(after stating the facts as above). [ 1 ] It is contended that material errors occurred at the trial, through misconception of the nature of the action. It is said that the court in effect instructed the jury that the gist of the action is the conspiracy, instead) of the damage sustained by reason o.f it. But the charge does not admit of the interpretation that it was necessary to prove the conspiracy only. The resulting damages alleged were as
[2] Another error assigned grew out of what was called in the charge a “secondary or subsidiary conspiracy,” which it is said was not alleged. This complaint is based on certain testimony of plaintiff concerning a notice fastened to a thorn switch and placed! op the porch of his home on the night of June 17, 1909, by two persons, one of whom was recognized and is a defendant. The notice was addressed to plaintiff’s son and it charged him with “talking too' much to suit us,” stating “you have got to leave this country or be killed. * * * W'e will give you until Monday morning to leave. * * * • But mind and don’t forget to leave by Monday morning. [Signed] Night Riders.” In the opinion denying the motion for a new trial, the learned trial judge states that “for want of a better name” he spoke of what led up to the occurrence when the thorn switch was placed on plaintiff’s premises “as a sort of subsidiary or secondary conspiracy.” We are disposed to hold that the notice and testimony concerning it were admissible under the pleadings. It seems to us that the conspiracy alleged was continuous. As pointed out in the statement, it is, in substance, alleged in the original petition that, after it
It is urged that such societies as those mentioned in- the pleadings are lawful bodies under statutes and decisions of the commonwealth of Kentucky when their object is not to- raise or lower prices of articles above or below their actual market value under normal conditions, and that such a combination cannot be a conspiracy for an unlawful purpose. The averment is that one of the objects of the societies complained of was to create a monopoly in the raising, handling, and sale of the tobacco and to enhance its price. Apart from this, however, the argument fails to observe the true relation and effect of the unlawful means alleged’and proofs adduced as to the manner of forcing men to join the societies and yield obedience to their commands. Can it be that men shall join and) carry out the behests of such societies however lawful they may be in form and declared purpose, or suffer damages to their property and even flee for their lives ? This must be the test of the argument, no matter whether the allegations and proofs be believed or not.
[3] Errors are assigned respecting certain testimony that was received during the trial. Wells, a son-in-law of plaintiff, was permitted-to testify that after February 9, 1909, he was initiated into the Night Rider organization by one of the defendants who administered to him the Night Rider oath in Robinson’s barn; again, Wells was permitted to testify that he heard another defendant say in the presence of 'others: “Of course, we are guilty of the crime of night-riding, but we are going to dleny it.” Wells was also allowed to state that he heard some of the defendants say that “they have fellows here from Christian county and they were going to stock the jury.” He was further permitted to testify, in substance, that the reason he joined the night riders was because plaintiff had told him that he had been delegated to get him into the lodge and that he (plaintiff) had) to do so or be killed. It is enough to say of all this testimony that the objections indicate no grounds upon which they were made, and they cannot be considered for that reason. Pennsylvania Co. v. Whitney, 169 Fed. 572, 575, 95 C. C. A. 70 (C. C. A. 6th Cir.); Mitchell v.
[4] Rrror is assigned to the ruling out of character evidence. Learned counsel very frankly admit that they “are in doubt as to its competency.” Judge Evans, who presided at the trial, delivered a forceful opinion in support of his ruling on this subject. After citing Connecticut Life Insurance Company v. Union Trust Co., 112 U. S. 254-255, 5 Sup. Ct. 119. 28 L. Ed. 708, and Nashua Savings Bank v. Anglo-American Co., 189 U. S. 228, 23 Sup. Ct. 517, 47 L. Ed. 782, to show that the federal courts are as to evidence bound by the rules prevailing in the states, he relied on the following decisions of the Court of Appeals of Kentucky: Givens v. Bradley, 3 Bibb, 192, 6 Am. Dec. 646; Evans v. Evans, 93 Ky. 510, 518, 20 S. W. 605; Mattingly v. Shortell, 120 Ky. 57, 58, 85 S. W. 215, 8 Ann. Cas. 1134; Morris v. Hazelwood, 1 Bush, 210. The conclusion reached by the court is in accordance with the general rule as to evidence of character offered in civil actions, and' we see no reason for departing from it in this case. Morgan v. Barnhill, 118 Fed. 24, 28, 55 C. C. A. 1 (C. C. A. 5th Cir.); Quinalty v. Temple, 176 Fed. 67, 69, 99 C. C. A. 375, 27 L. R. A. (N. S.) 1114 (C. C. A. 5th Cir.); Fahey v. Crotty, 63 Mich. 383, 388, 29 N. W. 876, 6 Am. St. Rep. 305; Stone v. Hawkeye Ins. Co., 68 Iowa, 737, 743, 28 N. W. 47, 56 Am. St. Rep. 870; Porter v. Whitlock, 142 Iowa, 66, 70, 120 N. W. 649; Thayer v. Boyle, 30 Me. 475, 480; Gebhart v. Burkett, 57 Ind. 378. 380, 26 Am. Rep. 61; Lamagdelaine v. Tremblay, 162 Mass. 339, 341, 39 N. E. 38; Black v. Epstein, 221 Mo. 286. 305, 120 S. W. 754.
