49 N.Y.S. 634 | N.Y. App. Div. | 1898
Lead Opinion
Although many grounds are urged for a reversal of the judgment, the principal ones are (1) that the justification pleaded by the defendant was proved in every essential particular; (2) that the court erred in charging the jury that the defendant’s publication was libelous per se; and (3) that the court erred in its charge to the jury upon the subject of punitive damages.
It was made to appear that many of the incidents related in the article actually occurred. It is conceded that on the day in question the plaintiff, with a young man, named Richardt, left Montclair, N. J., some time about 5 o’clock in the afternoon, and drove to Paterson. It would appear that the plaintiff and her husband were living apart, and that the latter, with a view of obtaining evidence against her, had induced Richardt to go to her mother’s house, where she lived, and obtain board, which he did, having been there about six weeks prior to the event chronicled, during which time, by assiduous attentions to the plaintiff’s children—among other things, by taking them out riding—he ingratiated himself with the plaintiff. On the day in question the children had been out riding with Richardt, and he returned with them to the plaintiff’s mother’s house, where they alighted; and then, as the plaintiff testified, upon Richardt’s invitation, she got into the wagon for the purpose of taking a short ride of five or ten minutes, intending to return in time for 6 o’clock supper; hut, having got her into the wagon, Richardt, claiming that the horses were unmanageable, and permitting them to run, drove to Paterson. Whether, on arriving there, he went directly to the hotel or to a stable was one of the disputed questions of fact. Prior to their arrival, at about 2 o’clock on the same afternoon, the plaintiff’s husband, with a friend, had reached the hotel, and secured two adjoining rooms, and, in anticipation of the plot which had been arranged for in reference to his wife, registered for Richardt and the plaintiff in the hotel register as “Mr. and Mrs. William Allen.” As nearly as can be determined from the evidence, it was in the neighborhood of 6 o’clock when the plaintiff and Richardt arrived at the hotel, which they entered by the main entrance, and proceeded to the restaurant, where oysters were ordered. While the plaintiff was in the restaurant, Richardt succeeded in communicating with the husband; and upon returning to the restaurant, having complained about the oysters and the service, insisted on having a bottle of wine. This, the plaintiff testified, she protested against,
It is conceded that the whole thing was an infamous plot on the part of Eichardt and the husband to place the plaintiff in a questionable position. But, as was properly stated by the trial judge, for the injury which she suffered at the hands of Eichardt and her husband the defendant was in no way responsible. His responsibility, if any, depended upon his giving, if he entered upon the subject at all, a truthful account of what occurred, and he was bound to show that the publication made and the pictures which purported to delineate the incidents narrated were true, made in good faith, and justifiable. Comparing what actually occurred with what was published, it will be noticed, if the plaintiff’s testimony is to be believed, that she and Eichardt did not arrive at the hotel at 5 p. m.; that Eichardt did not register; that they did not go to room 20, and then go down to supper, and did not return to the room at 10 o’clock, and remain for two hours, or until midnight; that there were no woman’s screams, followed by the crash of a door; neither did any door-smashing take place; and -that Eichardt, alias William Allen, did not escape from the room partly dressed, and did not leave his valise behind, for the reason that he had none. Crediting the plaintiff’s story, in these respects the article was false and untrue. In view of the verdict, we must assume with respect to-the disputed questions of fact that the jury credited the plaintiff; and, taking her version, it is certain that, whether we regard the-publication as a whole, or only that portion which was most dam-
“Undoubtedly, when the words used are unambiguous, and admit of but one sense, the question of whether or not they are libelous is one of law, which the court must decide. Equally true is it that when the words used are ambiguous in their import, or may permit in their construction, connection, or application of a doubtful or more than one interpretation, and -in some sense be defamatory, I he question whether they are such is for the jury.” See Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354.
