80 N.Y.S. 1002 | N.Y. App. Div. | 1903
This action was brought to recover damages for the publication, in the German language, of an article relating to the.plaintiff which appeared in a newspaper published by the defendant corporation. The complaint sets out the article as published in the German language and a translation, the correctness of which does not seem to be disputed. We have no doubt but that this was a libel $er se, and that at the close of the testimony there was evidence justifying the submission of the case to the jury.
The.main point relied upon by the defendant is as to the correctness of the instruction to the jury upon the question of exemplary damages; the charge of the court upon that question was the only portion of the charge to which the defendant excepted. The court charged the jury as follows: “ It is also my duty to charge you that under the decision, of the Court of Appeals in the case of Samuels vs. The Evening Mail Association, reported in the 75th of New York, page 604, and the decisions of the courts which followed that case since that time, that if, in addition to what is necessary to a verdict for the plaintiff under the rules already laid down, you should become satisfied that the article complained of was published under circumstances showing express or actual malice in the defendant or its subordinates who caused the publication, in addition to ■such malice as is presumed by the law, you may award such additional damages beyond any injury actually shown as in your sound discretion appear reasonable. There is- no evidence in the- case showing such express or actual malice, unless it can .be inferred from the article as published, and such inference arises therefrom,
The distinction between “ implied ” and “ express ” malice is obscured by the terms used. In every system of law which regulates the relation of individuals toward each other, there are certain presumptions which arise and which are applied to controversies which come before the courts for adjudication. A “ presumption ” is defined as “ A rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular •evidence, unless and until the truth of such inference is disproved; ” and presumptions are divided into two classes. “ Conclusive presumptions are inferences which the law makes so peremptorily that it will not allow them to be overturned by any contrary proof, however strong.” “ Disputable presumptions are inferences of law which hold good until they are invalidated by proof or a stronger presumption.” (Bouv. Law. Dict.) In actions for libel, where the article published is libelous per se, the malice necessary to sustain the action is. what would here be called a “ conclusive presumption,” and in the absence of a defense the jury are bound to find a verdict which will compensate the plaintiff for the injury which he has sustained by the publication. No matter what the actual intent of the person publishing a libel peer se is, the law implies malice, and for the publication the defendant is responsible.
In certain actions of tort, of which an action for libel is one, exemplary damages are allowed in addition to those which are compensatory. “ Exemplary damages ” are defined by Bouvier to be “ Those allowed as a punishment for torts committed with fraud, actual malice, or deliberate violence or oppression.” But to justify a recovery for exemplary damages the burden is upon the party asking for such damages of proving “fraud, actual malice, or deliberate violence or oppression ; ” or, in other words, the malicious intent which the law conclusively presumes to exist in order to sustain a recovery for compensatory damages is no longer presumed,
The question then arises as to the nature of the evidence which justifies an affirmative finding of malice, and this is presented by the exception which counsel for the defendant took to the charge of the learned trial court, for the jury was told that there was no evidence in the case showing such express or actual malice, unless it could be inferred from the article as published, and that such inference arises therefrom notwithstanding all the explanations which the defendant had given. If there was no evidence except the publication of the article from which the jury could infer malice, and if the publication of the article was not evidence which would justify a finding of such malice,.then" the instruction to the jury that they might find such exemplary damages was evidently-error which required a reversal of the judgment. This question has been much discussed in England and in this country, and there are many statements in the text books and in the opinions of the courts which would seem to be hopelessly at variance- upon the subject. I shall only attempt to state the -general rule, as I understand it is established in this State,.with á reference to a few of the authorities upon which it is based.
