34 Haw. 354 | Haw. | 1937
This is an action for damages for libel consisting of two articles, one in the Japanese and the other in the English language, which appeared concurrently in the same edition of the Nippu Jiji, a daily newspaper published by the defendant corporation. The article in the Japanese language contained two charges against the plaintiff, one: That he had been suspected of being the father of the unborn child of a Japanese barber shop girl then in a pregnant condition; the other: That he was one of three police officers who had taken two Japanese waitresses to the Ala Moana "dump" and there outraged them against their will. *356 The latter charge was repeated in substance in the article printed in the English language. Neither special nor punitive damages were alleged. Upon the trial the plaintiff expressly disclaimed punitive damages. The answer was a general denial. There was a verdict for plaintiff and defendant appealed.
There are only two exceptions that merit discussion. The remainder are overruled without comment. One exception raises the question whether the court erred in instructing the jury that the damages which the law presumes from the publication of an article libelous per se are substantial damages (see instruction No. 1 given at request of plaintiff quoted in margin);1 the other, whether the defendant was entitled to an instruction that if the jury was not satisfied by a preponderance of the evidence that the plaintiff sustained or suffered any actual damage or injury the verdict should be only for a nominal sum. (See instruction No. 7 requested by defendant and refused, quoted in the margin.)2 *357
In an action of trespass on the case for libel similarly as in other actions ex delicto the plaintiff seeks redress by way of damages for the wrong committed. Also similarly the distinction between general and special damages is observed. (Childers v.Mercury P. P. Co.,
Where a charge is libelous per se general damages are presumed. (Kahanamoku v. Advertiser,
In the case of Hanson v. Krehbiel,
The charges complained of in the instant case were clearly libelous per se. (Kahanamoku v. Advertiser, supra; Rice v.Star-Bulletin,
Appellant further complains that the instruction in effect limited the jury in its consideration of damages to substantial damages only. Quite to the contrary. In addition to the instruction complained of the court also instructed the jury that the amount of damages to be *360 awarded rested in the sound discretion of the jury; that damages were compensatory and that it could take into consideration all circumstances of the case including those in mitigation, if any.
Generally speaking nominal damages are a small and trivial sum awarded for a technical injury due to a violation of some legal right and as a consequence of which some damages must be awarded to determine the right. (17 C.J., T. Damages, § 34, p. 714.) It is said that in libel and slander where it appears that "there is no ill will or malice on the part of defendant, and no special damages, actual injury, or pecuniary loss, * * * or where the evidence is such as would justify a plea of justification, an award for nominal damages only may be justified." 37 C.J., T. Libel and Slander, § 564, p. 115. For cases sustaining the text see Flint v. Clark,
The authorities are not in accord upon when a defendant guilty of the publication of language libelous per se is entitled as of right to an instruction upon nominal damages. Whether, however, in the abstract the defendant in the instant case was entitled to such instruction we deem unnecessary to decide. The sole question is whether, assuming that the defendant was entitled to an instruction upon nominal damages, the instruction requested enunciated correct principles of law. We are of the opinion that the instruction refused in its reference to the "preponderance of the evidence" incorrectly contained the implication that *361 it was incumbent upon the plaintiff to adduce direct evidence of actual damage or injury and to that extent neutralized the effect of the presumption of damages flowing from the character of the charges complained of. (Hearne v. De Young, supra.) As well said in Murray v. Galbraith supra, cited with approval inBarnett v. McClain, supra (p. 416): "Where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages, and is not required to introduce evidence of actual damages to entitle him to recover substantial damages. In such case the plaintiff need not prove special damages in order to recover substantial damages."
The peremptory form of the instruction was further objectionable. Assuming arguendo that despite the presumption of substantial damage in the absence of direct evidence of "actual damage or injury" (we take the word "injury" to be used as synonymous with "damage") a jury may, in its discretion, return a verdict for nominal damages only. It is not obliged to do so. (Flint v. Clark, supra.)
That the case went to the jury without any instruction upon nominal damages is something (assuming that the evidence warranted such an instruction) of which defendant cannot complain. In a jury case where the parties are represented by counsel in the absence of request therefor it is not incumbent upon the court to instruct the jury upon the law. (Republic ofHawaii v. Edwards,
Accordingly all the exceptions are overruled.