49 N.Y.S. 894 | N.Y. App. Div. | 1898
The action is for libel, consisting in the publication of a series of articles concerning the plaintiff in the fall of 1896, while he was a Republican candidate for member of congress. -Some of the charges were specific in character; others, general. It is insisted that the portions of the answer stricken out were pleaded in mitigation of damages with respect to the general charges made, ■and were directed to showing that the defendant acted in good faith, without malice, in the belief that its assertions concerning the plaintiff were true, and that such assertions were made with probable cause. In that connection the defendant alleged that prior to the alleged libel it was informed that the plaintiff had offered, in connection with the remission of a personal tax, to bribe a public officer, and that he had been guilty of embezzlement in taking some thirty or thirty-five thousand dollars of the moneys of an estate. These are the allegations which were stricken out.
The first thing to be noticed is that these allegations, are not directed to showing the truth of the specific charges; but it is in connection with the general charges that the plaintiff was not “a decent candidate,” and that he was not “a man who was able and clean both in his private and his public character,” etc., that the defendant claims that he should be permitted to show that, from information received from others as to the plaintiff’s conduct and character, it had probable cause for making the charges, and that they are pertinent, not only for that purpose, but a-s showing the absence of express malice. It would be an anomaly, indeed, if, when one is called to answer for what, if not true, must be regarded as a gross libel, he may be permitted, by way of mitigation, to spread upon the record other and different charges, based upon information received from others, more scandalous and more serious than the original ones. It will be noticed that nowhere in any one of the causes of action set forth in the complaint is there a word with reference to the matter stricken
By way of mitigating damages with respect to general charges, while considerable latitude in pleading must be allowed, it should not go to the extent of permitting an assault upon the plaintiff’s character by making other and different charges of information received from others, which was not verified or inquired into. Matter pleaded by way of mitigation should be such as tends to furnish some excuse for publishing the libel complained of; and as said in Hartman v. Association, 19 N. Y. Supp. 391:
“Mere belief in the truth of a publication is not sufficient to constitute the good faith on, the part of the publisher. He must be free from negligence as well as improper motives in making it. It is his duty to take all reasonable precaution to verify the truth of the statement, and to prevent untrue and injurious publications against others.”
This view is enforced by the case of Hager v. Tibbits, 2 Abb. Prac. (N. S.) 102, wherein Judge Miller says:
“I discover no case in the books which holds that a party can shelter himself against the consequences of an alleged slander, by proof that he had information*896 from another as to the fact. In principle, it never has been held a mitigation; and the enactment of the Code that both a justification and mitigating circumstances may be introduced cannot change the principle. But why should any such information mitigate the slander? Is it less injurious or offensive on that account? Does it, for that reason, inflict less of a stain upon the character and reputation of the person thus unlawfully assailed? Certainly not. Nor can it be any real valid or lawful excuse to a party circulating a slanderous and defamatory charge that he had information to that effect. The reputation of an individual is sacred; and no person should assume to propagate and set afloat a charge which impugns it, on information derived from another, without first making an inquiry, and investigating its truthfulness. Where he does so, I think he assumes the responsibility of the truth of the charge thus made, and it is no mitigation that he obtained information from another party which he believes to be true.”
We think, therefore, that the order appealed from was right, and should be affirmed, with costs. All concur.