208 A.D. 319 | N.Y. App. Div. | 1924
Lead Opinion
The complaint charged the defendants with the publication of a newspaper containing a libelous article concerning the plaintiff. Said article was libelous per se. The answer admitted the publication of the article, but otherwise denied the allegations of the complaint, and as defenses set up the truth in justification, privilege and facts in mitigation of damage. The plaintiff introduced in evidence the article complained of, read it to the jury, and rested. Defendants’ counsel then moved to dismiss the complaint upon the ground that no cause of action had been established, which motion was denied, whereupon the defendants rested without any attempt to substantiate their defenses and counsel summed up. The court then charged the jury, in effect, that the plaintiff was entitled to compensatory damages, and also to punitive damages in such an amount as the jury might determine, unless the defendants satisfied the jury that the article was true or that they had acted without malice in publishing it.
This was an erroneous statement of the law, since, although the fact of the article being libelous perse creates a presumption of both falsity and malice, such presumption is one of law only, and exists only in so far as compensatory damages are concerned. Such presumption has served its purpose after compensatory damages have been awarded, and punitive damages cannot be allowed unless the plaintiff adduces evidence affirmatively showing that the defendant had actual malice. As was said by Mr. Justice Clarke (now presiding justice) in Carpenter v. N. Y. Evening Journal Pub. Co. (111 App. Div. 266, 269): “ It is said that upon proof of the publication of defamatory matter and of its application to the plaintiff, if it be unprivileged and libelous per se, the falsity of the article and the malice in its publication are presumed. Upon proof of publication and application the plaintiff may rest. With that proof and those presumptions he has made out his case and is entitled to such sum as the jury may give by way of compensation for the injury inflicted. * * * When a plaintiff demands damages beyond compensation something more is demanded of him than when he asks merely to be made whole. He must prove something to justify punishment by increased smart money for himself. The so-called implied malice and the implied falsity are enough to secure compensation. It seems-that having obtained that they are functus officio.”
Moreover, even assuming that there was evidence in the case to sustain a verdict for punitive damages (which there was not), it was error to instruct the jury to award such damages in some amount. Whether punitive damages shall be awarded is a matter entirely within the discretion of the jury, and not a matter of right in the plaintiff. (Crane v. Bennett, supra.)
Moreover, even assuming that there was any evidence of actual malice, there was error in charging the jury that the burden of proof was upon the defendants to establish that they acted without malice. As stated, proof of actual malice, in so far as punitive damages are concerned, is an essential part of the plaintiff’s case, upon which the burden of proof never shifts. In Cohalan v. N. Y. Press Co. (212 N. Y. 344) the correct rule of law was stated to be as follows: “ In order to justify the jury in awarding a sum beyond mere compensation, the plaintiff must establish the fact of actual malice, and must do so by a fair preponderance of evidence.”
No exceptions were taken to the charge of the court, as aforesaid, but the errors referred to are such that they go to the very foundation of the recovery. In such case it is proper, in the interest of justice, to direct a new trial. (Swift v. Poole, 172 App. Div. 10.) The respondent urges that the verdict of $25,000 might well be considered an award of compensatory damages only. In this connection, however, the expression of the Court of Appeals in the case of Cohalan v. N. Y. Press Co. (212 N. Y. 344), where the plaintiff recovered a verdict of $10,000 for the 'publication of a newspaper libel in derogation of his character and motives as a public officer, is in point. The court said: “ The case being one in which the jury had the right to award punitive damages if the libel was found to be malicious, it is obviously important that there should be no uncertainty in the statement of the law applicable to that question. Upon that subject the prevailing opinion below expressed a view that might lead to confusion if permitted to go uncorrected. It is to the effect that, even though there was error in the charge on the question of punitive damages, the judgment may be affirmed because the verdict was not so large as to indicate
It follows that the judgment and order appealed from should be reversed, the verdict set aside, and a new trial ordered, with costs to the appellants to abide the event.
Clarke, P. J., concurs; Dowling and McAvoy, JJ., dissent.
Concurrence Opinion
I concur in the opinion of Mr. Justice Finch. I am also of opinion that the judgment should be reversed upon the additional ground that there was a failure to prove upon the trial that the alleged libel was published of and concerning the plaintiff. (Hauptner v. White, 81 App. Div. 153.)
Judgment and order reversed and new trial ordered, with costs to appellants to abide the event.