If, therefore, taking the publications as a whole, they did not “impute some moral delinquency or some disreputable conduct to the person of whom they are spoken” (Stokes v. Stokes, 76 Hun, 316, 28 N. Y. Supp. 167); or if the language or pictures did not tend to expose the plaintiff to contempt, ridicule, hatred, or degradation of character (13 Am. & Eng. Enc. Law, 295); or if, in the minds of reasonable people, a doubt could exist as to whether the publication would have such a tendency,—then clearly it was error for the court to hold as matter of law that the article was libelous per se. Whether we take the publication as a whole, in connection with the pictures, or that portion which relates to the plaintiff going into a bedroom with a person other than her husband, and, after being there some time, going to the restaurant for the purpose of getting refreshments, and then voluntarily returning to the bedroom at 10 o’clock, and remaining there until midnight, when the door was burst open by an enraged husband, it is susceptible of but one construction, reflecting, if true, on the plaintiff’s character for delicacy and chastity and marital fidelity. Or, to use the language of the trial judge:
“The nature of the subject-matter being such as to warrant the conclusion by any person reading it that, if true, it tended to show meretricious relations between a married woman and some other person than her husband, is of itself libelous. It constitutes a libel per se, and the burden, therefore, is upon the defendant, who gave the matter publicity, to show by a fair preponderance of testimony that the statements were true.”
This brings us to the third ground upon which a reversal is sought, namely, the question of damages; the appellant at the outset strenuously insisting that the court fell into error upon the subject of malice, which it was necessary to prove in order to justify the award of punitive damages. The argument is advanced that there is no evidence tending to show that the defendant was animated by any malice or ill will towards the plaintiff, and, therefore, that exemplary damages could be awarded only upon the ground that the publication had been made recklessly, and without a due regard for the truth; and we are again presented with the contention that the account given was singularly accurate and true. As we have already disposed of this contention in discussing the subject of justification, we need not go further than to say that we cannot, in view of the conclusion reached by the jury, conclude that the narrative of what took place was either accurate or true. Whatever doubt may have been ere
“The license Avhich the press assumes to itself in the ruthless hunt for sensational news, and in the unsparing invasion of private affairs with which the public has ao rightful concern, is the disgrace of modern journalism, and one of the greatest*642 menaces to free institutions. It may well dispose juries in a proper case to give large damages, both compensatory and punitive, and with such verdicts the courts will not be readily moved to interfere.”
We have also considered the further contention that the court erred in charging the jury that evidence in mitigation goes only to exemplary damages. Upon this, as upon the question of when punitive damages can, if at all, be awarded, whatever doubts may have formerly existed with regard to the rule, it has been disposed of, so far as this court is concerned, by the case of Wuensch v. Association, 4 App. Div. 115, 38 N. Y. Supp. 607, wherein it is said:
“The rule in this class of actions is that, if the publication is not justified, the plaintiff is entitled to recover his actual or compensatory damages in any event. There can be no mitigation of this kind of damages. Mitigation extends or relates only to punitive or exemplary damages. A party, if entitled to such actual or compensatory damages, must be awarded such damages as the jury may find naturally and necessarily flow from the publication for injury to the plaintiff’s reputation and character.”
See, also, Prince v. Brooklyn Daily Eagle, 16 Misc. Rep. 188, 37 N. Y. Supp. 250; Bradley v. Cramer, 66 Wis. 303, 28 N. W. 372.
The minor points presented by the appellant may now be briefly examined. It is insisted that the learned trial judge erred in excluding the question asked of the plaintiff by the counsel for the defendant, as to whether she remembered “the issue of the New York Herald of Tuesday, October 22, 1889, containing an article headed Wayward Mrs. Young.’ ” It is urged that, the defendant having pleaded in mitigation of damages the fact that this article had been published in other newspapers, -and was published by him in good faith, he should have been permitted to show that fact; and in this connection it is claimed that, where a newspaper article charged as libelous has been taken from another paper, and republished in the belief that it is true, and after investigation of the facts, evidence of such facts may be given in mitigation of damages. Without assenting to the soundness or unsoundness of this rule, it is sufficient for our purposes to say that the question excluded did not go to the extent of showing that the article was taken fyom another newspaper, or that it was investigated; nor was there any offer to prove any such thing made upon the trial. Standing alone, the fact as to whether or not the plaintiff saw or remembered anything about the article published in the Herald was in no way relevant.
