This was an action for libel in which the plaintiff had a verdict, upon which judgment was entered and from which the defendant appeals. The main question is whether the Statute of Limitations is a bar to the action. The complaint alleges that the defendant on the 12th day of October, 1896, published concerning the plaintiff the libel complained of. This action was commenced on the 22d day of April, 1899, over two years after the publication of the libel. By section 384 of the Code an action to recover damages for libel must be commenced within two years after the cause of action accrued, and the action is barred unless the time is extended by the pendency of an. action in the United States Circuit Court. The plaintiff brought an action in that court on the 21th day of June, 1898, to recover for the same libel. That action came on for trial on the 12th and 13th days of April, 1899, when the court dismissed the case for lack" of evidence showing jurisdiction in the court; subsequently, on the 21st day of April, 1899, judgment was entered dismissing the complaint, and on the day after this action was commenced. It was stated that from the time of the jmblication of the libel down to the time of the commencement of this action, the defendant was absent from the U nited States, but from the time the article was published down to the commencement of this action there was a person designated by the defendant upon whom process could be served under section 430 of the Code.
The plaintiff relies upon section 405 of the Code to take this case out of the Statute of Limitations. That section provides: “ If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.” If the action in the Circuit Court of the United *60States is an action within section 405 of the Code, then the Statute of Limitations is not a bar to this action, as the action in the Circuit Court was not terminated by a voluntary discontinuance, a dismissal of the complaint for. neglect to prosecute the action,, or a final judgment upon the merits.
By section 3333 óf the Code the word “ action,” as used in the Code, when applied to judicial proceedings, signifies “ an ordinary prosecution in a court of justice, by a party against another party, for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.”
The United States Circuit Court comes within the provisions of this section. It holds its sessions in the city of New York, is presided over by judicial officers appointed by the United States, exercises its jurisdiction within the State of New York, and in actions of this character when the parties are residents of different States has concurrent jurisdiction with the Supreme Court of the State of New-York. It had no jurisdiction in this action and it so adjudged, and for that reason the complaint was dismissed; but while the action in that court was pending it certainly was an action pending in a court of justice.
I do not think that section 1 of the Code, to which our attention has been called, limits section 405 to an action commenced in the courts therein referred to. That section provides, “the courts referred, to in this act are enumerated in the next two sections.” Section 2 enumerates the courts of record of this State, and section 3, the courts not of record. There is nothing in section 405 which limits the application of that section to an action commenced in one of the courts specified. That section does not specify a court at all or provide that the action therein. specified must be one pending in no other court than those enumerated in the Code; and -in this very chapter there are references to courts which are other than courts of the State of New York. Subdivision 7 of section 382 provides that an action upon a judgment or decree rendered in a court not of record must-be -brought within six years. It would seem to be quite clear that this would apply to courts not of record not enumerated in section 3 of the Code.
The only case cited by the appellant to sustain his contention is that of Constitution Pub. Co. v. De Laughter (95 Ga. 17). *61That case construed a statute quite different from this section of the Code and is not an authority. It seems to me, where there are two courts legally administering justice in the State of New York, having over a certain class of cases concurrent jurisdiction, that provisions of law which give a privilege to a party bringing an action in a court of justice would apply to an action in either of the courts which is located and exercises its jurisdiction within the State. Whether or not this section would apply to a court of another State, or a court only exercising jurisdiction outside of the State of New York, is a question riot necessary for us to determine.
The defendant excepted to the charge that the publication was libelous and requested “ that that be submitted to the jury.” There was no ruling upon that request and no exception which raises the question. The charge ivas correct, however, as the publication was clearly libelous per se. The defendant also claims that it was error for the court not to submit to the jury the true meaning of the publication complained of, but there does not seem to have been any request to submit the question to the jury. There were several exceptions to the admission of evidence, but none, I think, that would justify the reversal of the judgment. There was some testimony taken as to special damage caused by the libel, but after such testimony had been, received and at the end of the plaintiff’s, case, the defendant moved to strike out all the evidence which had been attempted to be given in the case in regard to special damage, upon the ground that it had not been shown that the same was not caused on account of the publication of this article. And upon that motion the court ordered stricken out all the evidence regarding special damages, with the exception of that related by the witness Hopper. The jury was not instructed that they could allow for any damages sustained in consequence of the evidence of so-called special damages, which was stricken out; and if the defendant desired to have the jury instructed not to consider it in determining their verdict, he should have made a request to that effect.
Nor do I think there was error in submitting the question of punitive damages to the jury. The court left it for the jury to say whether or not they found actual malice; and if they found actual malice, then they were justified in finding punitive or exemplary damages. At the end of the case the counsel for the defendant *62requested the court to charge that “ in order to recover punitive or exemplary damages it is necessary for the plaintiff to prove express malice, or malice in fact as. distinguished from "malice implied.” After some discussion between the counsel and the court the court charged that request. Counsel for the defendant then asked the court to charge that “ express malice consists in such publication from ill-will, or some wrongful motive implying a willingness or intent to injure, in addition to the intention to do the- unlawful act.” The court charged that request, adding, “ where the libel has been published wantonly, recklessly and without due investigation before publication.” I think this charge, taken as a whole, was a correct statement of the law, and was as favorable to the defendant as was justified.
The defendant also requested the court to charge that, as the defendant was absent from the country and had no personal knowledge of the publication, no punitive damages can be awarded against him, in the absence of proof of express malice. The court declined to charge this request. In the conduct of a modern newspaper a large part of the work in preparing it for the press must be left to agents, and where the proprietor of a large and important newspaper sees fit to absent himself from the country, leaving the publication of the newspaper to his representatives, he cannot avoid the result of their acts by disclaiming personal malice because of his absence. The question was, the intent with which the article was published by those responsible for its publication. If they were willfully, maliciously and wantonly reckless, the law allows the jury to find punitive damages; and in determining the question of the intent with which the article was published they could consider the article, the surrounding circumstances, the nature of the charge and- the actions of those responsible for its publication. The intent of those responsible for the publication left by the proprietor in charge of his newspaper is to be determined by their acts, for which the proprietor is responsible.
There was no error committed and the judgment and order should be affirmed, with costs.
Hatch, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide, event.