NOTES OF IMPORTANT DECISIONS.

FORM

CARRIERS OF PASSENGers-DefecTIVE PLATCONTRIBUTORY NEGLIGENCE.-In Missouri, etc. Ry. Co. v. Turley, 85 Fed. Rep. 369, decided by the United States Circuit Court of Appeals. Eighth Circuit, it appeared that at an unimportant way station, where defendant had no depot, and sold no tickets, it maintained a platform for the sole purpose of ingress and egress to and from the cars. It was about 8 feet wide and 80 yards in length. The track was on the east side, where the platform was about 4 feet high, and not protected by railing, and no lights were maintained. Plaintiff, a stranger in the neighborhood, and unfamiliar with the platform, came to the station on a dark night, to take passage on a train. She went upon the platform from the west side, and, supposing it was the same height on the east side, and intending to sit down upon the edge of it, she stepped off in the darkness, and was injured. It was held that she was guilty of contributory negligence. The court said in part: "Considering the entire statement, it is made manifest that the plaintiff was not induced to take the step she did into darkness, following the example of her sister, as she evidently sought to have the jury believe, because in the same connection, she described the manner in which her sister reached a sitting posture on the edge of the platform, 'My sister sat down on the edge of the platform, and shoved her feet off.' Why should her sister shove her feet off of the platform after sitting down, if it was level with the ground? The very method adopted by her sister was umistak able admonition to a sane person-First, that the locality of the ground was not level with the platform; and second, that by shoving her feet off they must have descended below. This should, in addition to the darkness of the night, and the unfamiliarity with the situation, have excited especial attention and precaution. But in a misting rain, and very dark, with no other precaution than a look of the eye, and without imitating the action of her sister, she stepped off into air. This was so reckless as to admit of no two opinions among reasonable men as to its negligent character. The platform, manifest to any person, was built for the sole purpose of ingress to and egress from the Its edge was not designed for a place for passengers to go in the nighttime and sit upon. The plaintiff was not invited by anything naturally or incidentally connected with the use of the platform to so undertake to sit down on its edge. The accident was in no degree probably incident to the taking of passage on defendant's train. Such use of the edge of the platform, on a very dark night, was so disconnected and remote from the purpose of its construction as to preclude any possible admissible relation between the imputed neglect of the defendant to barricade the sides of or to light the platform and an accident resulting as this did. "No parallel to this action is found in any recognized authorities. The case of Railway Co. v.

cars.

Neiswanger (Kan. Sup.), 21 Pac. Rep. 582, principally relied upon by the court below, is not entirely this case, in that the plaintiff there did not purposely undertake to sit down on the edge of the platform, knowing that it was not protected, but undertook, under imperative necessity, to pass from the platform to seek permissible concealment, under circumstances that did not admit of deliberate movement. The exoneration from contributory negligence in that case was extreme, and ought not to be extended, lest its application should lead to a practical establishment of the doctrine that a railroad company is to be treated as an absolute insurer of the safety of passengers waiting about its platform, however eccentric and thoughtless in their strolling move. ments. We prefer the better sustained rule recog nized in Forsyth v. Railroad Co., 103 Mass. 570: Reed v. Railroad Co., 84 Va. 231, 4 S. E. Rep. 587; Bennett v. Railway Co., 57 Conn. 422, 18 Atl. Rep. 668; Railway Co. v. Hodges (Tex. Civ. App.), 24 S. W. Rep. 563; Chewning v. Railway Co. (Ala.), 14 South. Rep. 204. These cases support the rule that, although a railway company may be guilty of some negligence in not providing sufficient lights or railings about its platform, yet when these deficiencies are known, or are obvious to the passenger, and notwithstanding he sees fit voluntarily, without invitation from the company, and for his mere convenience, to undertake to pass over the edge of the platform, without knowledge of its elevation, the law will not excuse his negligence in taking no other precaution than a casual look when the night is so dark as to deceive the eye in appearances. The passenger ought not to cast the consequences resulting immediately from his own reckless impulse upon the railway company for not fencing or patrolling its platform, or flooding the ground around it with artificial lights.”