Another error assigned is that relating to the following charge:
•‘It is further admitted that before the publication of the article and pictures complained of, and the issuance to the public of the paper containing the article and pictures, the defendant caused to be widely circulated in the town of Montclair, New Jersey, where the plaintiff then resided, a certain circular or handbill, which is in evidence before you, calling the attention of the public to the paper which was about to issue, and in which appeared the article and pictures in question.”
By his answer the defendant admitted that the article and pictures in the periodical, and also the handbill or dodger, had been published and circulated. Therefore the only exception that could be taken was to the statement by the judge that it was widely circulated. His attention, however, was not called specially to such characterization, the discussion turning upon whether the publication and circulation
We are left, therefore, to consider but one additional exception, and that relates to the so-called improper remarks of the counsel for the plaintiff in persisting, both in his opening and during the course of the trial, in bringing before the jury the fact that the plaintiff’s husband and Richardt had been indicted and convicted for conspiracy in Hew Jersey. It is true that the counsel’s remarks were subject to criticism. But they were not, in this case, entirely without justification, and, as will be seen from the occurrences upon the trial, no possible injury could have resulted to the defendant therefrom. Thus, in the opening, when the statement was made that two years after the publication of the libel the husband and Richardt were indicted and convicted for the offense of conspiring and plotting against the plaintiff, the objection was made that no such issue was upon trial; and at the request of the
“And at this point I caution you not to confound the wrong which you may have gathered from the testimony that has heen offered, and from what you have heard in the assertion of counsel—the wrong that may have heen inflicted upon the plaintiff by her husband and Richardt and others by reason of the alleged plot—with the wrong charged in the complaint in this action. Do not confound the two. Whatever the liability of the defendant may be, he is not to account for or compensate the plaintiff for any wrong she has suffered by reason of the conduct of her husband or Richardt.”
From a careful consideration of all that occurred in respect to the efforts of counsel to introduce this line of testimony, and especially in view of the instructions from time to time given by the trial judge, we think that the jury could not have been misled thereby. Thus it would appear that whatever injury or prejudice might otherwise have resulted was entirely removed and cured by the fact that in each instance the court, while according to the plaintiff’s counsel his legal right to ask questions in his own way, and have them ruled upon, was careful to take away from him any benefit which he might indirectly attempt to obtain by injecting this extraneous matter into the trial. It will therefore be seen that the conduct of counsel was not such as to constitute reversible error.
Upon an examination of the record, while acceding to the suggestion that the verdict is a large one, we have been unable to find any error which would justify our interfering with the conclusion reached by the jury after a trial unusually free from exceptions, and the issues in which were presented in a full and clear manner to the jury in a charge that was eminently fair and impartial, and which accorded to the defendant all his rights.
The judgment should therefore be affirmed, with costs.
VAN BRUNT, P. J., and PATTERSON, J., concur.
Dissenting Opinion
I concur in the affirmance of this judgment, and wish merely to add a few words to the opinion of Mr. Justice O’BRIEN on the effect of the decision of Wuensch v. Association, 4 App. Div. 115, 38 N. Y. Supp. 607. I do not consider that that case settles in this court the proposition claimed for it,—that in no case can any facts be considered in mitigation
“Did what really occurred there in New Jersey on that evening warrant the account which the defendant published? If it did, then the verdict should be for the defendant; if it did not, then it will be your duty to determine what portion of the matter in question has not been shown by the defendant to be true; and then, did the portion that remains, stripped of the portion that has been shown to be true, inflict any injury or damage upon the plaintiff? Bearing in mind, now, that view of your duty, you will proceed to determine what your verdict shall be.”
Thus the court, in directing the jury as to the parts of the publication for which they were justified in avoiding compensatory damages, restricted them to that portion of the publication which was not shown to be true; and as they were limited to a finding of damage for the portion of the publication not shown to be true, the facts which were proved to be true could not be considered by the jury in mitigation of the damages caused by the part of the article not true. Counsel for the plaintiff then stated to the court:
“Tour honor has charged the jury that they may take into consideration tho evidence adduced on the part of the defendant in mitigation of damages on the question .of actual damage. Now, the rule of law is that mitigation only goes to exemplary damages. And I ask you to so charge,”—to which the court answered, “I think that is so.”
