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277

Mullane et al. Folger et al.

The court in this case clearly say, that in the absence of the provision of March 1, 1834, not in force now, divorce proceedings are purely statutory. This position would require no argument, were it not for a notion prevalent now, that a divorce proceeding is an equitable one.

In the case of Cooper v. Cooper, 24 Ohio St., 488, the court speak of a wife who has a decree for alimony against her husband, charged upon his lands, as a judgment creditor of her husband.

Part of the difficulty, no doubt, has grown out of the legal position, that a judgment can not be rendered against either husband or wife in favor of the other. But passing this legal fiction, what is a decree for a sum of money as alimony in favor of the wife against her husband but a statutory judgment against him? It is for a certain sum of money, ordered by the court to be paid, and it can only be enforced by an execution. That is held, in almost so many words, in the case of Olin v. Hungerford, supra. The only difference between such a judgment and judgments at law seems to be that it is not strictly a judgment against the person, for the reason that a judgment can not be rendered in favor of the wife against the husband, as a person.

It seems clear to me that a decree for alimony, being a statutory judgment, and being, in all respects but one, an ordinary judgment at law, it is subject to the limitations imposed upon ordinary judgments under sec. 5380, Rev. Stat., and therefore the decree in favor of Mrs. Webster, not having been kept alive by execution, has become dormant, and is not a lien on the estate of Obed F. Denuis.

Reuben Tyler for Mrs. Virginia C. Webster.
Paxton & Warrington, for the creditors of Obed F. Dennis.

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(Hamilton Probate Court.)

IN RE LAST WILL OF J. W. UNDERHILL. The cocaine habit, producing hallucinations, which do not appear to be of a kind

which influenced the disposition of property, may yet involve a degree of unsoundness of mind and impairment of general faculties as to be fatal to testamentary capacity.

GOEBEL, J.

Dr. J. W. Underhill, on the tenth day of September, 1886, executed a paper writing, purporting to be his last will and testament, in which he devised substantially, his property equally between his children, and appointed J. Wm. Johnson as executor, and Theodore Spear, guardian for his minor children. On the eighth day of January, 1887, he executed a paper writing, purporting to be a codicil to liis last will and testament, revoking the appointment of Theo. Spear as guardian, and appointing Dr. Chas. A. Burhaus as guardian of his minor children.

Dr. Underhili died on the twenty-eighth day of January, 1889, This paper writing is now offered for probate. In support thereof, Wm. H. Jones, Dr. Trush aud Dr. Thacker, subscribing witnesses to the will, Charles F. Klayer and Wm. Catinaud, subscribing witnesses to the codicil, were called, together with other witnesses.

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Dr. Underhill was, for many years, a physician in good practice in this city. He became addicted to the use of morphine, and, subsequently to the use of cocaine, and was using these drugs at the time of the execution of this paper writing, and up to the time of his death.

To what extent he was using cocaine at the time of the execution of this paper, the testimony does not disclose. It is evident that the habit grew upon him, and from time to time he increased the doses, so that during the latter period of his life, he was taking sixty grains per day.

Prior to, and after the execution of this paper he was laboring under hallucinations, that persons were pursuing him, and intended to do him bodily harm; that he was in danger of his life, and carried fire-arms; he imagined that friends (whom he considered enemies), intended to incarcerate him in an asylum. He secluded himseli from them, writing insulting letters, and complaining of their actions and conduct towards him, when there was nothing to complain of. When remonstrated with, he would apologize, and again make the complaint.

At the time of the execution of this paper, he was at the Iiotel Emery, in this city, having returned from a place in Kentucky. He was then under medical treatment by Doctors Trush and Thacker, two of the subscribing wituesses. On that day, these hallucinations did not manifest themselves.

Prior to, and at that time, and after the execution of this paper, he was laboring under an illusion of having bacteria. He imagined that they were present in his body, and were creeping through his skin; he constanty spoke of them, and insisted upon a microscopical examination of specimens of scrapings which he had sent to Dr. Thacker. He could not be persuaded that he did not have bacteria.

At the time of the execution of this paper, he was under the influence of cocoaine. Aside from the hallucinations and illusious, at times he would talk rationally upon subjects, and then his mind seemed to be clear. At the time of the signing of the paper, Mr. Jones believed him to be of sound mind; Doctors Trush and Thacker that he was of unsound mind.

There is no conflict in the testiniony as to this habit. As to his mental condition at the time of the execution of this paper, whatever it may have been, the hallucinations and illusions were of a diseased mind, the rsult of a continued and excessive use of cocaine.