BILLS AND NOTES-CONFLICT OF LAWS-Law OF PLACE - INDORSER.-The Supreme Judicial Court of Massachusetts, in Wylie v. Cotter, decides that the rights and liabilities of the parties on a note made and payable in another State are to be determined by the laws of that State, that by the laws of New York, one who puts his name on the back of a note, before delivery, is a mere indorser, and not a joint maker or guarantor, and that the question as to what is the law of another State on a given point, where it is determined from conflicting decisions, is one of fact, to be proved; and the finding of the trial court thereon will not be revised on appeal if there is evidence to support it. Knowlton, J., says: "The note in suit was payable in New York, and was made and delivered there. The rights and liabilities of the parties are therefore to be determined by the laws of New York. Lawrence v. Bassett, 5 Allen. 140; Woodruff v. Hill, 116 Mass. 310; Jewell v. Wright,

30 N. Y. 259.

"By the law of New York, one who puts his name on the back of a note before delivery, as the defendant in this case did, is a mere indorser, and

not a joint maker or guarantor. Like that of any other indorser, his liability does not become absolute until after a proper demand and notice. Hall v. Newcomb, 7 Hill, 416; Meyer v. Hibsher, 47 N. Y. 265; Phelps v. Vischer, 50 N. Y. 69.

"In the present case a demand was made and notice was given on or about July 31, 1893, more than a year and a half after the date of the note, which by its terms was payable on demand. The question is whether this was within a reasonable time, so that the indorser was charged thereby. To show the law of New York bearing upon this question, certain statutes, together with 35 decis. ions of courts in that State, were put in evidence. The law of another State is a fact to be proved, like any other fact, by evidence. Where the evidence is a single statute or a decision of a court, the language of which is not in dispute, the interpretation of it presents a question of law for the court; but where the law is to be determined by considering numerous decisions, which may be more or less conflicting, or which bear upon the subject only collaterally, or by way of analogy, and where inferences must be drawn from them, the question to be determined is one of fact, and not of law. Hackett v. Potter, 135 Mass. 349; Bank v. Wood, 142 Mass. 563, 8 N. E. Rep. 753; Ufford v. Spaulding, 156 Mass. 65, 30 N. E. Rep. 360; Bride v. Clark, 161 Mass. 130, 36 N. E. Rep. 745. In the present case it is not contended on either side that any statute or decision introduced in evidence relates to a contract identical with that before us, but the counsel for the plaintiff argues from the cases in New York on one side and the other that the principles established, when applied to this note, entitled him to a verdict; while the counsel for the defendant argues to the contrary. The judge of the superior court, in considering the evidence, was called upon to determine, as well as he could, what is the present state of judicial opinion in the highest court of New York in reference to the question before him, as manifested by the published decisions of that court. The matters involved in reaching this conclusion presented a question of fact. On this bill of exceptions we cannot revise his finding upon this part of the case, unless it appears that there was no evidence to warrant it; or in other words, unless the statutes and decisions conclusively show, in spite of any possible inference of fact or doubts in the interpretation of them, that his finding is wrong.

"The plaintiff relies principally upon Merritt v. Todd, 23 N. Y. 28, the headnote of which is as follows: A promissory note, payable on demand, with interest, is a continuing security, and the indorser remains liable until actual payment; and the holder is not chargeable with neglect for omitting to make such demand within any particular time.' So far as appears, this case has never been overruled, but it has been, at different times, reaffirmed. Pardee v. Fish, 60 N. Y. 265; Parker v. Stroud, 98 N. Y. 379. On the other hand, the courts have been disinclined to extend it. In

Herrick v. Woolverton, 41 N. Y. 581, Foster, J., speaking for the court, says: 'I think the case of Merritt v. Todd has extended the principle of continuing security in such a case to the very verge.' See, also, Crim v. Starkweather, 88 N. Y. 339. In the opinion in Merritt v. Todd much stress was laid upon the fact that the note, although payable on demand, expressly provided for payment of interest. The court said: 'If the security be not on interest, it may be a fair exposition of the contract to hold that no time of credit is contemplated by the indorser, and that the demand should be made as quickly as the law will require upon a check or sight draft.' This distinction between demand notes bearing interest and those not bearing interest was made in Wethey v. Andrews, 3 Hill, 582, and recognized in Salmon v. Grosvenor, 66 Barb. 160, and in later cases. The note in suit does not bear interest. The plaintiff seeks to bring the case within the doctrine of Merritt v. Todd by reason of the letter which was sent by the plaintiff's agent with the note; but the defendant was not a party to the letter, and did not authorize it. She is not bound by its language. By writing her name on the back of the note, and leaving it, under the circumstances disclosed, she bound herself in favor of one receiving it in good faith and for value in the form in which it appears. She did not authorize anybody to bind her by a writing other than the note. So far as the arrangement made in regard to the consideration of the note bears upon the construction of it, her liability may be affected. The testimony was that the consideration was made up of $2,000 already due the plaintiff from the firm of Richard H. Dana & Co. and $3,000 to be advanced to that firm. The last of these advances was made on or about June 1, 1892. In the view most favorable to the plaintiff, the letter can only be considered as a part of the evidence in regard to the consideration of the note. Under the law of New York, is a note written in this form, given for such a consideration, to be deemed a continuing security, on which the indorser is liable for an indefinitely long period without a demand and notice? It is one question whether it is a continuing security until the advancements have been made to the amount agreed upon, and it is a different question whether it is to be a continuing security after that. That it is written without interest is an important fact, in the light of the authorities in New York. If the consideration had been money lent to the amount of $5,000 when the note was given, it seems pretty clear, under the authorities in New York, that the note, in its present form, would not be a continuing security, on which an indorser would remain liable for six years without a demand or notice. The question before the superior court upon this branch of the case was by no means free from difficulty. We think it cannot be said, as matter of law, that the finding of the judge upon the evidence was erroneous."

