69 N.Y.S. 298 | N.Y. App. Div. | 1901
The rules which were issued by the defendant to* his employés, and which were put in evidence over the plaintiff’s objection, appertain to the question whether the libelous article was or was not published carelessly, and without a proper inquiry as to its truth; and they are pertinent to that question only. They have no-bearing whatever upon the question of malice. The absence of the defendant from the country, and his ignorance of the publication, might bear on the question of his personal malice, but the promulgation of the rules does not touch or refer to it. It was held in Morgan v. Bennett, 44 App. Div. 323, 60 N. Y. Supp. 619, and in McMahon v. Same, 31 App. Div. 16, 52 N. Y. Supp. 390, that the publication of such rules in no way excused the defendant from either compensatory or punitive damages in case his employés do not observe them; that,, notwithstanding such rules, the defendant is liable for compensatory damages, if, in fact, the article published is a libel; and that he is-
Was it a harmful error? We cannot say that it was not. The jury are nowhere instructed as to any particular application of this-evidence. It was offered generally in the case, and received without any limitation. We cannot say but that the0 jury understood that the promulgation of such rules excused the defendant, although those in charge of his paper published this -article concerning the plaintiff without malice, but without any reasonable inquiry as to its truth. There was evidence before them upon that subject, and it may have been that their verdict was made up on that theory.
For this reason the judgment must be reversed, and a new trial granted, with costs to appellant to abide the event.
EDWARDS, J., concurs. SMITH, J., concurs in result. KELLOGG, J., dissents.