erroneous when tested by the nicer rules of | against him. It is not denied now that since grammatical construction. 1872 his expenses have been paid by the RepubRodgers v. Kline, 56 Miss. 808; Sternau v.ican party while he came home and voted the Marx, 58 Ala. 608; Townshend, Libel & Slander, § 139; Odgers, Libel & Slander, 107. The question is always: How would ordinary Englishmen, previously unacquainted with the matter, fairly understand the words? Odgers, Libel & Slander, chap. 3, p. 93. This court has fully explained what the Legislature meant in saying that the defendant may give proof of intention. Hotchkiss v. Porter, 30 Conn. 414. Defendant could not, by his simple disavowal, settle the question of construction as to the first two epithets and then proceed to justify the use of the remaining one. Odgers, Libel & Slander, 169, chap. 7. The newspaper articles were not introduced for the purpose of mitigating damages, but to show intent and want of malice. For this purpose they were clearly inadmissible. Lothrop v. Adams, 133 Mass. 471; Hatfield v. Lasher, 81 N. Y. 246; Kinney v. Roberts, 26 Hun, 170. Messrs. A. P. Hyde and Briscoe & Andrews for appellee. Pardee, J., delivered the opinion of the 'court: The plaintiff was an unsuccessful applicant for the office of postmaster. Mr. W. W. Eaton opposed his appointment. Concerning the matter the defendant published in a newspaper called The Bridgeport Daily Standard the following words, viz.: “Mr. Eaton might indorse a partisan and would be more likely to do so than not; but he would not knowingly indorse a thief, a jail bird or a sneak like Arnott." The defendant admitted the publication, also that the plaintiff was the Arnott referred to; also that there was no reason for the application of either of the epithets "thief" or "jail bird" to him; and denied that there was any such application either in fact or intent; insisting that every person of ordinary intelligence would understand that these were applied to some unnamed persons and that only the epithet sneak" was applied to him-justifying this last. 66 Upon the trial to the jury, not withstanding the plaintiff's objections, the court as tending to prove the absence of malice but not for the purpose of construing or modifying the language, allowed the author of the publication to testify that he did not therein intend to charge the plaintiff with being either a "thief" or a jail bird;" also allowed the defendant to disavow these epithets and prove the truth of the epithet "sneak;" also, as tending to prove absence of malice, allowed the defendant to read to the jury the following publication made in another newspaper prior to the publication by the defendant of the words complained of, viz.: "The Democrats think they have virtually fixed Arnott's postoffice aspirations. Elam O. French was sent to Washington to urge the charges against Arnott. Dr. Pease is with him, and both men are quite harmonious in their effort to defeat the nominee. Thirteen specific charges of dishonesty in politics are made Democratic ticket when he voted any. This piece of news came like a thunderbolt upon his Republican backers." The defendant had a verdict. The plaintiff appeals. The statute, § 1116, provides as follows, viz. : "In every action for a libel the defendant may give proof of intention; and unless the plaintiff shall prove either malice in fact *** he shall recover nothing but such actual damage as be may have specially alleged and proved." At common law it is in some cases the right of the defendant in an action for libel under proper pleadings to prove his intentions for the purpose of rebutting wholly, or in some measure, the malice presumed by law or attempted to be proven; for instance, under the general issue the defendant might prove in justification that the publication was a privileged communication, and such facts and circumstances so closely attending the speaking or the publishing as to prove the intent. In other cases the defendant could prove his intention only in mitigation of damages; as that the libel was printed by mistake, which was forthwith corrected, or that he published what others had previously published, believing it to be true. The cited statute was doubtless enacted in the interest of publishers of newspapers. It intended to furnish them a measure of protection in the publication of current news, criticisms upon public men and measures, and comments upon matters of public interest. It placed such publications upon the same piane with privileged communications in this respect, viz.: under proper pleadings allowing the defendant to prove in justification that the publication was intended merely as an item of news; or of fair and just criticism upon men and measures; and if he could make such proof, it should rebut the presumption of malice raised by the law from the publication