ABSOLUTE PRIVILEGE AS A LEGAL

EXCUSE IN LIBEL SUITS.

6

Libel Defined.-It may be premised that defamatory words published by means of writing, printing, signs or pictures, prior to the beginning of an action,1 to a third person,2 and understood by at least some one third person by whom they have been read, and tending to render one liable to punishment,* to expose him to public hatred, contempt or ridicule, to injure him socially, or in his office, trade, profession or business, and thus expose him to pecuniary injury, are libelous per se, are prima facie a wrong and prima facie actionable, without proof of special damage, when published without legal excuse. The law implies both malice and damage from their publication, and that the defendant intended the injury his words were calculated to effect.9

7

Absolute Privilege as a Defense in England. -Text-books state in a general way that legal excuses are of two kinds: those furnishing an absolute defense, depending in no respect for protection on the bona fides of the defendant, and those furnishing a conditional or qualified defense, depending upon whether the party acted in good faith, without malice. English writers and former decisions conceded absolute privilege to proceedings in parliament, and publications of its proceedings made by members in the course of legislative duty, and to proceedings in courts of justice, and publications of such proceedings. The privilege extended to parties, counsel, witnesses, jurors and judges in a judicial proceeding, and to all who, in the discharge of public duty, or in the honest pursuit of private right, are compelled to take part in the administration of justice or legislation;10 but the provisos were always attached to reports of proceedings of courts that they must be

1 Townshend, Sl. & L. § 109; 21 How. 202; 52 Ind.

273.

2 Townshend, Sl. & L. p. 83, §§ 95, 108.

3 Townshend, Sl. & L. § 108.

4 White v. Nichols, 3 How. 266.

52 Manning & Ryan, 74; 6 M. & W. 105; 6 Conn. 391: 6 Vt. 489; 111 Pa. 145; 60 Md. 158.

65 Harr. (Del.) 475; 8 Blackford (Ind.), 426; 1 Walker (Miss.), 403; 4 Mass. 163 8; 4 Ark. 110; 1 Starkie, Sl. 169.

7 Clifford v. Cochrane, 10 Bradw. (Ill. App. Ct.) 570. 8 Townshend, Sl. & L. § 208.

9 Schmisseur v. Kreilich, 92 Ill. 348; Flagg v. Rob

erts, 67 Ill. 485; 10 Bradw. (Ill. App. Ct.) 570.

10 Heard, L. & S. §§ 90, 103, 110; Odger, L. & S. 185.

full, fair, impartial and correct," not tending to excite disaffection or calculated to offend the morals of the people, nor defamatory of the character of a private individual. The later English decisions, however, have returned to the rule laid down in the old case of Toogood v. Spyring,13 where the fact that statements injurious to the character of another have been fairly made by some person in the discharge of a public or private duty. legal or moral, or in the conduct of his own affairs in matters where his own interest is concerned, is held to afford but a qualified defense, depending on the absence of actual malice. Toogood v. Spyring is supported by numerous authorities, 14 and is said, in Brow v. Hathaway, to state the broad, general principle referred to in nearly all later decisions, and in Gassett v. Gilbert16 it is said to be a leading case, and to best define the precise limits within which the publication of defamatory matter is allowed.

17

15

Are Proceedings in Courts Protected by the Rule? It is much to be doubted whether, even in England, the fact that a defamatory utterance was made in the course of a judicial proceeding would protect witnesses, jurors, counsel, or even the presiding magistrate, if the element of malice entered into such utterances. Chief Justice Cockburn, in Thomas v. Churton, said: "I should not wish to lay down the broad proposition that in no case is a judge liable for words uttered by him as a judge," and Chief Justice Tilghman, in McMillan v. Birch,18 said: "If an attor ney abuse his privilege under pretense of pleading his cause, designedly wander from the point in question, and maliciously heap slander upon his adversary, I will not say he is not responsible in an action at law." In Higginson v. Flaherty, 19 it was said: "A

proctor is not privileged in making defamatory statements not relevant to the matter in hand," and Hodgson v. Scarlett20 is to the same effect as to irrelevant utterances of attorneys.

