19 N.Y.S. 398 | New York Court of Common Pleas | 1892
We are not convinced by the able argument of counsel for the appellant that this judgment should be reversed. The exceptions to the charge are clearly untenable, for in his instructions to the jury the learned trial judge went to the utmost verge of the law to protect the rights of the defendant. Neither is there merit in the exceptions to evidence; but, if otherwise, they are ineffectual for lack of specific grounds of objection. Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. Rep. 457. Beyond all question the writings complained of are libelous per se, because they plainly and unequivocally impute to the plaintiff immoral and disgraceful complicity in the conduct of an “insurance swindle,” and reproach him with acts of culpable, if not criminal, misbehavior in the management of his business. Witcher v. Jones, (Com. Pl. N. Y.) 17 N. Y. Supp. 491; Morey v. Association, 123 N. Y. 207, 25 N. E. Rep. 161; Sanderson v. Caldwell, 45 N. Y. 398; White v. Nichols, 3 How. 266; Moore v. Francis, 121 N. Y. 199, 23 N. E. Rep. 1127. The publication being libelous, and confessedly made by the appellant, the defense was justification, and matter in mitigation of damages. But the issues upon these pleas were submitted to the jury, and determined adversely to the appellant, and, so far from being against the weight of evidence, the verdict, in our judgment, is supported by proof of the most convincing character.
No resource, then, is left to the appellant but to challenge the verdict as excessive in the amount of damages; and this, obviously, is the real reliance of the learned counsel. In actions for defamation, there is no legal measure of damages, (Shute v. Barrett, 7 Pick. 84; Coleman v. Southwick, 9 Johns. 52; Wadsworth v. Treat, 43 Me. 163,) but the amount which the injured party ought to recover is referred to the sound discretion of the jury, (Littlejohn v. Greeley, 13 Abb. Pr. 41; cases supra;) and the only control over their decision is in the power of the court to set aside a passionate, perverse, partial, or corrupt verdict, (Shute v. Barrett, 7 Pick. 84; Clark v. Binney, 2 Pick. 119; Trabue v. Mays, 8 Dana, 138; Bentley v. Reynolds, 1 McMul. 16; Coleman v. Southwick, 9 Johns. 52; Beehler v. Steever, 2 Whart. 326; Burt v. McBain, 29 Mich. 260; Miles v. Harrington, 8 Kan. 425; Zuckerman v. Sonnenschein, 62 Ill. 115; Snyder v. Fulton, 34 Md. 128; Lick v. Owen, 47 Cal. 252.) Hence the familiar rule that a verdict for defamation will hot be set aside because of excessive damages unless so exorbitant as to imply prejudice, partiality, mistake, or corruption on the part of the jury. Townsh. Sland. & L. (4th Ed.) § 293. The question, then, is whether this verdict of $5,000 be of such enormity as to suggest the influence with the jury of some defective intelligence or sinister motive. The unprivileged publication of matter libelous per se raises an undisputable presumption of malice,—Bromage v. Prosser, 4 Barn. & C. 247; Dakota v. Taylor, 1 Dak. 471; Hamilton v. Eno, 81 N. Y. 116; Byam v. Collins, 111 N. Y. 143, 19 N. E. Rep. 75; and this legal inference of malice goes to the jury, who consider the particular circum
But in truth the matters pleaded in mitigation, namely, probable cause and absence of malice, are not supported by the evidence. Probable cause for publication of a libel is not to be accorded to him who grasps at the calumny with avidity, and prints it without reasonable proof of its authenticity. Common justice requires that before scattering its charges broadcast the defendant should hear the plaintiff’s story, or at all events should publish the charges only upon the authority of a responsible person. But here the defendant precipitately arraigned the plaintiff at the bar of public opinion, and accused him of misappropriating the funds of his company, on the irresponsible statement of a man masquerading under an alias. Hay, more, this particular calumny was published after its contradiction by plaintiff, and on the trial was not pretended to be supported by a scintilla of evidence. “A reporter lias no right to gather stories on the street about a citizen, to his detriment, and publish them as facts in a newspaper.” McAllister v. Press Co.,
Judgment and order affirmed, with costs. All concur.