Was Dr. Underhill at the time of the execution of this paper, a person of sound mind and under no restraint? Until permanent disorder is proved to exist no presumption of insanity can arise; sanity, being the normal condition of the human mind, is favored by the general presumption. Under Section 5929, Rev. Stat., the burden of proof is upon the party offering the will for probate.

The American and English authorities hold that a partial unsoundness, not affecting the general faculties, and not operating on the mind of a testator, in regard to testamentary dispositions, is not sufficient to render a person incapable of disposing of his property by will.

It must be conceded that the hallucinations and illusions, in point of fact, had no influence whatever, on the mind of the testator, in regard to testamentary disposition. Persons of unsound mind are not wholly without reason. In the midst of lunacy, the logical operations of the mind, though disturbed, are not necessarily extinguished. The innate force of logic frequently reasserts itself in the midst of incoherency, and gives consistency of action; again, such persons may do riglit, or do.

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In re Last Will of J. W. Underhill.

wrong in a particular matter. Hence, having made such disposition of his property as the law would have made, in the absence of a will, affords no conclusive test of the soundness of his mind.

Nor can we conclude therefrom, that lie had testamentary capacity. The question still remains, was he of sound mind? Or rather, how far is the degree of unsoundness of mind involved in the hallucinations and illusions under which Dr. Underhill labored, as would make it satal to a testamentary capacity.

This being a question of fact to be determined from the evidence, our conclusion is, that by a long continued and excessive use of cocaine, his general faculties became so impaired that, at the time of the execution of this paper writing, he was of unsound mind.

Wm. H. Jones and Johnson & Levy, for the executor.
Ramsey, Maxwell & Ramsey, for heirs.

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(Superior Court of Cincinnati, General Term, 1889.)

COMMERCIAL GAZETTE Co. V. ANNIE GROOMS. 1. A newspaper corporation is liadie in exenplary damages for the publication oi

a libel where the agent to whom was entrusted authority and discretion to publish the article containing the libel, was in so doing, guilty of actual malice toward the plaintiff, or of that degree oi wanton recklessness which in law

is the equivalent of actual malice. 2. One of the elements of damage front a libel to be considered by the jury in

their estimate of compensatory damages is the mental suffering of the plaintiff. Upon the question of the amount of such suffering, the plaintiff is a

competent witness. 3. To admit evidence of unconscious acts done and words spoken by the plain

tiff in the presence only of her husband is a violation of sec. 5241, clause 3 of the Rev. Stat., and is error which may be taken advantage of in a reviewing court if at the trial objection was made to the question and a motion was made to rule out the answer, and the ruling of the court was excepted to in

each case without stating the ground. TAFT, J.

This was an action for libel resulting in a verdict and judgment at special term for a substantial sum in favor of the defendant in error, Mrs. Annie Grooms. The Commercial Gazette Company seeks to reverse that judgment for errors committed by the trial court. It was in evidence that the city editor of the defendant below received a telephone message that an important item of news could be obtained at a fire engine station, at Ninth and Freeman streets in this city; that he sent Johnston, a regular reporter of the paper, to get the item, that Johnston found a man pamed Myers; a fireman, who told him a story which he embodied in an article for publication, charging Mrs. Grooms with adultery with a fellow fireman of Myers; that he handed the article to the managing editor who glanced at it and sent it up to be printed, relying on Johnston's assurance that all the statements in the article could be corroborated. It was further in evidence that Johnston was a careful reporter. Counsel for the company asked the following charge: "If

you find that the publication complained of was false; that the same was prepared by Johnston, a reported of delendant, on investigation

Superior Court of Civcinnati.

292

made by him; that the defendant did not know or have reason to know that it was false, and that the defendant was not negligent in selecting and retaining Johnston as a reporter, then the defendant is exempt from what are called punitive dainages in this case, and is held only to such damages as plaintiff has actually suffered.” The court refused to give this charge, and the resusal is relied on as error. It is argued that a newspaper can not be held for exemplary damages unless express malice is brought home to it, and that malice of its agents can not be imputed to it for such purpose. It is said in Cooley on Torts, 219, and the Post Co. v. McArthur, 16 Mich., 447, that a newspaper proprietor can not be mulcted with exemplary damages for malice or wanton recklessness of a reporter unless it appear that there was negligence in selecting the reporter, or the paper is in the habit of publishing sensational reports derogatory to the character of people. This is to hold in elfect, that a newspaper proprietor can not be made liable in exemplary damages unless he has expressly authorized a wanton libel, and supports the claim of counsel for the company. See also Eviston v. Kramer et al., 57 Wisconsin, 577.

