159 N.Y.S. 329 | N.Y. App. Div. | 1916
Lead Opinion
The defendant appeals from a judgment entered upon a ven diet for the plaintiff'at Trial Term in an action for libel. The learned court charged: “ In any event, the plaintiff is entitled to compensation for the injury done him by the use of those words, if you find that they were designed to be applied to him, and that he suffered injury thereby; if no proof has been offered on behalf of the defendant of the truth of those words; if you find them to be libelous, and in that connection you may consider the fact that in the answer of the defendant there are statements which have been read to you by counsel which would indicate that the defendant reiterated and repeated some, at least, of the. statements concerning the plaintiff which were contained in the charges. So much with respect to compensatory damages.” Thereafter the court discussed exemplary damages.
From this instruction the jury could understand that upon the question of compensatory damages they might consider the fact that the defendant in a plea had reiterated or had repeated the words, or some of them, which were charged as libelous. I think that the exception taken to this instruction presents error beyond our appellate disregard.
The general rule is that pleadings, so far as their statements, admissions or allegations are concerned, are in evidence and are open to comment. (White v. Smith, 46 N. Y. 418; Tisdale v. President, etc., D. & H. C. Co., 116 id. 416, cited in Holmes v. Jones, 121 id. 461, 466.) But the instruction of the court was in effect that the jury might consider the statements in the plea, not merely as bearing upon the issue, but upon the question of compensatory damages. The rule in this State permitted the defendant to interpose a plea authorized by sections 635 and 536 of the Code of Civil Procedure (See, too, Id. § 508) that might require the repetition of the offensive words or of some of them without penalty of having such repetition considered upon the question of damages, unless the plea was made in bad faith or wantonly or recklessly. The earlier rule stated in Hero v. Ruscoe (4 N. Y. 162) and in earlier or contemporaneous cases, was thus modified after, and in consideration of, the enactment of sections 164 and 165 of the Code of Procedure,
The bad faith, or the like, need not be established by affirmative proof. For the jury may be satisfied thereof from the surrounding circumstances, even up to and during the trial. The mere abandonment of the plea at trial may suffice, if such course is not consistent with an original interposition of the plea in good faith, or without wantonness or recklessness.
As the present rule permits the consideration of the plea because of the bad faith and the like that attends it, I think that the damages that may be awarded therefor are in the nature of “ smart money ” ■— exemplary damages, but not compensatory. (See Willard v. Press Pub. Co., 52 App. Div. 448, 451; Aird v. Fireman's Journal Co., 10 Daly, 254, 256; Joyce Damages, § 401, citing the New York rule.)
The defendant did not request an instruction that the repetition of the plea could-not be considered upon the question of
In view of the new trial, it is pertinent to state that the expression as to nominal damages contained in our opinionupon the first appeal (165 App. Div. 26) should not be construed as an attempted limitation upon the power of the new jury.
The questions of headlines (Code Civ. Proc. §§ 1907, 1908) and of a summary are well, thoroughly and soundly discussed in Salisbury v. Union & Advertiser Co. (45 Hun, 120) and in Lawyers’ Co-Op. Pub. Co. v. West Pub. Co. (32 App. Div. 585). It may, however, be pointed out that in Lawyers’ Co-Op. Pub. Co. v. West Pub. Co. (supra) the court, per Follett, J., after discussion of several cases, say: “Under these cases the question whether headlines are justified by the matter to which they relate is not always a question of fact for the jury.”
The judgment and order are reversed and a new trial is granted, costs to abide the event.
Thomas and Stapleton, JJ., concurred; Putnam, J., read for affirmance, with whom Mills, J., concurred.
Dissenting Opinion
I am unprepared to apply the rule in the opinion when dealing only with compensatory damages. Can we say that, if an answer repeats a libelous charge, the plaintiff may not have compensatory damages ? To require malice' or bad faith as an ingredient, I submit, would cross the line between two different
The majority opinion would make malice and bad faith essentials for merely compensatory damages, which hitherto has not been the rule. (Fulkerson v. George, 3 Abb. Pr. 75; Fry v. Bennett, 3 Bosw. 200, 246.) With the best motive, a justification may damage the plaintiff’s reputation and injure his feelings. If the justification “is interposed in good faith, under an honest belief in the truth of the matter published and with reasonable grounds for such belief, it cannot be regarded as an aggravation beyond the real injury sustained by plaintiff.” (25 Oyc. 416.) As was said by Bosworth, Oh. J.: “ The true rule is that, if the defendant fails to justify, the plaintiff is entitled to recover, at all events, his actual damages.” (Fry v. Bennett, supra.) Punitive damages may depend upon wrongful motive. But compensatory damages follow the real injury regardless of motive. The quoted text from Oyc. has been declared in Fodor v. Fuchs (79 N. J. L. 529). (See, also, Rayner v. Kinney, 14 Ohio St. 283.)
Mills, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
