Morrison v. Press Publishing Co. , 38 N.Y. St. Rep. 357 ( 1891 )

By the Court.—Sedgwick, Ch. J.

Several of the exceptions taken upon the trial were too general in form to be valid or to admit of review. The others will be examined.

The action was for damages for libel. The court charged that there was malice in the libel, and to this the defendant excepted. The libel contained such matter as this : that “ a woman, pointing her finger at Morrison, said, with much feeling, that man could not violate my sister’s honor, had her black-listed in the factory, and she a widow with five children.” As this was false and published without justification, it was malicious. And the malice, which is inferred from such a publication, is malice in fact, or actual malice.

There was an exception in the following words: “I except to what the court said with regard to the exemplary damages in this case, especially in view of the ■ fact, that the court held that there was no actual malice proven. The court thereupon said— “ as I define actual malice.” The part of the charge that referred to actual malice, as defined by the court, was “But as a definition of what the counsel intend to convey by actual malice, is that the defendant was not actuated by any spiteful or revengeful feelings, that he had at the time no particular feeling of ill-will towards this plaintiff when making the publication. There does not seem to be evidence in the case which would warrant that. The proof of malice in the case, and proof upon which malice rests, is the proof of. the fact of the libelous publication itself. That is, of course, evidence of malice, and as it is admitted to have been made, malice is proven.”

The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintiff’s right to recover them is in the discretion of the jury. Bergmann v. Jones, 94 N. Y. 51. In that case a charge was upheld, that in an action of libel, the plaintiff gives evidence of malice whenever he proves the falseness of the libel, that it is then a question for the jury to say whether it is of such a character as to call for punitive or exemplary damages, and that the question is not taken from them because the defendant gives evidence which tends to show that there was in fact no actual malice.

In Samuels v. Evening Mail Association, 75 N. Y. 604, there was an approval of the law as given in the dissenting opinion in the same case. 9 Hun, 288. That ease avers that upon proof of the falsity of the libel the plaintiff is entitled to exemplary damages in the discretion of the jury. But when the defendant gives evidence tending to prove the absence of actual malice, then the jury should pass upon the question as one of fact whether such malice existed in the publication. Of course the meaning of this is, that if the defendant gives evidence tending to disprove entirely the malice, which is presumed from the fact of the libel to have existed, there should be no exemplary damages. This result does not follow if the evidence tends to disprove only a part of the malice which is presumed. There will' be left that malice which the jury may think calls for exemplary damages.

In the present case, the court held that there was no actual malice in the sense of spite, or ill-will, or revenge. This, however, was not inconsistent with recklessness, an indifference to the rights of the plaintiff, an intentional disregard of the consequences of the libel. Voltz v. Blackmar, 64 N. Y. 444; Millard v. Brown, 35 Ib. 297. The doing of any act without just cause, or a wrongful act purposely done, is malicious.

As the presumed existence of malice of this kind remained, the defendant had not an exemption from liability to exemplary damages. Accordingly, the court, after charging that there could be no damages on account of defendant’s ill-will or spite to plaintiff, was correct in saying, You may give him in addition, as exemplary damages, such an amount as you deem proper and warranted by the evidence. The exception should be overruled.

The composer of the libelous article was a witness for defendant. He was allowed to testify that two other articles, that had appeared in the same newspaper that contained the libel, were composed by him. And these articles were admitted in evidence. There was no error in this. They contained nothing that was likely in itself to bias the jury against the defendant, or to distract their attention from the issue. And they did contain references to the plaintiff which showed that the witness knew him and had easy means of ascertaining from him the truth of the matters contained in the libel. As recklessness and indifference to rights were elements of malice, the court was correct in admitting the articles as relevant to the question of malice.

The testimony of witnesses Levy and Mullane, as to their knowledge of plaintiff’s reputation, were such that it was, at least, a question of fact for the jury whether they knew that reputation, and their testimony as to it was admissible.

A witness of plaintiff testified as to the good general reputation of the plaintiff before the 19th of February, 1888. On cross-examination he was allowed to testify as to his hearing at the time referred to, stories derogatory to the plaintiff. He was not allowed to speak as to stories subsequent to that time. It was not a part of a cross-examination, and the defendant had no right as a part of a defence to prove the matters inquired into.

The judgment and order are affirmed, with .costs.