50 N.Y.S. 788 | N.Y. Sup. Ct. | 1898
Defamatory words, the occasion for the publishing of _which was quhlifiedly. privileged, are not a foundation, for an áction for libel, if published in good faith; and, such privileged ■oticasion being pleaded as a defense and shown, they are always^pre^ suméd to have been published in good.faith,, unless the contrary be shown. An action for libel may not therefore be maintained' upon them, unless the plaintiff prove that the defendant published them from malice. Such proof deprives the def endant of his privilege. The general' rule in respect of publications not 'privileged is the'contrary of this; viz., no malice need-be shown in the defendant in "order to recover the actual damage (in which term I-include
Hor do I on reflection perceive any error in the charge that if the defense of justification had not been made out, the plaintiff had the right to recover the actual damagó sustained by her without regard to the motive of the defendant in publishing it, or even though its motive was good, or even laudable. I was not unmindful of the mass of dicta seemingly to the contrary that could be cited. .But no one can fail on reflection to see how inadvertent and unauthoritative it all is; and we are not without precise authoritative discrimination against it. The bugbear and confusion of the law of libel is the statement so often found in some text books and judicial opinions, that malice in the defendant is essential tO' sustain the action. It is not so, except in the cases of defamatory matter which is qualifiedly privileged; and right there is the starting point of the confusion. It is not necessary to‘ prove that the . publication was malicious, in order to recover, except in these latter cases, where malice is essential, the same as in actions for malicious prosecution; and hence malice need not be pleaded (Root v. King, 4 Wend. p. 137; Viele v. Gray, 18 How. Pr., p. 565; Hunt v. Bennett, 19 N. Y. 173). Ho matter if there be a complete absence of malice, or even if the motive of the publisher b_e good and virtuous, he cannot escape paying the actual damage done, unless he justifies by proving the charge, any more than one wlm commits an unjustifiable battery may so escape. Even an accidental or in-advertent publication of defamatory matter is ground for an action for the actual damage done; and a lunatic is liable for the actual damage done by his libels, • the .same as for his other torts, though, he is incapable of malice, and therefore not liable to smart ^money (Odgers, 2nd ed. ch. 9; Kron v. Schoonmaker, 3 Barb. 647). In Williams v. Hays (143 N. Y. 442) it is said that “ perhaps ” a lunatic is not liable for libel or slander, but the question was not considered. Mr. Townshend says (4th ed. sec. 245), “ Insanity is a complete defense to an action for slander or libel ”, but the cases he cites for his text by no means bear it out. Mr. Odgers
The charge that the jury might find malice from a wanton or reckless disregard of the rights of the plaintiff, or of others in general, in the preparation and publication of the article (if they found such to have been the case), and give smart money damages therefor, was, it seems to me, correct. Trial lawyers and trial judges have been used to the charge for generations, that if there be no evidence of previous ill-will or spite, to show malice in the defendant, nevertheless if the jury find that the manner and circumstances of the making of the publication, or the substance of the libel itself, show a wanton or reckless disregard of the rights of the plaintiff, or of others in general, they may find such malice, (viz., the malice which satisfies the law, and enables them to give smart money), from that alone. Hothing to the contrary of this is known to trial lawyers and trial judges, unless it is to.be found in Smith v. Matthews (152 N. Y. 152). I own not to understand all that is said in that case. The actual decision of the court upholds the charge of the learned trial judge. The point in mind in charging the jury on this head in cases of libel, ’'slander and other torts, is always of the malice which will warrant the infliction of smart money, and of the proof from which such malice may be legally found by the jury. The jury are not permitted to punish the defendant by a fine for light reasons, in addition to 'requiring him to compensate the plaintiff for all the damages actually done to him.' I do not understand that the jury are to give smart money for any degree of “ recklessness or carelessness ” (Smith v. Matthews), without regard to whether it shows malice or not. On the contrary, I understand that a finding of malice is. essential, but that a wanton or reckless disregard of the rights of the plaintiff, or of others in general, in making the publication, is depravity suffi
Motion denied.