DISSENTING OPINION OP
GALBRAITH, J.I am not able to agree with the opinion of the majority of the court in this case. One reason for this is that I have a settled conviction that it is more important to declare' the law of a case than to announce that the trial judge has committed error.
The plaintiff prepared his cause and tried it in the court below on the theory that the publication was libellous per se. He neither alleged nor proved special damages. The defense maintained that the charges made in the publication were true, and also that the publication was privileged.
The opinion concludes that there was no evidence before the jury from which it could have found that the charges were true and that the publication was not privileged, but refuses to express an opinion on the vital question in the case, i. e., whether or not the publication was libellous per se, although the court below instructed the jury that it was.
If the plaintiff’s theory of the law of the case is not correct his exceptions should be overruled. If the publication is not libellous per se damages are not presumed but must be alleged and proved. There was no proof of actual damages and a judgment in his favor could not be maintained under any other view of the law than that maintained by the plaintiff. If there was *458a failure of proof on tire part of the plaintiff he was not prejudiced by any of the alleged errors and has no' just cause to complain. So it seems to me that the court should have determined and announced the law of this case, i. e., whether or not the instruction of the court that the publication was libellous per se was correct.
The opinion determines that the «trial court erred in refusing to instruct the jury that there was no evidence from which it could find that the alleged libellous words were true and that the court again erred in admitting and refusing to strike out the testimony of J. E. Wilson — evidence from which the jury might have found one of the charges to be true, i. e., that the plaintiff was engaged in the business of “handling dope.” I am inclined to agree with the majority that the testimony of Wilson was improperly admitted and should have been stricken out but it was before the jury when the instruction was asked and while it was there the refusal to give the instruction was not error. The court below erred in one of these1 instances but clearly did not err in both of them.
Again the opinion proceeds: “The court below in its charge to the jury evidently proceeded on the theory that the jury might properly find that the publication in question was privileged and that the action could not be maintained without proof of actual malice,” and this conclusion is announced in the face of the following words found in the charge of the court below to the jury, to-wit, “You must bear in mind that editors and publishers of newspapers are not privileged to publish libel in the dissemination of news, but are liable for libellous publications like other persons without proof of express malice or actual ill-will against the person libelled.” I submit that this instruction is good law and is fully sustained by the leading case of Times Pub. Co. v. Carlisle, 94 Fed., 762, and does not warrant the conclusion above quoted from the majority of this court.
It thus appears to me that the real question of law presented by the record in this case remains unsettled and undetermined by the opinion.