dissenting.
Mrs. Lenora White was killed by a cellmate in a jail in Newport News.
The plaintiff is seeking to recover damages suffered by reason of this news article, which appeared in defendant’s weekly paper under date of November 13, 1937:
“The City of Newport News was named defendant in a suit filed in United States District Court here last week in which the sum of $10,000 is sought for the death of a prisoner in the Newport News city jail. The action was brought by Mrs. Brunetta Futrell, mother and administratrix of the estate of Mrs. Lenora White, who died on September 14 last, allegedly as the result of injuries sustained while in a cell with Miss Lillian Furbüsh. * * * . Miss Furbush is awaiting action of the grand jury.”
Kewritten it again appeared in the issue of December 11, 1937. Brunetta Futrell, who was unmarried and who had had no child, felt herself aggrieved and protested. Thereupon the defendant, in its issues of December 25, 1937, January 8, 1938, and January 22, 1938, corrected its erroneous statements and apologized.
*91Plaintiff has recovered a verdict and judgment for $500. We have to determine if it is sustained by the evidence.
By way of defense it is said that the facts stated were published in good faith and were obtained from a source thought to be reliable; indeed, from the plaintiff’s counsel, H. Clay Midgett, and were written into a “release” given by him to S. A. Haynes, a reporter regularly employed.
There is in the record a release of November 3, 1937; it states that an action had been brought in the United States District Court for the Eastern District of Virginia by the administratrix of Lenora White against the city of Newport News, and that the administratrix was Miss Brunetta Futrell. This action was set down for hearing on November 22, 1937. It was dismissed for want of jurisdiction. On the same day another release was given by plaintiff’s counsel to this reporter, and thereupon the article of December 11, 1937j heretofore noted, was published. The first release bears date November 3, 1937; the first erroneous publication is of date November 13th. Since defendant’s paper is published once a week and is issued ahead of the date which it bears, the probabilities are that this publication was based upon that release. It is perfectly clear that in it there is no statement to the effect that Lenora White was the daughter of Mrs. Brunetta Futrell; on the contrary, it is definitely stated that the action in the Federal Court was instituted by Miss Brunetta Futrell, so that if any statement containing the errors complained of was contained from any release, it must have been in the release of November 22, 1937. That release is not in the record and has been either lost or destroyed.
Let us, for the sake of argument, concede that it did there appear. It is perfectly plain that the errors in the first publication can not be wiped away by information received, no matter from what source. The misinformation contained in the first report must be charged against the reporter and not against Midgett. The publication of November 22nd but continued the errors in that of November 13th.
*92Code, section 5781, declares that words which, from their usual construction and common acceptation, are construed as insults and tend to violence and breach of the peace, are actionable. Under Code, section 6240, the defendant may show, in mitigation of damages, that error had been corrected and an apology made. It may do this in mitigation of damages but not in complete satisfaction. James v. Powell, 154 Va. 96, 152 S. E. 539. The right of action remains, notwithstanding the apologies.
I can conceive of nothing better calculated to give trouble than an erroneous statement to the effect that an unmarried woman of good character had a daughter, therefore illegitimate, who died in jail. Indeed, a false statement to the effect that the daughter of a married woman died there would also probably give trouble. That the offense committed in the first publication was committed with knowledge of the facts at hand is, as we have seen, shown by the first release which describes Brunetta and Miss Brunetta.
I have no quarrel with cases which hold that a trial judge may in a perfectly plain case set aside a recovery had under the statute of insulting words; but that statute, in declaring that a demurrer will not lie to a declaration in such case, emphasizes the importance of the jury’s verdict. Here we have an unwarranted and humiliating published statement. '
Plaintiff’s damages'are augmented by constant inquiries concerning this dead daughter, and a surprised sister wrote to her from North Carolina, asking, “What about your daughter killed in jail?”, all of which was naturally mortifying.
Newspapers have all the rights which individuals have and may publish with impunity any statement which an individual might, with safety, make, but not more. In this case the offense is aggravated by the fact that this newspaper not only made no effort to find out what the facts were, as first stated, but it was put on notice as to what they were by written information then in hand. It was not actually malicious, but it was careless.
*93There are no errors relied upon in instructions given. The judgment is being set aside, not because it is excessive, but because the plaintiff is without redress. In this I can not concur.
Gregory, J., concurs in this dissent.