of a false and defamatory article, and put upon the plaintiff the burthen of proving by other and additional evidence an improper and un justifiable motive. We think that the interpretation put upon this statute in Moore v. Stevenson, 27 Conn. 14, permitting the defendant in an action for libel, to prove, in justification, that his intention in publishing what he admits to be a libel was merely to give what he supposed to be current news or make what he supposed to be a just and fair criticism upon the conduct of the plaintiff, will also include permission to prove for the same purpose that he had never heard any person call the plaintiff a thief; that he had never thought nor intended to say that he was one; and that he had only been made to say what was not in his mind by a mistake in punctuation. Honest mistakes in punctuation, in believing and republishing what has been previously published, and in criticism, are all and equally within the protection of the statute. Damages are to be graduated by the degree to which the motive is unjustifiable and improper. The question of fact whether the words as punctuated and published do or do not charge theft remains solely for the jury-the words to be interpreted according to the common understanding, and not at all by the intent of the author. He, in fact, while saying one thing, may have intended to say another and a different one; but that which was said must stand in preference to that which, although intended, was not said. It was the right of the defendant to plead and prove that the publication did not charge the plaintiff with being either a "thief" or a" jail bird," and did charge him with being a "sneak;" also to assume that the verdict might be in accordance with this plea, and proceed to complete its defense by justifying the last epithet. For the purpose of proving the absence of an unjustifiable and improper motive in writing and publishing the article complained of, the defendant was permitted to prove that the author derived his information from articles in several newspapers; one of them was read to the jury. There was no error in this. The cited statute permits the defendant to prove that before the publication complained of was made, the information therein contained had to his knowledge previously become the property of the public by means of publication in other newspapers. The counsel for the plaintiff in their brief claim that the articles read to the jury had not been seen by the writer of the libelous article. Of course if it were so their publication could not have affected his intention in writing the article in question. But this question seems to be disposed of by the finding, which we interpret as saying that, in answer to the question from what sources he derived his information, the witness included the Springfield Republican with the other papers named, and read the articles in question to the jury as being the ones which he had read from that paper or from other papers which had copied them. If, however, we are wrong in our interpretation of the finding, the plaintiff is still without cause of complaint. He alleged that the defendant had published of and concerning him that he was a thief and jail-bird. The defendant denied such publication of or concerning him. This was an issue for the jury. The plaintiff claimed it to be so and the court submitted it to them. The verdict finds all the issues for the defendant. That verdict is conclusive so far as any question before this court is concerned. Therefore all evidence as to malice or intention ceases to be of any importance. There is no error in the rulings complained of. In this opinion the other Judges concurred. MISSISSIPPI SUPREME COURT. C. H. ALEXANDER et al., Appts., v. WESTERN UNION TELEGRAPH CO. (.......Miss........) 1. A demurrer should be overruled where the complaint shows a right to nominal dam ages, if no more. 2. On an admission that land would have been obtained with a good title if a telegram had been promptly delivered, for delay in delivering which the action is brought, it is entirely immaterial whether the alleged agent to whom the message was directed had written authority to sell or not. 3. The fact that a statutory penalty for failure to deliver a telegram promptly cannot be recovered because the message was to be delivered beyond the limits of the State, will not make a declaration of but one count claiming such penalty demurrable, where that is but part of the amount claimed. 