73 P. 1067 | Cal. | 1902
This action was for libel. The trial resulted in a verdict for plaintiff in the sum of one thousand dollars. This appeal is from the order of the court denying defendant's motion for a new trial.
It appears that one Kapus had victimized certain residents of the city of Los Angeles, and had defrauded them out of *325 large sums of money by inducing them to purchase claims for damages against the Pacific Coast Steamship Company, which claims were wholly false and fraudulent. He represented to his victims that through his connection with Vincent, a clerk in the main office of the company, he was enabled to ascertain the fact of the allowance of these claims in advance of the claimants themselves. The time came when the men he had defrauded demanded from Kapus some satisfactory explanation as to why their money was not paid, and Kapus then produced before them a person whom he alleged to be Vincent, the clerk, and introduced him as Vincent. Thereafter Vincent disappeared, and Kapus mournfully explained that he had taken with him the seventy thousand dollars paid over by the victims. One of these victims, Dr. Pepper, came to San Francisco in pursuit of Vincent, and there learned that no such clerk was in the employ of the company.
Such, in skeleton form, was the narrative published in the San Francisco Chronicle, of which defendant is the proprietor. The article was a despatch from the paper's Los Angeles correspondent. It proceeded to narrate that Dr. Pepper, describing the elusive Vincent, was told by the steamship company that the description corresponded to that of George D. Graybill, who at one time had been a clerk in their office, but who had been discharged in 1893 or 1894. Dr. Pepper pursued his search for Graybill, and, though failing to find him, found a woman to whom Graybill was engaged to be married. By her he was informed that Graybill was in Battle Mountain, Nevada, working for the Dibbs Lumber Company, but that he would be home the next day. The article proceeds: —
"Graybill did not show up the next day. On the contrary, the woman said he had started for Utah. Dr. Pepper hunted up the man's mother and sister to get a photograph and make sure he was pursuing the right man, but when he announced his name, the girl said to her mother, `Mamma, you remember the last thing George said when he went away was, that if Dr. Pepper called and wanted to see his picture, not to show it to him.' This convinced the doctor that he was on the right track, but it took some time before he could see the photograph. He then recognized the man *326 Kapus had introduced as Vincent. Next morning the doctor attached Graybill's property near North Beach, suing him and John W. Kapus for defrauding him by means of a conspiracy. He also set the wires to work to catch Graybill, but he has not been caught. The disgruntled victims now propose action in San Francisco to have Graybill declared an insolvent debtor, and Dr. Pepper's attachment on the property dissolved. Dr. Pepper's attorneys are ready for the move. Kapus will be arrested on a criminal charge at an early date, if not by Dr. Pepper, then by some one of his victims, who are fighting both himself and Dr. Pepper."
That the language of the article was libelous per se is not disputed. It charged by implication that Graybill had impersonated Vincent, had been a co-conspirator with Kapus in his frauds, and, finally, had himself absconded with the seventy-thousand-dollar fruits of their swindle, leaving Kapus, his co-conspirator, to join his lamentations with those of the victims.
It appears that the article was handed to Mr. Washburn, the Los Angeles correspondent of the Chronicle, by Mr. Harton, a reporter of the Los Angeles Times. Dr. Pepper resided at Los Angeles, and Mr. Washburn knew where he lived, but he made no endeavor to interview him in reference to the truth or falsity of any of the statements therein contained and attributed to Dr. Pepper. In truth, he made not the slightest effort in any direction to verify it, his testimony in this regard being summed up in the following question and answer: —
"Q. In other words, when you received this story, from whomsoever you received it, you merely boiled it down without making any investigation whatever, and sent it to the Chronicle.
"A. Certainly; that is correct."
It was dispatched to the Chronicle about half-past ten on the night of August 19th. It was received by the night editor, who, because of the lateness of the hour of its arrival, took no steps to verify the truth of any of the statements therein contained, but caused it to be published in the next issue of the paper. It was under these circumstances that the publication, in effect charging Graybill with *327 being a swindler, a forger, and a double thief in the sum of seventy thousand dollars, was made. So far as Graybill was concerned, it was wholly untrue. He was at work in Nevada when he learned of the publication of the article, and, to use his language, "thought some job was being put up to libel or blackmail him." He gave up his position and his business chances and calculations and came to San Francisco. The article caused him a great deal of annoyance and worry.
Appellant contends that the verdict of one thousand dollars is excessive, but that question is not here a subject-matter for review. The statement of the case fails to specify any particulars in which it is claimed that the evidence is insufficient to justify the verdict of the jury. The only specifications found in the statement are specifications of errors of law. Where the statement contains no such specifications it must be disregarded on the hearing of the motion. (Code Civ. Proc., sec. 659, subd. 3; Kyle v. Craig,
The ground of the motion that excessive damages appear to have been given under the influence of passion or prejudice is but another form of saying that the evidence does not justify the verdict. (Harrison v. Sutter-Street Ry.Co.,
But, aside from this, if consideration be paid to the evidence, it cannot be said under the circumstances that the damages awarded were excessive. (Wilson v. Fitch,
Certain rulings of the court in admitting and rejecting testimony are complained of. Plaintiff was asked if it was not a fact that he did not bring this suit until the day the cause of action was about to outlaw. The court sustained an objection to the question. If the fact were pertinent *328
in evidence at all, the record as disclosed by the complaint in the action was the best evidence. The plaintiff was also asked why he did not bring the suit until the day before the action was about to outlaw. Objection to this was sustained. By section
Objection is made of certain instructions proposed by the defendant and refused by the court. The matter of these instructions is covered by the charge which the court actually gave, and which was very full. The court charged: "If you should find that the article in question was published wantonly, recklessly, and with an utter disregard as to whether it was true or false, then I charge you the plaintiff is entitled to recover exemplary and also compensatory damages." This instruction is complained of. Within its limitations it certainly correctly states the law. (Turton v. New York Recorder Co.,
Elsewhere the authorities are numerous that even where the proprietor is in ignorance of the publication he may be cast in punitive damages if the circumstances of and concerning the publication justify it. (Malloy v. Bennett, 15 Fed. 371; O'Brienv. Bennett,
But, apart from this, attack is made upon a detached portion of the instructions covering the point. The language here employed is general, and is but designed to state the general proposition of law as to the circumstances under which punitive damages may be permitted. Elsewhere, and repeatedly, the jury were told, in effect, that nothing but compensatory damages could be allowed unless they found from the evidence that in publishing the article, "the defendant, Mr. De Young, was actuated by malice in fact, actual or presumed."
It is contended as to other instructions that they were misleading because without the evidence in the case. This criticism is made of the instruction relating to the influence of the paper and of the defendant, and of the circulation of the paper. As to the law touching these matters it is said (Gilman v.McClatchy,
Complaint is also made of the fact that the instructions charged the jury that loss of reputation, shame, mortification, and injury to feelings are proper elements of actual damage, and it is said that "There was not only no evidence as to shame or mortification suffered by plaintiff, but none is alleged in the complaint." In the complaint it is averred that the publication inflicted upon plaintiff grievous mental suffering, in consequence of which he was greatly injured in his good name and character. Shame and mortification are elements of, and may constitute, grievous mental suffering, and are likewise elements of actual damage. Thus in Childers v. San Jose Mercury etc. Co.,
The jury was told that in estimating damages they had a right to consider the natural and necessary consequences of such publication upon the plaintiff. This instruction was strictly within the law. (Fry v. Bennett, 3 Bosw. 246.) *331
There thus appears to have been no error in the rulings or the instructions of the court, and the order appealed from is therefore affirmed.
McFarland, J., and Lorigan, J., concurred.