LACOMBE, Circuit Judge
(after stating the facts as above). The motion to remand may be more conveniently considered after the cause has been discussed qn the merits! The defendant Mann is the publisher of a weekly paper called Town Topics, issued in-New York, which has concededly a large circulation here and in Pittsburgh, where the plaintiff resides.
On March 28, 1907, there was published in the paper the following paragraph, of which plaintiff complained:
“In this connection it is interesting to note that some time ago Samuel bought a handsome house in Craig street, and there installed a big voluptuous-looking lady whose ostensible ■ occupation is trimming hats, an occupation made particularly lucrative through her intimacy with the Dempsters, an intimacy -'which must be very warm, since she was one of the few outsiders at Will’s very small private funeral.”
This particular paragraph was preceded by another, the two being separated by a line, both paragraphs referring apparently to the same individual. It is quite apparent that the last paragraph standing alone [79] in no way indicates who the individual is that is referred to as “Samuel.” Plaintiff set out the entire article in the complaint, although he charged intent to libel only by the publication of the paragraph above quoted. Upon the trial defendants moved to strike out from the complaint all of the paragraph above the line, and objected to the introduction in evidence of the article as a whole.
The court expunged several passages from the first paragraph; i. e., he did not allow plaintiff to read them to the jury. So much of the paragraph as was admitted reads as follows:
“Not so many years ago the W. W. O’Neill was the largest of the ungainly, stern-wheel towboats plying on Western waters between the coal fields of the Pittsburgh district, down the Ohio and Mississippi to Southern coal ports, and the golden returns she brought were plentiful enough to generously reward those whose venture she was. The big boat is still in the business, but the man for whom she was named, Captain W. W. O’Neill, one of the old-time steamboat men and coal operators, has been dead these, many years. He lived long enough, however, to see a family of darlc-haired, Junoesque daughters ripen to a stage where their looks and his money made them good catches. When the last named, Lou, was married to Will Dempster, son of Alex. Dempster, one of the good old pillars of Pittsburgh, her prospects were considered the best of all the O’Neill girls. But last November Will died. It was on the bounty of the father that the son’s widow and child found themselves thrown. They had reason to expect much, for the name of Dempster was synonymous with deeds of charity and philanthropy. But the widow had not taken into account her brother-in-law, Samuel.”
Defendant contends that it was error to read this to the jury because “it tended to inflame and prejudice the minds of the jurors against defendants.” The two paragraphs are both parts of the same article. The one below the line begins with the words “In this connection.” "Defendants before the reading admitted that by “Samuel” in the second paragraph “Samuel Dempster, the plaintiff, was intended,” and now insist that, in view of that concession, it was error to admit the first paragraph. We do not so think. Where an article of this sort contains words which by innuendo may be held libelous, the plaintiff is entitled to put the entire article in evidence. It affords a side light for the jury when considering the innuendo and also the question whether or not there, was any express malice, as the law defines that term, viz., “wanton and reckless disregard of the rights of others.”
Defendants also now insist that it was error to expunge anything from the first paragraph before allowing it to be read to the jury. We do not find any exception on which to base such an argument. Defendants’ counsel excepted to any part of the first paragraph being read. When his objection was overruled and the parts admitted were read, he did not ask to have the omitted passages also read. But, if it were error to omit them of which error he could here complain, the error was not harmful because the omitted passages contain merely some unkind allusions to the experiences of the “dark-haired Junoesque daughters,” one of the allusions coming perilously near to an insinuation of unchastity. The jury would be more likely to become “inflamed” if they were in than if they were out.
The next proposition advanced by the defendants is that they were entitled to open and close. Leaving out all questions arising upon the [80] defenses affirmatively pleaded) the issues presented when the jury was impaneled were these:
(1) Whether or not plaintiff was a citizen of Pennsylvania.
(2) Whether or not defendants published the article in Town Topics, and widely circulated the same in New York, Pittsburgh, and elsewhere.
(3) Whether or not the statements in the article were published concerning the plaintiff.
(4) Whether or not they were false.
(5) Whether or not defendant made any effort to communicate with plaintiff prior to publication.
(6) Whether or not prior to publication defendants made any effort to verify the truth of the article.
(7) Whether or not the statements were made recklessly and maliciously.
(8) Whether or not the statements were made with the intent to convey to the public the impression charged in the innuendo.
If a published statement is libelous, plaintiff need not prove its falsity. It is for defendant to justify by showing the statement to be true. As to No. 4 plaintiff did not have the burden of proof. Nos. 5, 6, and 7 deal with the question of damages—whether or not there was such express malice as would sustain a claim for more than the compensatory damages to which plaintiff would be entitled-if the libel were not justified.. If plaintiff seeks to recover more than compensatory damages, he must show more than the mere fact that a libel was published. At the opening of the trial defendants conceded the affirmative of propositions 1, 2, and 3, but such concession did not give ■ them the right to open and close on the whole case.