4. The difference between the price at which property was offered and its actual market value at the time when a telegram accepting the offer should have been delivered may be recovered against a telegraph company for failure to deliver the message within a reasonable time, although notified of its importance, in consequence of which the sender of the message lost the purchase. (February 4, 1889.) The facts are fully stated in the opinion. Messrs. Brame & Alexander and Wiley N. Nash for appellants. Messrs. Sykes & Richardson and E. H. Bristow, for appellee: A telegraph company is liable to pay compensatory damages, only: (1) when by reason of the nondelivery of the message 'the sender makes a purchase at a higher price than he would have had to pay if the message had been delivered promptly; or (2) when the message delivered promptly would have ipso facto concluded and closed a contract at a certain price; and owing to the failure to deliver promptly the property is sold to another and the bargain is lost. In the former case the measure of damages is the difference between the price actually paid and the price at which the property could have been had if the message had been promptly delivered. the difference between the price at which the In the latter case the measure of damages is purchase would have been made if the message had been promptly delivered, and the price at which it could be afterwards had by the use of reasonable diligence. Western U. Teleg. Co. v. Hall, 124 U. S. 444 (31 L. ed. 479). In all other cases though a profitable speculation might, and probably would, have been made, yet damages cannot be recovered because APPEAL by plaintiffs, from a judgment of in contemplation of law the probable "gains the Circuit Court of Oktibbeha County, prevented" or "losses sustained" cannot be sustaining a demurrer to the amended declara-rendered certain by the evidence." tion in an action to recover damages alleged to Booth v. Spuyten Duyvil Rolling Mill Co. 60 have been caused by delay in delivering a N. Y. 487; White v. Miller, 71 N. Y. 133. telegram. Reversed. "All remote, speculative and uncertain re See also 9 L. R. A. 744; 35 L. R. A. 548; 43 L. R. A. 214. Squire v. Western U. Teleg. Co. 98 Mass. 238. The offer by Carothers to sell was absolute, positive, unconditional. The telegram is not an acceptance of Carothers' offer. sults, as well as possible profits and advan. | importance of its being sent and delivered tages which might have arisen from the ful- promptly; that, on account of the negligence of fillment of the contract, must be excluded as the appellee, the message was not delivered at forming no just or legitimate basis on which Chattanooga until 8 o'clock P. M, on Tuesday, to determine the extent of the injury actually the 7th of December, 1886; that it resulted from caused by a breach." the delay in the transmission and delivery of the message that the lot was sold to another before receipt of the message, on December the 7th, and appellants lost the purchase and bargain, and sustained the actual loss and damages claimed; that upon being informed of their failure to obtain the lot, and of its purchase by another, appellants promptly endeavored to buy it from the purchaser, but could not get it for less than $5,000; that, although the lot was offered at $3,000, it was of the market value of $5,000, and at the time of the institution of the suit it had advanced in value so as to be worth $8,000 or $10,000. The message must be one "which on its face purports to be an acceptance of an offer for the sale of property." Idem. Where an offer to sell is made, the acceptance of the offer "must comprehend the whole of the propositions; it must be exactly equal to its extent and provisions, and it must not qualify them by any new matter." 1 Parsons, Cont. 476. If a person answers a proposal, not rejecting, but proposing to accept under some modifications, this is a rejection of the offer. Id. p. 477. Appellants claimed, as damages, the difference between the price at which the lot was offered to them and its actual market value at the time when the message should have been delivered at Chattanooga; and in the original declaration the statutory penalty of $25 allowed by the Act of 1886, for the failure to deliver telegraphic messages within a reason The damages to be recovered from a telegraph company for beach of a contract to transmit a message "must be such as might properly be deemed to have been in contem-able time, was also claimed. plation of the parties when the contract was entered into." Squire v. Western U. Teleg. Co. 98 Mass. 238. If the declaration shows on its face that Carothers was not the agent of the owner of the lot, then the whole declaration is defective. Arnold, Ch. J., delivered the opinion of the court: These facts are stated, substantially, both in the original and the amended declaration: Appellee, as a corporation duly chartered, was engaged in the business of receiving and transmitting for hire telegraphic messages for the public; that its lines extended from Starkville, Miss., to Chattanooga, Tenn.; that appellants desired to purchase a certain lot of land in the latter place, and were informed on the third of December, 1886, by letter, from