[5] Another assignment of error is based upon a portion of-the charge in which the jury was instructed that it was at liberty to add to compensatory damages such punitive damages as it thought the evidence warranted. If the allegations of the original petition and the amendment were substantially proved, it is hard to see why the rule in this regard was either improperly stated or applied. Nothing is said on the subject in the original brief for defendants; and the only effort made in this regard in. the reply brief is to show that the exception and error were sufficiently taken and assigned. The doctrine of punitive or exemplary damages prevails in Kentucky. Chiles v. Drake, 2 Metc. (Ky.) 146, 153, 74 Am. Dec. 406; Slater v. Sherman, 5 Bush (Ky.) 206, 211; Jennings v. Maddox, 8 B. Mon. (Ky.) 430, 432; Doerhoefer v. Shewmaker, 97 S. W. 7, 29 Ky. Law Rep. 1193, 1197. The same doctrine is sanctioned both by the Supreme Court and this court. Scott v. Donald, 165 U. S. 58, 78, 82, 17 Sup. Ct. 265, 41 L. Ed. 632; Barry v. Edmunds, 116 U. S. 550, 564, 6 Sup. Ct. 501, 29 L. Ed. 729; Cowen v. Winters. 96 Fed. 929, 933, 37 C. C. A. 628 (C. C. A. 6th Cir.).
[6] It is insisted that the court erred in overruling defendants’ motion for a directed verdict made at the conclusion of all the evidence. The motion was properly denied. It was not the province of the court to
“If the plaintiff has produced material evidence, sufficient, if believed and uncontradicted, to warrant a verdict, no amount of contradictory evidence will authorize the trial judge to take the question of its effect and weight away from the jury.”
See, also, Erie R. Co. v. Rooney, 186 Fed. 16, 19, 108 C. C. A. 118 (C. C. A. 6th Cir.); Big Brushy Coal & Coke Co. v. Williams. 176 Fed. 529, 532, 99 C. C. A. 102 (C. C. A. 6th Cir.), and cases there cited.
Furthermore, the general charge distinctly cast the burden of weighing the evidence upon the jury exclusively. The learned trial judge studiously refrained from expressing an opinion, in fact disclaimed having any, as to the tendency or effect of the evidence. He defined the issues of fact with clearness and also arrayed and classified the witnesses and evidence on particular issues, so as to direct the jury’s attention to the conflict of testimony in specific instances; as, for example, where the testimony of plaintiff as to the oath scene in the woods was disputed by all the defendants.
We may say here that in the argument stress was laid upon this feature of the testimony. It was claimed that all the defendants had not been shown to have taken part in the unlawful acts complained of; and as an instance that plaintiff admitted that at least two men — “two other fellows” — came in and received the oath after it had been administered to him. But the natural inference to be drawn from this portion of plaintiff’s testimony.is, we think, that the “other fellows” were others than defendants. • If defendants' thought the testimony susceptible of a different construction, they should have made it clear by further examination.
The testimony took a wide range, and is replete with circumstantial features, which were peculiarly subjects for the consideration of a jury. One of these features was that during the troubles out of which this case grew a patrol was maintained in the neighborhood of plaintiff’s home at the expense of the county; and plaintiff was, under appointment of the county judge, a captain of the patrol, and his son-in-law, Wells, a patrolman. Another feature arose from testimony to the effect that plaintiff was subject to “spells,” and was accustomed to imagine causes of fright that did not exist. Since motive and intent enter so. vitally- into a question of conspiracy, the consensus of judgment of a jury as to circumstances like these, in connection with the acts charged against defendants, is entitled to serious consideration. Place v. Minster, supra, 65 N. Y. page 95.
[7] Defendants complain of a remark made by the court to the jury, after it had announced that it could not agree. It was an inquiry whether an agreement could be reached as to any of the de-
[8] It is settled that this court will not interfere with the exercise of a sound discretion in the trial court respecting is disposition of such a motion. Big Brushy Coal & Coke Co. v. Williams, supra, 176 Fed. page 531, 99 C. C. A. 102; Pugh v. Bluff City Excursion Co., 177 Fed. 400, 101 C. C. A. 403 (C. C. A. 6th Cir.).
The judgment must be affirmed, with costs.