In general, a retraction is competent evidence in mitigation of damages if made before suit is brought and immediately following the libel. But, in order to be effective, a "retraction should be made as publicly as the charge, and, as far as possible, to the same persons; and the defendant should do his utmost to stop the further sale of the libel. It should be printed in type of ordinary size, and in a part of the paper where it will be seen, not hidden away among advertisements or notices to correspondents:" Am. and Eng. Ency. Law v. 13. p. 442; See also, Newell on Defam., p. 907; Odgers, Libel and Slan. *p. 299. The recent case of Turton v. N. Y. Recorder Co., 38 N. E. 1009 [N. Y. 1894], holds that a mere offer to retract cannot be shown in mitigation of damages but inclines to the position that a retraction in good faith after action brought may, under certain circumstances, be proved in mitigation. This is in conflict with Evening News Ass'n v. Tryon, 42 Mich. 549, and Bradford v. Edwards, 32 Ala. 628. Of the proposition laid down in the present case there can be no doubt whatever. On the authority of Storey v. Wallace, it holds that "the retractions were not evidence of the circumstances under which the original publication was made or of the good faith of the original publication. They were admissible, their publication having occurred before suit brought, and immediately following the libel, in mitigation of damages. The language of Storey v. Wallace, 60 Ill. 31 [1871] is: Equally untenable is the position of appellant's counsel that the judgment should be reversed, because the publication of retraction, under the circumstances, was an accord and satisfaction." "The evidence shows that they published this retraction as a simple act of justice to the plaintiff, and not as a condition of their being discharged from liability. Its publication was a matter to be considered by the jury in mitigation of damages, and they were so instructed by the court, but it had no other bearing upon the action."

The question of presumed malice is important as affecting punitive damages. The second question of retraction is related to both actual and punitive damages. The theory by which a retraction is made available to reduce actual damages

is the very practical one that the injury caused by the orignal publication is to some extent mitigated by the withdrawal of and an apology for the libel: Storey v. Wallace, 60 Ill. 56; Davis v. Marxhausen. The retraction being adınissible at all, the circumstances and conditions under which it is made are to be given to the jury, and it is for it decide to what extent the original injury to reputation has been repaired and remedied. The relation of the retraction to punitive damages raises the third question. To what extent is the retraction evidence of the motive of the publisher, that the original publication was without malice or for justifiable ends?

On whatever theory punitive, vindictive or exemplary, damages are awarded, we have seen that they are bound up in the question of motive of publication. Absence of malice, due care and justifiable end defeats them, while either proof of express malice or the legal presumption of malice, in the absence of proof to the contrary, justifies them. Without citing many cases, Bradley v. Cramer, 66 Wis. 297 [1886], and Turton v. N. Y. Recorder Co., 38 N. E. 1009 [1894], seem to decide that retraction may be accepted as evidence of malice, or its absence in the publication of the libel. It therefore becomes available in mitigation of punitive damages. In both these cases the court argues at some length on the subject, and admitting the retraction as evidence would pass it to the jury, but it is to be noted that it had already been submitted in evidence for this purpose.

The present case would seem to decide that unless connected with the question of motive, by something in the pleadings or proofs, a retraction has no bearing on the question of punitive damages. In the present case the defendants desired the court to make the inference that the publication of the retraction disclosed that the libel was a mere mistake and done in good faith. This was rejected by the court in these words: "The retractions were not evidence of the circumstances under which the original publication was made, or of the good faith of the original publication." The retractions, as such, were therefore held to be no evidence of motive whatever.

The wisdom of this is manifest. The "power of the press," so

much spoken of, but so seldom brought home to a person through personal attack, should be strictly guarded when it attempts to sully the reputation of the citizen, and the liability of the publisher to punishment should not be limited to the actual damage inflicted, which in some cases is very slight, by a simple retraction, made after the libel has received a wide circulation, and manifestly for the purpose of avoiding all exemplary or vindictive damages. To throw the burden of showing the relation between the retraction and the motive of publication on the defendant, rather than leave it to the inference of a jury, is simple justice, for if such a relation exists there should be no difficulty in establishing it. At the same time such a rule holds the threat of substantial punishment over the careless or negligent editor and publisher, it withdraws the consciousness of an easy escape from heavy damages by a mere formal retraction, and serves in a measure to protect the citizen from one of the greatest powers for mischief in evil hands which modern civilization has evolved. R. S.

May 20, 1895.

DEPARTMENT OF TORTS.

EDITOR-IN-CHIEF,

MELVILLE M. BIGELOW, Esq.

Assisted by

BENJAMIN H. LOWRY,

ALEXANDER DURBIN LAUER, PATRICK C. B. O'DONOVAN.

SUPREME COURT OF

WELCH V. MAINE CENTRAL R. R.'
MAINE. AUGUST 17, 1894.

The plaintiff was in the employ of another who was engaged by the owner upon the work of filling up and grading a piece of land situated on the side of defendant's railroad. The defendant had made an arrangemen with the owner of the land, by which the railroad company was to furnish him the dirt, with which to fill his land to the grade of the tracks and street. The dirt was loaded by the defendant's servants upon the dump-cars, owned and managed by the defendant, and conveyed from a point a short distance from the place to be graded. The business of dumping and the men, who were to engage in it, were under the direc tion of a conductor of the dumping train, who had also the authority to hire men, when, as he thought, his crew was insufficient for the work. This conductor requested the plaintiff employer's workmen, including the plaintiff, to assist in dumping the cars, and after the first day they did all the dumping. These facts were also known to the defendant's chief engineer, who had the entire charge of the work and made daily visits.

While so engaged the plaintiff attempted to dump a loaded car but because of its condition, of which he was ignorant, it tipped and fell upon him. This car had been disabled some hours before, and was improperly continued in the work, after having been set aside for repairs. EMPLOYER'S LIABILITY FOR HIS SERVANTS' NEGLIGENT INJURY OF ONE WHO HAVING AN INTEREST IN THE OPERATION, ASSISTS IN IT.

In this case it was determined that "if one who has no interest in the work to be performed, a mere bystander, voluntarily assists the servants of ancther, either with or without the latter's request, he must do so at his own risk." And, also, one who has an interest in the work 'Reported in 86 Me. 552.

to be performed, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another at their request or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other's servants. In the former class of cases the master will not be responsible. In the latter he will be." Three of a court of eight justices dissented, and, as no further opinion is given, their dissent must be taken to have gone to the general proposition, or even a proposition less broad, but sufficient for the decision of the case.

It is thought, first, that the above is stated too broadly for the authorities cited, and, perhaps, exceeded the intention of the court.

Second, even the proposition limited to the requirements of the decision cannot be sustained on principle.

Third, while some of the authorities cited do support the decision, they cannot be considered as well reasoned, as will be shown; and one of the cases cited is really against it.

In the opinion of the court to which the Chief Justice and two associates dissented, it is said: "It is insisted in the defence that it was the duty of the railroad company to dump Jose's earth out of the cars, and that they had no authority to employ Jose's men to assist them, and that Jose's men were trespassers in attempting to do so, and that being trespassers the railroad company owed them no duty, and was under no obligation to protect them against the carelessness of its servants." They followed the language first quoted, and instructions to the same effect were sustained.

As will be seen when the cases in its support are given, they all relate to injuries by a consignee assisting the servants of a consignor. In these cases the interest in the work" is really the ownership of the thing to be done; and the "work" is the limit of the business of the consignor and the beginning of that of the consignee. The considerations which would make the master liable for the negligence of a servant, injuring one receiving his own property, might be very different from those where one interested merely in the general success of the operation, assists in the business purely