Turner v. Hearst

SMITH, C.

This case was before the court on a former appeal by the defendant from a judgment against him, which was reversed

(Turner

v.

Hearst,

115 Cal. 394). The present appeal is by the plaintiff from a judgment in his favor for the sum of one hundred and fifty dollars, and from an order denying his motion for new trial.

The suit was brought to recover damages for a publication concerning the plaintiff in the defendant’s newspaper, the Examiner, of date December 7, 1893, which, as alleged in the complaint, is as follows:—

“

Adong time ago, Lotta (meaning Miss Carlotta Crabtree)

[234]

made serious charges against Turner (this plaintiff meaning), alleging that he swindled her out of money, and she had him (this plaintiff meaning) arrested on a criminal charge. The ease was compromised, together with the settlement of several thousand dollars in notes given by the Plumas County lawyer (this plaintiff meaning) to the actress (the said Carlotta Crab-tree meaning). ”

There is no denial of any of the allegations of the complaint. But it is pleaded by the defendant in mitigation of damages that the publication was the result of a mistake made by a reporter of the defendant’s newspaper in transferring to its columns facts reported in the Post, by which the plaintiff was inadvertently referred to instead of another, and that “when this mistake came to the knowledge of the defendant he published a full and complete statement of the circumstances under which the mistake came to be made and fully exonerated the plaintiff from any and all of the matters stated in said item.” This retraction was published February 4, 1894, nearly sixty days after the publication of the libel, and thirty-one days after service of summons. Nor was it published until after the refusal of the plaintiff to accede to a proposition made to him by the defendant, January 19, 1894, to publish the retraction, if plaintiff would dismiss his suit. Under this state of the pleadings the only question for the jury to determine was as to the amount of damages to be assessed.