We do not think, however, that the rule laid down in the cases cited is supported either by the Ohio authorities, or the weight of authority generally. In this state, exemplary damages may be allowed in all, actions for tort where the act complained of involved malice, insult or fraud. Roberts v. Mason, 10 Ohio St., 277. Peckhams Iron Co. v. Harper, 41 Ohio St., 100, it appeared that Harper fraudulently procured a sale of iron to his firm from the plaintiff and appropriated the proceeds of his fraud to himself without informing his partners of the transaction, although acting in the name of the firm in making the sale. It was held that it was a case where exemplary damages might be allowed against all the members of the firm notwithstanding the fact that Harper was the only meinber cognizant of the fraud or deriving benefit from it.

The decision was put upon the ground that the making of the sale was within the scope of Harper's agency for the firm, and the firm was therefore civilly liable for the fraud so cominitted with all its consequences although enjoying none of its fruits. It is difficult to see why, if a principal is liable in exemplary damages for the fraud of his agent's acts within the scope of the agency, when the principal derives no benefit fiom the fraud, he should not also be liable in exemplary damages for the malice of his agent in acts within the scope of the agency. It certainly is no less the policy of the law to discourage malice than fraud.

But we are not left to the analogy between fraud and malice for the rule in this state. In Railroad Company v. Dunn, 19 Ohio St., 162, our Supreme Court lay down the following as the law:

"A corporation may be subjected to exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons acting for themselves would be liable to such damages.” The principle was there applied to the act of a railway conductor in using unnecessary force to eject a passenger from the train of the defendant company. It was within the scope of the conductor's authority to decide for the company, when a passenger should be ejected and how much force should be used. For the malice or its equivalent, the wanton recklessness of the conductor in the exercise of such authority, the company was held liable in exemplary damages. Judges White and Welch dissented from this decision, but for

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Commercial Gazette Co. v. Grooms.

more than twenty years, the majority decision has stood unshaken as the law of Ohio.

In the case at bar, it was within the scope of Johnston's agency for the newspaper company, to investigate the facts in regard to the newsitem upon which he had been detailed, and to decide upon the truth of the information which he was to embody in an article for publication. If in the discharge of this duty and the exercise of the authority thus imposed, he was guilty of malice or wanton recklessness toward the person who was the subject of the article, for such malice or reckless disregard of the rights of another, the newspaper company is clearly liable in exemplary damages, upon the authority of Railway Co. v. Dunn, just cited. Indeed, the case of a newspaper and its reporter is a stronger case for the application of the principle there laid down, than that of a railroad company and its conductor. In the latter case, the tort is committed before any other agent of the company itself has any notice, while in the former, at least in cases of libel per se like the one at bar, the company is put upon notice of the possible character and effect of the article when presented for publication, and may be said by the publication to knowingly assume all its consequences. The principle' we follow is expressly upheld in Massachusetts, in Lothrop v. Adams, 133 Mass., 471, where the action was for libel against three partners who were publishing a newspaper. By the statutes of Massachusetts, the defendant may give in evidence the truth of the matter charged as libellous, "and such evidence shall be deemed a sufficient justification, unless malicious intention shall be proved.” It appeared that only one partner knew of the article or its publication. Counsel asked the court to charge that the other two partners could not be held liable for the one who published the article. This the court refused to do, but told the jury that as the one was the agent of the other two, they were liable for his express malice. The Supreme Court of Massachusetts held that this was not error. Judge Field, in an elaborate opinion, shows, by numerous authorities, that the malice or fraud of agents, when characterizing and accompanying acts done by them within the scope of the business entrusted to their discre tion, is imputable to their principals; and that this is true of corpora tions as well as individuals. He suggests that if the ground of liolding a principal for the fraud of his agent is that the principal profits therehy, so, by analogy, a newspaper should be made liable for the malice of its agents, because it has received whatever of benefit there may be in the publication of the libel. See also Reed v. Home Savings Bank, 130 Mass., 443; Philadelphia, Wilm. & Balt. R. R. Co. v. Quigley, 21 How., 202; Whitfield v. South Eastern Ry., Ellis Bl. & El., 115; Mackey v. Commercial Bank L. R. 5 P. C., 394.

From what has been said, it (ollows that where a newspaper corporation employs a reporter to write articles containing statements which, if untrue, are libellous on their face, and publishes them, the corporation may be held liable in exemplary damages for the malice or wanton recklessness of its reporter. The charge requested was rightly refused.

The other principal ground of error complained of is the admission of evidence tending to show mental suffering by Mrs. Grooms produced by the publication of the article. Mrs. Groomis was permitted to testify as to its extent. Her physician, who attended her when ill subsequent to the publication, was allowed to testify of the presence of mental disturbance in that illness which could be attributed to no other cause, and Mrs. Grooms' husband gave evidence which was received of Mrs. Grooms'

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