the agent of the owner of the lot, that it could be bought for $3,000, and that if they wanted it at that price, to inform him by wire on or by | the 6th day of December, 1886, of their accept ance; that on that day appellants delivered to the operator of appellee, at Starkville, a message, and paid the price for its transmission to the agent of the owner of the land, at Chattanooga, in these words: Appellée demurred to the original declaration, and assigned, in substance, for special causes of demurrer, that no cause of action was shown in the declaration; that the damages sued for were not actual and immediate, but remote, contingent and speculative; that it was not shown that plaintiffs suffered any actual loss by the alleged negligence; that it did not appear that if the message had been promptly delivered, the trade for the land would have been concluded; that the statutory penalty sought to be recovered, in connection with other damages, could not, under the Constitution and laws of the United States, be enforced. The demurrer was sustained, and leave given to plaintiffs to amend, and an amended declaration was filed, and to it there was a demurrer. The special causes of demurrer to the amended declaration were, in effect, the same as those to the original, with the additional causes that it was not shown that the agent of the owner of the land had any authority in writing to sell or contract for the sale of the land, and that the message was not an absolute, but a conditional, acceptance of the offer made by the agent of the owner of the land. The demurrer to the amended declaration was also sustained, and, appellants declining to amend further, final judgment was entered against them; and they appealed, and assign for error the action of the court in sustaining Get the demurrers. Starkville, Miss., Dec. 6, 1886. Neil W. Carothers, Atty. at Law, Chattanooga, Tenn.: Yours of third received. option till Monday, if can; if not, close trade and fix papers. That the message was delivered to the operator at Starkville about 1 o'clock P. M. on the 6th of December; that it was the intention of appellants to purchase the lot, and they were prepared to do so, at the price at which it was offered, and that they would have secured it, and a good title to the same, if their message had been promptly delivered at Chattanooga; that at the time the message was delivered to the operator at Starkville he was informed of appellants' purpose in sending it, and of the In any view of the case, appellants were entitled to recover nominal damages, the amount paid for the transmission of the message, if no more, and for that reason the demurrers should have been overruled. Parks v. Alta Cal. Teleg. Co. 13 Cal. 422; Daughtery v. American Ü. Teleg. Co. 75 Ala. 168. But they should have been overruled on broader grounds. If the facts stated in the dec larations, and admitted by the demurrers to be true, do not constitute a good cause of action against the telegraph company, it is difficult to conceive what would. We construc the message to be an acceptance of the lot on the | it had been purchased as soon as the mistake terms at which it had been offered; but whether was discovered. it was or not, and whether or not it was of itself sufficient to close the trade for the lot, it is alleged in the declarations, and admitted by the demurrers, that, if the message had been promptly transmitted and delivered, appellants would have obtained the lot, and that by the delay in the delivery of the message they lost the purchase, and suffered the loss and damages for which they sue. These allegations might have been avoided by facts, but not by de murrer. In U. S. Telegraph Company v. Wenger 55 Pa. 262, there was a failure by the telegraph company to deliver a message to buy certain stock, which advanced in price between the time when the message should have been delivered and the time it was purchased under another order. It was held that the company was liable for the amount of the advance in the price of the stock between those dates. In the face of the admitted fact that appellants would have procured the lot and a good title to the same, if their message had been duly delivered, it was entirely immaterial whether Carothers, the alleged agent, had written authority to sell or not. That might have been an important matter in a suit between ap-livered to them by the telegraph company. pellants and the owner of the lot, touching the validity of the sale; but if appellants prove what they allege, it would be no defense to the telegraph company for a violation of its con tract. It is true that, under the decision of the Supreme Court of the United States in Western Union Telegraph Company v. Pendleton, 122 U. S. 347 [30 L. ed. 1187], the penalty imposed by our statute on telegraph companies for failure to deliver messages within a reasonable time, and which was claimed in the original declaration, cannot be enforced, because the message was to be delivered beyond the limits of the State; but that was no cause for sustaining the demurrer to the original declaration. The statutory penalty was but part of the amount claimed in a declaration of but one count. The demurrer was to the whole, and not to a part only, of the declaration. In such case, the demurrer must be overruled. 