The proposition mainly relied upon by defendants is that “the printed matter was not libelous per se or libelous at all.” The complaint averred that by innuendo defendants intended to and did charge and convey to the public an impression that plaintiff had with an immoral motive bought and paid for the house in Craig street, and installed therein the lady referred to, whose occupation of trimming hats was ostensible merely, and was a shield and cover to an “illegal and illicit and immoral relationship with plaintiff.”
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LACOMBE, Circuit Judge
(after stating the facts as above). The motion to remand may be more conveniently considered after the cause has been discussed qn the merits! The defendant Mann is the publisher of a weekly paper called Town Topics, issued in-New York, which has concededly a large circulation here and in Pittsburgh, where the plaintiff resides.
On March 28, 1907, there was published in the paper the following paragraph, of which plaintiff complained:
“In this connection it is interesting to note that some time ago Samuel bought a handsome house in Craig street, and there installed a big voluptuous-looking lady whose ostensible ■ occupation is trimming hats, an occupation made particularly lucrative through her intimacy with the Dempsters, an intimacy -'which must be very warm, since she was one of the few outsiders at Will’s very small private funeral.”
This particular paragraph was preceded by another, the two being separated by a line, both paragraphs referring apparently to the same individual. It is quite apparent that the last paragraph standing alone [79] in no way indicates who the individual is that is referred to as “Samuel.” Plaintiff set out the entire article in the complaint, although he charged intent to libel only by the publication of the paragraph above quoted. Upon the trial defendants moved to strike out from the complaint all of the paragraph above the line, and objected to the introduction in evidence of the article as a whole.
The court expunged several passages from the first paragraph; i. e., he did not allow plaintiff to read them to the jury. So much of the paragraph as was admitted reads as follows:
“Not so many years ago the W. W. O’Neill was the largest of the ungainly, stern-wheel towboats plying on Western waters between the coal fields of the Pittsburgh district, down the Ohio and Mississippi to Southern coal ports, and the golden returns she brought were plentiful enough to generously reward those whose venture she was. The big boat is still in the business, but the man for whom she was named, Captain W. W. O’Neill, one of the old-time steamboat men and coal operators, has been dead these, many years. He lived long enough, however, to see a family of darlc-haired, Junoesque daughters ripen to a stage where their looks and his money made them good catches. When the last named, Lou, was married to Will Dempster, son of Alex. Dempster, one of the good old pillars of Pittsburgh, her prospects were considered the best of all the O’Neill girls. But last November Will died. It was on the bounty of the father that the son’s widow and child found themselves thrown. They had reason to expect much, for the name of Dempster was synonymous with deeds of charity and philanthropy. But the widow had not taken into account her brother-in-law, Samuel.”
Defendant contends that it was error to read this to the jury because “it tended to inflame and prejudice the minds of the jurors against defendants.” The two paragraphs are both parts of the same article. The one below the line begins with the words “In this connection.” "Defendants before the reading admitted that by “Samuel” in the second paragraph “Samuel Dempster, the plaintiff, was intended,” and now insist that, in view of that concession, it was error to admit the first paragraph. We do not so think. Where an article of this sort contains words which by innuendo may be held libelous, the plaintiff is entitled to put the entire article in evidence. It affords a side light for the jury when considering the innuendo and also the question whether or not there, was any express malice, as the law defines that term, viz., “wanton and reckless disregard of the rights of others.”
Defendants also now insist that it was error to expunge anything from the first paragraph before allowing it to be read to the jury. We do not find any exception on which to base such an argument. Defendants’ counsel excepted to any part of the first paragraph being read. When his objection was overruled and the parts admitted were read, he did not ask to have the omitted passages also read. But, if it were error to omit them of which error he could here complain, the error was not harmful because the omitted passages contain merely some unkind allusions to the experiences of the “dark-haired Junoesque daughters,” one of the allusions coming perilously near to an insinuation of unchastity. The jury would be more likely to become “inflamed” if they were in than if they were out.
The next proposition advanced by the defendants is that they were entitled to open and close. Leaving out all questions arising upon the [80] defenses affirmatively pleaded) the issues presented when the jury was impaneled were these:
(1) Whether or not plaintiff was a citizen of Pennsylvania.
(2) Whether or not defendants published the article in Town Topics, and widely circulated the same in New York, Pittsburgh, and elsewhere.