Reports of Court Proceedings not Absolutely Privileged.-Odger, the latest English writer on the law of libel, does not concede absolute privilege to reports of judicial proceedings. He says the privilege attaching to fair and accurate reports may, of course, be rebutted by proof of actual malice.21 In Stiles v. Noakes22 the court said: "The doctrine of absolute privilege as to such reports, however truly made, must be taken with some grains of allowance. For as a judicial proceeding is privileged on principles of public convenience, the privilege is limited in respect to the subject-matter of the report, and as to the manner of the reporting;" and in Ryalls v. Leader,23 it was said: "No case has decided that a report of proceedings in a court of justice, implicating the reputation of a third person, is under any (all) circumstances privileged."

Absolute Privilege as a Legal Excuse in the United States.-The doctrine of absolute privilege is not upheld by the weight of authority in this country, and where malice is shown, not only reports of such proceedings, but the proceedings in courts of justice lose their privileged character. The general rule is laid down in the leading libel case of White v. Nichols, 24 where privileged communications are divided, by Mr. Justice Daniels, into four kinds: 1. "Wherever the publisher acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests. 2. Anything said or written by a master in giving the character of a servant who has been in his employment. 3. Words used in the course of a legal or judicial proceeding, however hard they may bear upon the party of whom they are used. 4. Publications made in the ordinary course

20 1 Barnw. & Ald. 232; Holt, N. P. 621; Johnson v. Evans, 3 Esp. 32.

21 Odger, L. & S. 256. See also Rex v. Lord Abingdon, 1 Esp. 226; Rex v. Creevey, 1 Maule & S. 273; Rex v. Carlile, 3 Barnw. & Ald. 167; Lake v. King, 1 Saunders, 132, all dissenting from Curry v. Walter, 1 Bosanquet & P. 525, and Rex v. Fisher, 2 Camp. 563. 227 East, 493.

23 L. R. 1298. See Pittock v. O'Neill, 63 Penn. 253; Townshend, Sl. & L. 367.

24 3 Howard (U. S. Sup. Ct. Rep.), 267.

of parliamentary proceedings, as a petition printed and delivered to the members of a committee appointed by the House of Commons to hear and examine grievances. He applied the same rule to all, i. e., that they are only conditionally privileged." He said: "But in all these cases, the only effect of the change of the rule is to remove the usual presumptions of malice. It then becomes incumbent on the party complaining to show malice, either by the construction of the spoken or written matter, or by facts and circumstances connected with that matter, or with the situation of the parties, adequate to authorize the conclusion. Proof of express malice so given will render the publication or petition or proceeding libelous. Falsehood and the absence of probable cause will amount to proof of malice." We find decisions following White v. Nichols in Minnesota, New York, Illinois and Tennessee,25 and in Baxter v. Saunders 26 the court say: "We consider this rule to be settled law in this country." In Illinois, where the constitution has, in the Bill of Rights, art. 2, § 4, defined the limits of privilege to be "the truth, when published with good motives and for justifiable ends," Mr. Justice Scholfield has, in Storey v. The People,27 pointed out that the language of the constitution which holds every person responsible for the abuse of the liberty of free speech, must be held to apply to courts and those by whom they are conducted. "The judiciary," he said, "is elective, and the jurors appointed by a board whose members are elected by a popular vote, and there is the same responsibility, in theory, in the judicial department as in the legislative and executive departments to the people for the faithful and diligent discharge of all duties enjoined on it." In Whitney v. Allen,28 the Supreme Court of Illinois also held that a petition to a circuit judge charging gross neglect of duty and malfeasance in office on the part of the State's attorney was not absolutely privileged. It should have been admitted in evidence, the court said, and evidence was admissible that

25 Aldrich v. Press Pr. Co., 9 Minn. 133; Commonwealth v. Blanding, 3 Pick. (Mass.) 314; Stanley v. Webb, 4 Sandford (N. Y.), 21; Ackerman v. Jones, 37 N. Y. Sup. Ct. Rep. 54; Gilmer v. Eubanks, 13 Ill. 271; Whitney v. Allen, 62 Ill. 472; Townshend, Sl. & L. p. 353, §§ 223, 224.