1 Chitty, Pl. 665. We do not find that the damages claimed fall within the category of being too speculative, remote or contingent to be recoverable. On the contrary, they appear to be the actual damages that resulted directly and naturally from the breach of duty and contract upon which the complaint is founded; and they are capable of being ascertained and established, not only with reasonable but with as near absolute certainty as any class of damages. On the admitted facts, it requires no expansion of the just rules of law to hold the telegraph company liable for the damages claimed. It seems like attempting to cut the throat of common sense, and knock the brains out of reason, to maintain the proposition that a man sustains no loss or injury cognizable by law when he is offered property for $3,000, worth $5,000 in the market, and which he is ready and anxious to buy, but is prevented from doing so by negligence such as is disclosed in the record, and not denied or avoided by any excuse or justification. In Rittenhouse v. Independent Line Telegraph Company, 44 N. Y. 263, where the operator of the telegraph company made a mistake in the article ordered by telegram, it was held that the company must make good the difference between the price of the article actually ordered, at the time when the dispatch should have been delivered, and the price of the same article, if In Western Union Telegraph Company V. Hyer, 22 Fla. 637, appellees, ship brokers in Pensacola, having been engaged by a customer to charter a vessel, sent a telegram to their correspondent in Barbadoes, making an offer for the charter of a vessel. The offer was accepted, and a message sent to appellees informing them of the acceptance, but it was not deTheir correspondent in Barbadoes, as their agent, signed the usual charter-party for appellees. Not receiving the answer to their mes sage, they told their customer that they had failed to charter the vessel; whereupon he chartered another. Two weeks afterwards the vessel came to Pensacola, as required by the charter-party, signed by appellees' agent in Barbadoes. They were compelled to recharter the vessel at a loss, and it was held that the telegraph company was responsible to appellees for such loss, and for their time and exertions in rechartering the vessel. In Daughtery v. American Union Telegraph Company, 75 Ala. 168, it was decided that where a telegraph company receives, and for a valuable consideration agrees to transmit and deliver, a message, directing the sale of cotton owned by the sender, and without lawful excuse fails to deliver the message in due time, the sender may recover the actual damages sustained by the fall in the price of the cotton between the time it would have been sold if the message had not been delayed, and the time it was actually sold; with the qualification, how. ever, that so soon as the sender discovered that his message had not been forwarded it became his duty, within a reasonable time, to repeat the order or direction to sell, or to take other requisite steps to prevent further loss. " In True v. International Telegraph Company, 60 Maine, 9, plaintiffs, having received an offer of a cargo of corn at ninety cents per bushel, delivered to the telegraph company, to be sent to the person making the offer, the following message: 'Ship cargo named at ninety, if you can secure freight at ten." The message was not delivered by the company, by reason whereof plaintiffs failed to obtain the corn on the terms offered, and the price of corn and freight immediately advanced, and plaintiffs lost the profits which they might have made thereon. It was announced by the court that the measure of damages recoverable in the case was the difference between the price named in the offer and that which plaintiffs would have been obliged to pay at the same place, in order by due diligence, after notice of failure to deliver their telegram, to purchase the like quality and quantity of corn, with the same rule in relation to the freight. In Western Union Telegraph Company v. Fatman, 73 Ga. 285, a ship broker desired to furnish a vessel for the use of another person, | and, if he had done so, he would have been entitled to certain commissions for his services. He dispatched to Liverpool for a vessel, and a message requiring immediate reply, and offering a suitable vessel, was delivered to a telegraph company to be communicated