(3) Whether or not the statements in the article were published concerning the plaintiff.
(4) Whether or not they were false.
(5) Whether or not defendant made any effort to communicate with plaintiff prior to publication.
(6) Whether or not prior to publication defendants made any effort to verify the truth of the article.
(7) Whether or not the statements were made recklessly and maliciously.
(8) Whether or not the statements were made with the intent to convey to the public the impression charged in the innuendo.
If a published statement is libelous, plaintiff need not prove its falsity. It is for defendant to justify by showing the statement to be true. As to No. 4 plaintiff did not have the burden of proof. Nos. 5, 6, and 7 deal with the question of damages—whether or not there was such express malice as would sustain a claim for more than the compensatory damages to which plaintiff would be entitled-if the libel were not justified.. If plaintiff seeks to recover more than compensatory damages, he must show more than the mere fact that a libel was published. At the opening of the trial defendants conceded the affirmative of propositions 1, 2, and 3, but such concession did not give ■ them the right to open and close on the whole case.
The proposition mainly relied upon by defendants is that “the printed matter was not libelous per se or libelous at all.” The complaint averred that by innuendo defendants intended to and did charge and convey to the public an impression that plaintiff had with an immoral motive bought and paid for the house in Craig street, and installed therein the lady referred to, whose occupation of trimming hats was ostensible merely, and was a shield and cover to an “illegal and illicit and immoral relationship with plaintiff.”
The paragraph complained of consists of a number of separate assertions, each of which, standing by itself, is perfectly innocent. Even the statement that .the occupant of the house was “a big, voluptuous looking lady” is'not libelous, though it may be impertinent and might tend to a breach of the peace on the part of her male relatives. But words perfectly innocent when standing by themselves may be thrown into such juxtaposition as to become libelous. To effect such a collocation is a common device of experienced paragraphers of personal gossip. When haled into court they are usually vociferous in asserting that no libelous statement, can be found in the article, and frequently seek to becloud the case by introducing much testimony to establish the truth' of the several separate statements, insisting that they have thus “justified” the publication. Thus one may publish of an [81] individual: “This is the same John Smith who got himself into serious trouble when he was in Arizona three years ago. Horse stealing is not popular in that community.” He may safely assume that any court will take judicial notice of the fact that horse stealing is not popular in Arizona or even elsewhere. He may be able to prove that, when John Smith was in Arizona at the time stated, he insisted on riding a half-broken horse, was thrown in an infrequented part of an alkali desert, broke his leg, and lay there two days before he was rescued. But ability to prove the occurrence of such serious trouble would be no justification of the statement which the article by indirection conveyed, that John Smith when in Arizona was discovered to be a horse thief. So in the case at bar we have an ingenious collocation of innocent assertions which is certainly well calculated to convey the impression charged in the complaint. Whether or not it was intended to convey such impression was a question for the jury, but we should certainly have a poor opinion of the intelligence of 12 men, who might reach the conclusion that the paragraph was constructed with an innocent intent. If no more was intended than a publication of the various innocent statements as to the purchase of a house, the trimming of hats, and the attendance of some obscure person at a private funeral, why would space be given to such uninteresting details in the columns of the paper? It is difficult to escape the conviction that the paragraph found a place in Town Topics only because the innocent assertions were so skillfully put together as to make the article a spicy bit of gossip In this case as in our illustrative example, the evidence adduced in justification was confined to the innocent statements, such as the purchase of the house, etc. There is not a scintilla of evidence tending to show the existence of immoral or illicit relations. Moreover, it appears that the paragraph was published without the slightest effort on the part of defendants or their subordinates to make any investigation as to the existence of such relations.
It is further argued that the verdict is excessive, but it is well settled that the size of the verdict is not a subject of review in this court. There are various other assignments of error, which have all been examined. Since they have not been discussed in the brief, they need not be here rehearsed. We find in them no ground for reversal.
The preliminary motion may now be considered. The relief asked for was to remand the cause to the Circuit Court, to authorize and empower plaintiffs in error to make an application to the trial judge to set aside the judgment and the verdict and grant a new trial. Since the. term at which the cause was tried has long since expired and has not been extended by order, the trial judge would have no power to grant such relief, if the cause were remanded. This is sufficient ground for denying the motion. The application was made because in our former decision it was held that exceptions to the charge reserved after the jury had retired could not be considered. Counsel for the plaintiff, while opposing the motion, expresses his willingness to have these exceptions considered. This, for reasons given in our former opinion, cannot be done. A majority of the court, however, in order to satisfy [82] defendants that errors in practice have not deprived them of any substantial rights, have added a footnote to this opinion.1
The judgment of the circuit court is affirmed.