57 N.Y.S. 303 | N.Y. App. Div. | 1899
The facts which may be proved in mitigation of damages are stated by text writers to be “ any circumstances which tend to disprove malice, and do not tend to prove the truth of the charge; ”' or, differently expressed, “ mitigating circumstances are those which disprove malice.” It is well nigh impossible to reconcile the authorities, for though cases can be found in support of the rule thus broadly stated (Bush v. Prosser, 11 N. Y. 347; Gorton v. Keeler, 51 Barb. 481), there are others which apparently- qualify it. Thus, Witcher v. Jones (17 N. Y. Supp. 491) and Cameron v. Tribune Association (7 id. 739) are in seeming conflict with Morey v. The Morning Journal Assn. (123 N. Y. 207), and Van Alstyne v. Rochester Printing Co. (25 App. Div. 282), and Palmer v. N. Y. News Pub. Co. (31 id. 210). In Cameron v. Tribune Assn. (supra) it was said : “ The facts and circumstances surrounding the sending of the condensed dispatch were very pertinent upon the question of malice.” Yet in the Morey Case (supra), decided subsequently, where the defendant offered to show that the article was telegraphed to it by a correspondent, and that the latter had heard that a breach of promise suit had been commenced against the plaintiff, and also to show how and where he obtained his information, the ruling excluding such evidence was held to be no error. As said in the opinion of the-Court of Appeals : “ This evidence was excluded by the trial judge, because the defendant did not have any information on the subject, at the time of the publication. It published the libelous article.
The rule thus stated was followed in the case of Van Alstyne (supra), which was decided by the Appellate Division in the fourth department in February, 1898, and is referred to with approval in the Palmer Case (supra), decided by this department in June, 1898, as shown by the following extract from the opinion: “ The defendant made it appear that the information upon which it relied for the publication of this libel was given to it by the United Press Association, which seems to be an organization of several newspapers for the pui’pose of collecting and disseminating to its members the current news. The claim of the defendant in this regard was that it had employed the United Press for this purpose for a considerable length of time and that it placed confidence in the accuracy of the information which it received. The publisher of the paper testified that this was a news item, and that he did not consider it necessary in general to verify such items as he received from the United Press-because he considered that a reliable source of information. The article was, therefore, published as it was claimed upon the authority of the United Press, without any attempt by the publisher of the newspaper or any one engaged in publishing it to verify its truth. The fact that it was published in reliance upon the statement of some other person is not a defense. (Morey v. Morning Journal, 123 N. Y. 207.) But the defendant introduced the evidence for the purpose of enabling it to say that it received this scandalous article from a reliable source and, therefore, was not liable for punitive damages, although it made no effort to ascertain its truth before giving it -to the world.”
If 'the doctrine promulgated in the Morey case is to be followed to its logical end, then it is evident that the facts here sought to be set up in mitigation would not be available, because the evidence in support of them would necessarily have to be excluded. We think,
The question is, what facts and circumstances may be shown in mitigation of punitive damages % We find expressions of judges which go to the extent of holding that the facts and circumstances tending to show the source from which the information was received, and the manner of its publication, are for the jury to consider, “either in mitigation or aggravation of damages.” (Edwards v. Kansas City Times Co., 32 Fed. Rep. 813.) Such latitude, however, is not permitted under our system of practice or our decisions, which require that the facts and circumstances should constitute a partial defense and be competent and relevant upon the question of mitigation, and to that end should include such facts and circumstances as are directed to showing good faith in the publication. These will necessarily vary with each case, dependent upon whether the defamatory matter included a charge which on its face was improbable or unnatural, as distinguished from one that is of every day occurrence.
Gan it be said that such good faith is evidenced by a statement that the article came from a reputable news agency, whose reporter was a competent and experienced man % This excuse or reason for publishing, standing alone, can hardly be said to include the idea that it was published in good faith, because it might well happen with reference to a statement so received that it was known by the receiver to be false, and the subsequent publication would be in no manner justified by the statement that it was received from a reliable source.
We think, therefore, that it was essential, as tending to show good faith in publishing, to aver that the publisher had reason to and did believe that the information so received was true. A newspaper which published an improbable story without investigation, from
The portion of the judgment appealed from, therefore, is reversed, with costs, and the demurrer sustained, with costs, but with leave to the defendant to answer over on payment of costs in this court and in the court below.
Van Brunt, P. J., Barrett, Rumset and Ingraham, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to answer over on payment of costs in this ¿court and in the court below.