to the broker; but the company failed to deliver it to him within a reasonable time, and on that account the vessel was not obtained. The broker sued the telegraph company, and recovered judgment for the amount of the commissions he would have earned if the message had been promptly delivered, and the vessel had been secured; and the judgment was affirmed by the Supreme Court of Georgia. In Parks v. Alta California Telegraph Company, 13 Cal. 422, Parks delivered a dispatch to the telegraph company, authorizing his agent to secure a debt due him from a third party by attachment. By the negligence of the company in transmitting the message, other creditors obtained the first attachment, and seized the whole of the property of the debtor. The court considered that the question of damages was one of fact, and found no difficulty in the case as far as ascertaining the amount of damages or the cause of them was concerned, and held that Parks was entitled to recover from the telegraph company the amount of his debt, if he could show that it was lost in consequence of the negligence of the company. These cases, and others to the same effect, which might be cited, impose no new or unusual burdens on telegraph companies. They simply apply old principles to new conditions. Such companies undertake to serve, and are under obligation to serve, the public generally -all who choose to employ them. Their occupation is one of a public nature. The rapidity and accuracy with which they communicate intelligence commend them to popular favor and confidence. Much of the business and of the most important affairs of life are affected and controlled by telegraph companies. Negligence and unreasonable delay in their operations would impair their usefulness, and render them a source of danger, rather than of advantage to the public, if the law afforded no remedy. The law requires that their contracts shall be performed in good faith, and that their functions shall be discharged with reasonable care, and that they shall answer in damages for losses and injuries that may be traced directly, or with reasonable certainty, to their negligence. Judgment reversed, demurrers overruled, and cause remanded. NOTE.-Railroads as carriers bound to furnish safe | R. Co. 4 West. Rep. 703, 22 Mo. App. 333. See Palmer approaches, platforms, etc. Railway companies are bound to keep in a safe condition all portions of their platforms and approaches thereto, to which the public do or would naturally resort, and all portions of their station grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage on their cars, would naturally or ordinarily be likely to go. McDonald v. Chicago & N. W. R. Co. 26 Iowa, 124; Burgess V. Great Western R. Co. 6 C. B. N. S. 923; Cross V. Lake Shore & M. S. R. Co. (Mich.) 14 West. Rep. 181; Martin v. Great Northern R. Co. 16 C. B. (81 Eng. C. L.) 179; 2 Wood, Railway Law, p. 1166; Smith, Neg. Whit. ed. 317. In its approaches to its trains, and at its station grounds, a railroad company is held to the exercise of reasonable care for the safety of its passengers, but not the utmost which human care and foresight can furnish, in providing egress from its premises. Moreland v. Boston & P. R. Corp. 1 New Eng. Rep. 909, 141 Mass. 31. The law requires of railroads to provide reasonably safe landings for its passengers, as also like means of access to and egress from its stations and premises. The law requires due regard for the safety of passengers, as well as in the location, construction and arrangement of their station buildings, platforms and means of egress. Stafford v. Hannibal & St. J. v. Pa. Co. ante, 252, 111 N. Y. 488. They are under obligations to provide reasonable invited and expected to travel on their trains. Mcaccommodations at stations for passengers who are Donald v. Chicago & N. W. R. Co. 28 Iowa, 124; Bennett v. Louisville & N. R. Co. 102 U. S. 577 (26 L. ed. 235); Imhoff v. Chicago & M. R. Co. 20 Wis. 344; Carriers are bound to provide safe alighting places, and are bound by the direction of their employés representing such places to be safe. Cincinnati, H. & L. R. Co. v. Carper, 11 West. Rep. 226, 112 Ind. 26. Degree of care required. While it is the duty of a railroad company to keep its platform and approaches safe and convenient for the ingress and egress of passengers to and from its cars, the rigor of the rule which requires it, out of considerations of public policy, to exercise the highest possible diligence for the benefit of the passenger while in the actual progress of his journey, and hold it responsible for the slightest defect in its machinery, track and appliances, is measurably relaxed with respect to its platform and approaches. Pendleton Street R. Co. v. Shires, 18 Ohio St. 255; Thompson, Carriers, 104, 209, 214 See also 7 L. R. A. 44; 14 L. R. A. 276; 19 L. R. A. 460; 32 L. R. A. 101. |