98 F. 925 | 2d Cir. | 1900
This is a writ of error by tbe defendant in tbe court below to review a judgment entered upon tbe verdict of a jury for tbe plaintiff in an action of libel. Tbe defendant was tbe proprietor of tbe Evening Sun newspaper, and in tbe issue of January 29,1895, published of and concerning tbe plaintiff tbe following paragraph;
“The regular grand jury to-day handed up two additional indictments for forgery against Ool. H. O. Beecher and Vincent R. Schenck, of the defunct American Casualty Insurance & Security Company.”
Tbe defendant, in its answer, admitted the publication of tbe paragraph, and pleaded several defenses in mitigation of “any damages to which tbe plaintiff might otherwise appear to be entitled.” Among these defenses the answer alleged that tbe paragraph was substantially true, and that the plaintiff, having formerly been a member of tbe firm of Beecher, Schenck & Co., composed, besides himself, of Henry B. Beecher, John W. Taylor, and William E. Midgley, which firm was tbe agent and business manager of tbe American Casualty Insurance & Security Company, was, in tbe month of January, 1895, prior to tbe publication of tbe article complained of, indicted with Beecher, Taylor, and Midgley, by tbe grand jury of tbe city and county of New York, for a misdemeanor; and that tbe misdemeanor for which tbe plaintiff was so indicted consisted in baving knowingly concurred in making and publishing a written report and statement of tbe affairs and pecuniary condition of tbe said company containing divers material statements which were then and there wholly false and untrue, as be well knew. Another defense so pleaded was that, being a member of said firm of Beecher, Schenck & Co., Beecher, with the knowledge and complicity of tbe plaintiff, did feloniously falsify certain entries or applications made in tbe application book of said Casualty Insurance & Security Company, which the plaintiff knew to be false and untrue; and two certain indictments were found
Several of the assignments of error impugn the rulings of the trial judge in respect to the sufficiency and effect of these defenses. Upon the motion of the plaintiff, he struck out the last defense. In his instructions to the jury he charged them that, if they found that de fenses set up in the answer had not been proved, and were set up in bad faith, that circumstance could be considered in aggravation of damages; and he declined to charge the contrary, as requested by the defendant. He also instructed them that the answer of the defendant might be considered by them upon the question of exemplary damages as tending to show actual malice in the publication of the paragraph. .
A defendant in an action of libel is responsible in damages for his own wrong, and not for the wrongful acts of others, who have pub lished similar libels of the plaintiff; and the libels by the others neither add to nor detract from the wrong of 1he defendant. Consequently, it cannot be material whether these oilier wrongful acts have been committed previously or subsequently to that of the defendant, unless the proposition can be maintained that the reputation of the aggrieved party, having already been shattered by the previous libels, is less susceptible of further injury, and therefore that the evidence should be admitted as tending to reduce the damages. The answer to this proposition is that it is purely hypothetical, and is without any sanction in practical experience. No one can say which of many defamations has destroyed or materially impaired a reputation; or whether, but for the last, the earlier ones would have made any grave impression upon the opinion of the public. It would be idle to submit such an inquiry to a jury. Moreover, iteration, if long enough persisted in, will at last accomplish its result; and every repetition of a slander adds to its malign effect. “It is the successive repetitions that do the work. A falsehood often repeated gets to be believed.”