The first case to which I shall call attention is Samuels v. Evening-Mail Association (9 Hun, 288). It was not disputed in that case but that the article complained of was libelous per se. The report states that on the trial it was shown that the libelous' article was furnished to the defendant by an established news association;
In that opinion stress seems to be laid upon the proof at the trial that the libel was false, and that it is only upon proof of its falsity that the jury are justified in finding express malice from the publication. I assume that what was intended here is, , that the falsity of the libel must appear from all the evidence in the ease. In an action for libel the charge is presumed to be false unless the defendant justifies in .his answer, in which ease the burden is on the defendant to prove the truth of the libel; but whether the burden is on the plaintiff to show affirmatively that the libel is false before he would be entitled to have the jury find exemplary damages from the fact of publication, alone, is not material in this case, as there was considerable evidence as to the truth of the facts charged; and the question as to whether there was proof sufficient to establish to the satisfaction of the jury that the libel was false before-they could find malice from the publication is not raised by any exception to the charge or requests to charge. The court charged the jury that the plaintiff was entitled to recover if theyshould find that the plea of justification had failed in one or more substantial particulars ; so in finding for the plaintiff, the jury must have found that the ptiblh
The defendant relies upon the case of Krug v. Pitass (162 N. Y. 154). In that case Samuels v. Evening Mail Association was not cited, either in the briefs of counsel, or in the opinion of the court. Judge Yann, delivering the opinion of the court, in calling attention to the distinction between express and implied malice, says: “ Implied malice, in an action for libel, consists in publishing, without justifiable cause, that which is injurious to the character of another. It is a presumption drawn by the law from the simple fact of publication. Express malice consists in such a publication from ill-will, or some wrongful motive implying a willingness or intent to injure, in addition to the intent to do the unlawful act. It requires affirmative proof beyond the act or publishing, indicating ill-feeling or such want of feeling as to impute a bad motive.- It
It must be conceded, I think, that the language here used is somewhat inconsistent with the language of Judge Davis adopted by the Court of Appeals in the Samuels case, but I think the language used by Judge Vann must be considered in reference to the question’that was then under discussion, and if the Court of Appeals had intended to overrule the Samuels case, a case which had been followed by the courts and the profession since 1878, it would have expressly called attention to the case and stated to what extent it should not be considered as a correct statement of the law. Undoubtedly, Krug v. Pitass is an authority for the. proposition that the jury were not justified in finding exemplary damages against the defendant,, based solely upon the publication of the. article then before the court, but as the court does not expressly overrule the Samuels case, I think we are bound to follow it until the Court of Appeals expressly overrules it. In Warner v. P. P. Co. (132 N. Y. 184) the Court of Appeals expressly followed the Samuels case. Parker, J., writing the opinion of the court; says: “ But testimony was adduced on the part of the defendant tending to prove the absence of actual' malice on its part towards the plaintiff, which taken in connection with the evidence of malice which the law imputed when the falsity of the libel was established, presented a question of fact whether malice existed in the publication. If found to exist, then, in their discretion, the jury could award exemplary damages.” In Bergmann v. Jones (94 N. Y. 51) Judge Miller said : “ The falsity of the libel is sufficient proof of malice to Uphold exemplary damages, and plaintiff’s right to recover them is in the discretion of the jury. When the falseness of the libel
■ Counsel for the defendant calls attention to the cases where it has been held that where a libel is privileged, proof of the falsity of the charge is not evidence of the actual malice which will justify the jury in finding a verdict for the plaintiff, and there are undoubtedly expressions of opinion in cases presenting that question which' would seem to sustain that conclusion. It is unnecessary for us to attempt to reconcile these cases. There would seem to be a distinction between the malice that must be proved to justify a jury in awarding exemplary damages, and the malice that must be proved to entitle a plaintiff to recover where the publication is privileged.
There are several exceptions to rulings on evidence which are relied upon, but there was no ruling that would justify us in reversing the judgment. The evidence admitted bearing on the relation of the plaintiff and his housekeeper subsequent to the publication was competent considering the testimony that had been produced on behalf of the defendant as to the relations between these people after they left New Jersey and came to New York.
The defendant also calls attention to a statement of the court in ruling upon a question which was subsequently withdrawn and not answered, in which the court seems to have expressed an opinion that the effect of the article had some relation to adultery. The court, however, expressly disclaimed any intention to express an opinion upon the effect of the article, stating that he was merely ruling on an objection, and that the jury were to find what the purport of the article was. There was no error here which would justify the court in interfering with the verdict. There is no other question that requires consideration, and I think the judgment and order should be affirmed, with costs.
O’Brien, McLaughlin and Hatch, JJ:. concurred ; Van Brunt, P. J., concurred in result.
Judgment and order affirmed, with costs.