26 Baxter v. Saunders, 6 Heisk. (Tenn.) 383. 27 79 Ill. 52.

28 62 Ill. 472.

it was prepared for a bad purpose, and from malicious motives, thus overruling several of their earlier decisions, so far as they held that "pleadings, declarations, answers, etc., if made in the due course of a legal or judicial proceeding, cannot be made the foundation of an action for defamation, whether true or false."29 The Supreme Courts of Wisconsin, Massachusetts and New York have all said that the privilege of counsel must be understood to have this limitation, that he shall not avail himself of his situation to gratify private malice by uttering slanderous expressions against parties, witnesses or third persons which are irrelevant to the subject-matter of the inquiry.30 And the reports of court proceedings are in this country, as in England, only conditionally privileged. They must be true, fair, full and faithful.81

32

What is a True Report?-"However honestly the person who publishes a libel believes it to be true, if it is untrue in fact, the law implies malice unless the occasion justifies the act.3 It is said in the valuable English case of Flint v. Pike," that a report is not true if anything is contained in it which did not pass at the trial, or if anything is suppressed which would in any way have qualified that part which reflects on the conduct of plaintiff."

What is a Fair Report?-"The word 'fair,' when used in regard to such a publication, is equivalent to 'fairly correct. '34 It is fair if a verbatum report would have the same effect on his character as the report made.35 There must be no misrepresentation of facts, or partial or garbled statements prejudicial to the character of the individual to whom they relate.3 36 To misstate any part of the proceedings would be not to benefit and instruct, but to mislead the public.37 There is not a dictum

29 Strauss v. Meyer, 48 Ill. 386; Spaids v. Barrett, 57 Ill. 291; Story v. Wallace, 60 Ill. 54.

30 Jennings v. Paine, 4 Wis. 358; Hear v. Wood, 3 Metc. 193; Parker v. Mitchell, 31 Barb. 469.

31 Boogher v. Knapp, 97 Mo. 122; Thompson v. Powning, 15 Nev. 195; Story v. Wallace, 60 Ill. 51, 4 Sandford (N. Y.), 21, supra; Merrill, Newspaper Libel,

181.

32 Hawkins v. Globe Pr. Co., 10 Mo. App. 179; Clay v. The People, 86 Ill. 152; Allen v. Pioneer Press Co., 40 Minn. 117. (English) Abrath v. N. E. Ry. Co., 11 App. Cas. 253-4; Odger, L. & S. 3.

33 4 B. & Cr. 473 8.

34 MacDougall v. Knight & Sons, 17 L. R. Q. B. D. 636.

35 Boogher v. Knapp, 97 Mo. 122-9.

36 Starkie, Sl. & L. 272; Odger, 250.

37 Starkie, 222 273.

to be met with in the books that a man, under pretense of publishing the proceedings of a court of justice, may discolor and garble them so as to asperse the character of those concerned. 38 The defense must be published with the same degree of exactness and accuracy as the accusation, to make the report fair. ''39

What is a Full Report?-A fair summary of the leading authorities upon this point is that, while the report may be abridged, it must contain all details essential to enable others to form a correct opinion of the entire matter, to judge for themselves.40 The weight of authority holds that the evidence must be published. "A reporter cannot publish the speech of counsel reflecting on the character of an individual, annexed to a short summary of the trial, without stating the evidence," said the court, in Flint v. Pike, "and it is doubtful though the report stated the whole evidence, whether an injurious report would be justifiable unless it appeared the observa tions were warranted and that the party deserved them, or that they were so connected with the case that the detail was necessary for the information of the public." "He must state," said Chief Justice Abbott, in Lewisv. Walters,42 the whole case and not merely the conclusion he himself draws from the evidence," and in Delegal v. Highley the court held the defendant is not justified in publish ing a part of legal proceedings alone.42 In Stanley v. Webb,48 the English authorities cited are reviewed, their views indorsed, and they are declared to be "the utterances of distinguished men, who, during the last half century, have shed light and lustre on English jurisprudence." The Supreme Court of Illinois said of a publication based on the results of a coroner's inquest: "It nowhere professes to give the evidence, or to base its statement upon it. That this does not fall within the rule of privileged publications is, then, too plain for argument, and the United States Supreme Court, in White v. Nichols, also held that the evidence itself must be pub lished, not the results. The authorities agree

38 Thomas v. Crosswell, 7 Johns. Ch. (N. Y.) 262. 39 Saunders v. Mills, 6 Bing. 213.

40 Odger, 250.

41 4 B. & Cr. 473 8.

42 4 B. & Ald. 611.

43 4 Sandf. (N. Y.) 21.

44 Story v. Wallace, 60 Ill. 51.