None of the foregoing defenses set up in the answer of the defendant were defenses in mitigation of damages. It matters not that they were labeled as such by the pleader. None of them set up any matters having a tendency to show that the defendant had acted in good faith in publishing the paragraph, believing it to be true, or under an honest misapprehension, or inadvertently. The libel stated in terms that the plaintiff had been indicted on the day of the publication by the grand jury for forgery, and also by implication that a previous indictment had been found against him. The paragraph did not purport to charge that the plaintiff was guilty of the offense for which he had been indicted. The paragraph was libelous because it stated a fact tending to prejudice him in his good name and reputation, and to bring him into discredit. The finding of an indictment' by a grand jury implies that sufficient evidence has been collected and adduced against the accused, in the absence of explanation, to make it proper and expedient that he should be placed on trial for the offense; in other words, that his guilt has been established prima facie to the satisfaction of the grand jury. But it does not necessarily imply that the accused is guilty. The imputation that a man has been indicted is a far less venomous attack upon his character than one which asserts his guilt, and, in legal contemplation, is less injurious. The defense alleging that at some previous time the grand jury had indicted the plaintiff, jointly with his co-partners, for a misdemeanor, was a justification pro tanto of the libel. If proved, the facts would have established that, the statement by implication in the paragraph was not libelous, because it was true. If the defense alleging that the plaintiff and one of his partners had been guilty of forgery, and that his partner, on the day of publication of the libel, was indicted by the grand jury for forgery, had been supplemented by averments stating that the defendant was led by error to suppose the
It is not a defense to a libel or slander that the plaintiff has been guilty of offenses other than those imputed to him, or of offenses of a similar character; and such facts are not competent in mitigation of damages. The only tendency of such proof is to show, not that the plaintiff’s reputation is bad, but that it ought to be bad. The strictness with which this rule is applied is shown in the ancient case of Smithies v. Harrison, 1 Ld. Raym. 727, and in the modern cases of Andrews v. Van Duzer, 11 Johns. 38, and Parkhurst v. Ketchum, 6 Allen, 406. It is also settled by law that only such facts are available in mitigation of damages as were known to the defendant at the time of the publication, and which might have influenced him in making the defamatory statements. Bush v. Prosser, 11 N. Y. 347; Hatfield v. Lasher, 81 N. Y. 246. Even a plea in mitigation, setting up competent defensive facts, if interposed in bad faith, may be considered by the jury in aggravation of damages, and is not protected by the Code of Civil Procedure of this state (section 536), according to the decision of the highest court of the state. Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457. Applying these considerations, as there was evidence upon the trial sufficient to authorize the jarv to find that the defenses were not interposed in good faith, the trial judge was justified in instructing them that they might consider that circumstance in aggravation of damages.
By averring, as it did in one of the defenses of its answer, that the paragraph published was substantially true, the defendant assumed full responsibility for the libel. Such a plea, if untrue, and not maintained by the evidence, is an aggravation of the original charge, and ‘'evinces continued and express malice.” Hil. Torts, 445. The trial judge did not err in his instructions to the jury that this averment might be considered by them upon the question of actual malice. Kennedy v. Gifford, 19 Wend. 296; Williams v. Miner, 18 Conn. 464; Stearns v, Cox, 17 Ohio, 590; Baldwin v. Soule, 6 Gray, 321; Robbins v. Fletcher, 101 Mass. 115.
Another assignment of error is based upon the admission of evidence. The defendant having introduced in evidence the two indictments mentioned in its answer, — one for misdemeanor against the plaintiff and his partners, and the other for forgery against Beecher, ■ — the plaintiff was allowed, against the objection of the defendant, to show by the indorsements of the first indictment that upon the mo
This court has no power to review the amount of damages when the proper rule of damages has been given to the jury, and we therefore cannot consider the assignmént of error which alleges that the verdict was excessive.. It is proper, however, to observe that, if the defendant had contented itself with pleading and proving that it was led by the error of its reporter to suppose that the indictment found against Beecher included the plaintiff, and published the paragraph upon that supposition, the case would have been a comparatively trivial one. It was -made a serious one by injecting into it issues which were wholly foreign to the real controversy, and which could serve no purpose but to disparage the character of the plaintiff. Although the verdict was a large one, the result was undoubtedly due, in part at least, to the character of the defense.
The denial of the defendant’s motion for a new trial because of the excessiveness of damages is not subject to review here. Railroad Co. v. Winter’s Adm’r, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71; Laber v. Cooper, 7 Wall. 565, 19 L. Ed. 151; Railway Co. v. Heck, 102 U. S. 120, 26 L. Ed. 58.
The judgment' is affirmed.