We must consider this request and remark of the court in connection with the rule as to damage already charged, and I think it amounted to but this: That the court, having restricted the jury, in the consideration of the amount that they should award as the actual damage inflicted upon the plaintiff by the libel, to that portion of the libel which was not true, then stated that the facts proved which had been introduced in mitigation of damages should not be considered by the jury as mitigating the damage actually inflicted upon the plaintiff by the portion of the publication which had been proved to be true. I do not think that that charge was error. Whether or not what the court said to the jury was erro
“The defendant may set up a justification, or he may allege facts short of a full justification, but' giving some color to the charge, by way of modification, or he may do both; and in either case he may prove the facts as they are, though they fall short of a justification; and the jury may take them into consideration for the purpose of mitigating the damages.”
This statement of the general rule has been affirmed many times by the courts of this state and by text writers upon.the subject. In none of the cases that I have examined has it been expressly held, where the point was directly before the court for adjudication, that in no case can facts be proved which could be considered by the jury in mitigating the actual damage sustained by the plaintiff in consequence of the whole publication as alleged in the compláint. If a party is entitled to prove facts short of a full justification, but which give some color to the charge, and if the jury may take such facts into consideration for the purpose of mitigating the damages, it seems to me that it must be the damages sustained in consequence of the whole publication, and for which the plaintiff would be entitled to recover, if none of the facts alleged in the libel had been true. The amount of the damage that a person libeled is entitled to recover as cojnpensation must necessarily be determined by the jury, not upon any fixed scale which can be stated as settled by a rule of law, but as compensation for the injury received in consequence of the publication of the libel taken as a whole; but that amount can be reduced if it should appear that a portion of the publication was true, for as to the injury inflicted by virtue of the publication of a true statement, no matter how injurious to the person of whom such statement is made, there cannot be a recovery. The cases in which the court has stated' that facts in mitigation of damages are evidenced only in mitigation of punitive or exemplary damages are cases in which the facts sought to be alleged were only relevant as showing the want of actual 'malice on the part of the defendant. An example is in the case of Witcher v. Jones (Com. Pl.) 5 N. Y. Supp. 917, which was affirmed by the court of appeals in 137 N. Y. 599, 33 N. E. 743. There the court says:
“In the absence of privilege, the law conclusively implies malice—i. e. want of legal justification—in the publication of an actionable libel; and, in any event,*647 the plaintiff is entitled to full compensation for his injury. But when, beyond mere indemnity, the plaintiff seeks to recover exemplary damages, the fact of actual malice in the publication becomes a relevant and material consideration. Hence, in defeat or mitigation of exemplary damages, the defendant may introduce any evidence of which the legitimate tendency is to show that he was not actuated by a wanton or malicious motive; as, for instance, that the libel was uttered negligently, or against his will, or in belief of the apparent truth of the defamatory charge.”
This decision, and others of like character, apply only to facts tending to show a want of actual malice on the part of the defendant; and it is clear that in those cases they cannot have the effect of mitigating the actual damage sustained by the plaintiff.' But in a case where a publication consists of more than one libelous statement, and the defendant is justified in offering in evidence in mitigation of damages the partial truth of the libel, and such facts are to be considered by the jury in mitigation of damages, it would seem to me to follow that such facts are provable to decrease the damage which would have been sustained by the plaintiff by the publication as a whole, if the defendant had failed to prove the truth of any of the facts alleged which constituted the libel.
I have before stated the reasons why I do not think that the instruction to the jury in this case was to the effect that the facts as proven could not be considered in mitigation of the actual damage sustained by the plaintiff in consequence of this entire publication, for the court had instructed the jury that they were not to consider upon the question of damages any part of the libel which had been proved to be true; and the other facts alleged in the justification apply only to the question of the defendant’s malice, and which necessarily were confined to the question of punitive damages.
In the rest of Mr. Justice O’BRIEN’S opinion I concur, and therefore concur in the affirmance of the judgment.
McLAUG-HLIN, J., concurs.