76 N.Y.S. 429 | N.Y. App. Div. | 1902
Lead Opinion
When this action was. before this court on a former appeal (66 App. Div. 569) it was held that the question as to whether the arti
The plaintiff proved the incorporation of the defendant on Fovember 4, 1882. The certificate stated that the object for which the corporation was formed was “ to print, publish, issue and sell in the City and State of Few York and elsewhere, a certain newspaper, daily, weekly, semi-weekly or either, or all of them, under the name of The Morning Journal.” The plaintiff then called Mr. Carvalho, who testified that he was the president and treasurer of the defendant corporation ; that the name of the newspaper was The Morning Journal in 1896, and, was changed to The New YorTc Journal on the 1st day of January, 1897, and that this was the same paper that had been previously published and owned by the defendant association ; that the publication office of this journal was in the Tribune building, in the city of Few York; that all the funds which were received from the sale of the' newspaper with the receipts for all kinds of business, were deposited with Wells, Fargo & Co. to the credit of The New YorTc Journals and the checks that were drawn were signed The New YorTc Journal, with the addition of the signature of the treasurer; that there were no words used, such as. “ Star Company ” or “Few York Star Company,” on any checks or pass book; that from April, 1897, to the' present time the paper has been published under the name of the New YorTc Journal and AdwerUser, and not under the name of the person or corporation who managed it or owned it; that when it was owned by the “'Morning Journal Association ” (the defendant) the same headlines were used as at present except the addition in small type of “ and Advertiser ; ” that the defendant corporation was still engaged in the business of publishing newspapers; that now the Star Company receives ■ all of the funds from the publication of these newspapers; that it also does work for the defendant in publishing Das Morgen Jov/rnal,. a.
On behalf of the defendant the minutes of a meeting of the trustees of the Star Company held on April 1, 1897, were proved at which it was resolved that the Star Company purchase from the Morning Journal Association the newspaper The New York Journal and all property and assets of the Morning Journal Association, except a newspaper known as Das Morgen Journal for the consideration of one dollar and other valuable consideration; also the minutes of a meeting of the Star Company held on April 3, 1897, at which it was resolved to remove the principal office of the
The facts in relation to the publication of this paper and which seem to be established without substantial contradiction are that, prior to April 1, 1897, the newspaper The New York Journal was published by the defendant corporation; that at that time a formal transfer of the newspaper and all property used in the publication of the newspaper was made to the Star Company for the sum of one dollar and other valuable consideration; that thereupon the Star Company by its directors assumed the publication of this newspaper ; that prior to that time the proceeds of the publication of the paper had been deposited with the banking house to the credit of an account headed “ The New York Journal; ” that subsequent to the publication the same disposition was' made of the money that was received from the proceeds of the publication of the paper; that both companies were managed by the same persons; that there was a notice to the banking house in which the' deposits were made that thereafter the money deposited would belong to the Star Company ; but there was no change made in the manner of doing business, the name of the account in which the funds were kept or the form of the checks used to withdraw moneys from this account; that the defendant corporation still continued in business, publishing the German edition of the newspaper, which was printed upon the same presses that printed the morning paper known as the New York Journal and Advertiser, and the proceeds from the sale of both newspapers were received and deposited in the banking house before mentioned to the credit of The New York Journal. The testimony as to this transfer was all furnished by officers of either the defendant company or the Star Company, who were more or -less interested in the publication either as stockholders or directors
The evidence shows that the connection between these two corporations was very close, both being controlled by the same persons, and the question is, not whether the Star Company would also have been liable for the publication of this libel, not whether the Star Company had a part interest in or was the principal engaged in publishing the newspaper, but whether, from the whole evidence, it can be said that this defendant corporation was so connected with the publication as to be responsible therefor. To sustain an action for libel against a corporation or individual it is not necessary to ' find that the defendant was the principal actor in the publication complained of. All connected with the publication of a libel are responsible as joint tort feasors for the damage caused thereby. It is conceded that prior to April 1,1897, the defendant was the owner and publisher of this newspaper. It has shown certain formal transfers of the newspaper and the property and assets of the corporation used in its publication to the Star Company, but it also appears that the publication went on as before without notice of its change^ and no formal acts are established which show that thereafter this defendant corporation took no part in the publication of this newspaper. We may assume the fact to be proven that by this transfer there was a formal legal transfer of the property interest in the. newspaper and in the property used to produce it, and in the lease of the buildings used for its publication, b.ut the question comes down to this : Was the evidence of a change in publication so conclusive that no question of fact was presented for the jury to determine as to whether this defendant still continued to take such a part in the publication of the newspaper so that it was liable for the tortious acts of those who have control of its publication ? As before, stated, the ownership and publication of this newspaper prior to April 1, 1897, was conceded. Did the act of this corporation in transferring the formal title of the newspaper to the Star Company conclusively establish that thereafter the defendant corporation had no part or control of the management of the paper ?
