinarily a question for the jury to determine, in view of the particular circumstances of each case, whether or not punitive damages should be allowed, and the amount of the allowance is exclusively within their province. Day v. Woodworth, 13 How. 370; Scott v. Donald, 165 U. S. 58, 89, 17 Sup. Ct. 265; Holmes v. Jones, 147 N. Y. 59, 67, 41 N. E. 409. The constitution of the state of Missouri, where these actions were tried (article 2, § 14), provides that:

"In all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court. shall determine the law and the fact."

The questions which have now been discussed were presented in various forms in the trial of the cases before us, and have been properly saved for our consideration. It seemed conducive to a convenient and expeditious disposition of the cases to consider them before stating the details of the exceptions which raise them. We turn to a consideration of these exceptions. The main point of attack is the charge of the court. The plaintiffs in error did not plead or prove the truth of the charges for the publication of which these suits were brought, but they produced evidence to the effect that Sheriff Reeder originated the charges, and stated them to their reporters before their publication, and they prayed in their answers, and in four requests which they presented at the close of the trial, that they might prevail on account of this pleading and proof. The court carefully read to the jury the three libels, stated clearly the contents of the answers of the plaintiffs in error, and then addressed itself in their order to the questions of justification, mitigation of damages, compensatory damages, exemplary damages, and some special phases of the cases against the Times Company and the World Company. The trial judge properly charged the jury that the fact that the libelous matters published were told to the publishers by another was no justification for their publication, and that proposition of law is not challenged in this court, although, as we have said, the judge was asked to hold the counter proposition at the trial, and exceptions were taken because he refused. The complaint now is that there was error in the charge of the court on the question of damages, and we have called attention to the fact that this question of justification was presented and urged upon the court below because many of the statements of the judge that are now challenged as tending to induce error in the assessment of damages were not addressed to that subject at all, but to the question of justification alone. For example, he said:

"The repetition of slander uttered by publication in the newspaper makes the publisher of that scandal or libel as much responsible in law for the act of publication as if the newspaper were the originator of the slander; the information they received, as you will be advised by the court later on, going to the question only of damages."

This was a correct statement of the law. The court did not say that the publisher would be liable for as much damages as the originator, but that he would be as much liable, and he was speaking, not of the amount of damages, but upon the question of a justification of the publication.

It is assigned as error that the court instructed the jury that, if the defendant in error recovered, he would be entitled to compensatory damages, and then said that by "compensatory damages is meant simply such sum of money, such round sum in measurement, as in the judgment of the jury will compensate him for injury done to his feelings and his character and reputation." He then told them that the action was not founded on special damages resulting from loss of business or trade, but on general damages for defamation of character, injustice, and indignity. This