I am inclined to think that, considering the character of the evi
There is no real hardship upon the defendant in this determination. A satisfaction of this judgment discharged all of those united with it in the publication, and the right' of the plaintiff to recover for the libel may as well be determined in this action as in one brought against the Star Company. While the burden is on the plaintiff to prove that the defendant was engaged in tins publication, so as to be liable for the libel, the question whether from all the evidence there was such a participation in the publication as justified a recovery was one, I think, for the jury, and we would not be justified in disturbing its verdict upon that ground; and this was the view taken by this court upon the former appeal.
The defendant also insists that the complaint should have been dismissed, because it was not alleged that the article complained of was understood by the friends and acquaintances of the plaintiff and
The defendant also excepted to the refusal of the court to. charge that no punitive damages could be awarded in this case. We think the court was right in this refusal, as the testimony was sufficient to show that the defendant published this charge without investigation of any kind, and subsequently, at the request of the plaintiff, refused
There were also several exceptions to rulings upon questions of ■evidence, but we do not think that any error was committed that would justify a reversal of the judgment. The testimony that an application was made to the responsible editor of the paper to retract this publication was evidence bearing upon the question of ■express malice, and was, I think, competent. When there has been a publication libelous per se, and a request to the publisher of the libel to retract, which is refused, that refusal is competent evidence as to 'the feeling and intention of the publisher with which the libel was published. There could be no question about this if the defendant was an individual; and as corporations engaged in the publication ■of newspapers can act only through their officers or agents, the corporation is liable for the acts of its responsible officers or agents upon whom it has conferred the power to determine what should be published ; and their acts in relation to the publication of the newspaper are certainly competent evidence in relation to the publication and the motives with which it was made.
Nor was it error to exclude the summons and complaint in an action brought by this plaintiff against the Star Company ; for, as before pointed out, the fact that the Star Company was also concerned in the publication of this paper would not relieve this defendant from liability; and the allegation that the Star Company was the owner and proprietor of and published this newspaper was not at all inconsistent with the facts upon which this plaintiff claimed to charge the defendant as jointly engaged in such publication.
There is one other question which is presented upon an exception to the charge, to which attention should be called. The court, after calling the attention of the jury to tho evidence upon the question as to whether this article did as a fact refer to the plaintiff, said : “ Now, you have heard testimony as to all those facts, and I think, comparing the testimony which you have heard with the description of the person who is said to have beaten his wife as charged in the libel, that you will have no difficulty in arriving at a conclusion
We think no error was here committed which calls for a reversal of the judgment.: The statement of the court in the charge was unobjectionable. He simply told the jury that he thought they would have no difficulty in arriving at a determination of the question of fact presented. There was no intimation that the jury should find either way upon the question ; but they were expressly instructed that if they should find that the article did not refer to the plaintiff, the defendant was entitled to a verdict. It was this expression of the court in the charge to which the defendant referred when he excepted, and the characterization of'the charge by counsel for the defendant is not to be considered in determining the validity of this exception to the charge as actually delivered. The assent of the court to the statement of counsel as to what had been said cannot
Our conclusion, therefore, is that the judgment and order should be affirmed, ■with costs.
O’Brien and McLaughlin, JJ., concurred; Patterson, J., concurred in result; Laughlin, J., dissented.
Dissenting Opinion
I dissent on the ground that the statement made to the jury by the court in the charge, “I think yon will have no difficulty in arriving at the fact Mr. Stokes was the person libeled,” was prejudicial error. The plaintiff was not named in the libel, and it was a fair question of fact as to whether it would be understood as referring to him. It should have been left to the jury; but I think the intimation of the court’s opinion was so clear and strong that the question was virtually taken from the' jury, and the exception thereto was well founded.
Judgment and order affirmed, with costs.