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Russell v. Brooklyn Daily Eagle

168 A.D. 121 Court Second Department, Decision date 1915-05-07 English

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Charles T. Russell, Appellant, v. The Brooklyn Daily Eagle, Respondent.
Second Department,
May 7, 1915.

Headnote

Libel — libelous cartoon—justification — charge — evidence — reports of Federal Department of Agriculture.
Where the court charges that a publication consisting of a cartoon with headlines and various inscriptions is libelous, and the defendant has pleaded the truth thereof in justification, it is proper for the court to charge that it is for the jury to say whether such defense is established. They may determine, first, the scope of the cartoon, and then whether the defendant’s proof is adequate to meet the charge as thus ascertained.
Where the cartoon charged the plaintiff with selling at a dollar a pound what he called “ Miracle wheat,” which when sown would yield a crop many times greater than the yield of common wheat, it is not error to allow the defendant to put in evidence in justification duly authenticated copies of the reports of the United States Department of Agriculture relating to the subject. Such record is relevant evidence of the facts therein recorded.
Appeal by the plaintiff, Charles T. Russell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1913, denying the plaintiff’s motion for a new trial made upon the minutes.
Jesse Fuller, Jr. [J. F. Rutherford with him on the brief], for the appellant.
I. R. Oeland, for the respondent.

The action is for damages for libel. The defendant is the publisher of a daily newspaper. The plaintiff professes to be an interpreter of the Bible, and is an unordained preacher. The libel alleged was published in a cartoon. The headline of the cartoon is “ Easy Money Puzzle.” In the cartoon is shown a building on which is printed “ Onion Bank.” The figure of a man appears at the door of the building. He is represented

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as saying: “You’re wasting time, Come on in here.” In the foreground is an effigy of the plaintiff, portrayed as carrying a small package. There is this subscription: “If Pastor Russell can get a dollar a pound for Miracle wheat, what could he have got for Miracle stocks and bonds as a director in the old Union Bank ? ”

Contemporaneously with the publication, the Union Bank had defaulted in payment of deposits. Its failure was by the press attributed to the infidelity, inefficiency and unlawful acts of several of its officers. They were charged with purchasing with the depositors’ money bogus securities at fictitious prices from co-conspirators. A violent denunciatory newspaper campaign, in which the defendant prominently participated, was being waged against the officers. The plain-. tiff’s plea was that the defendant’s purpose was falsely to charge him with dishonest and fraudulent practices in disposing to his disciples, to their loss, of a grade of wheat, known as Miracle wheat, at one dollar per pound. The defendant pleaded the truth in justification. The learned trial court charged the jury that the publication was libelous, and left it to them to say whether the defense was established. The jury rendered a verdict for the defendant. The charge contained a correct exposition of the law governing the defense. The court properly left it to the jury to ascertain the pith and scope of the cartoon and then to determine whether defendant’s proofs were adequate to meet the charges as thus ascertained.

The appellant’s only assignment of error which we deem it necessary to discuss is the asserted inadmissibility of reports of the United States Department of Agriculture. Such reports were duly authenticated, and, when so authenticated, they are receivable as evidence for any proper purpose. (Code Civ. Proc. § 944; 25 U. S. Stat. at Large, 659, chap. 122; 1 Fed. Stat. Anno. 8.)

The plaintiff was the editor of a publication purporting to be devoted to a religious propaganda. In it he informed his sympathetic readers that one of his associates had accumulated Miracle wheat, which the associate was disposed to sell to the readers of that publication for one dollar a pound. The asso

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date promised to give the entire proceeds to a corporation organized and controlled by the plaintiff. In the article it was represented that the yield of Miracle wheat was ten or fifteen times as great as the yield of common wheat. The record offered in evidence tended to show, as the result of governmental experiment, that Miracle wheat was no more prolific than brands of wheat in general use and of ordinary quality. There was independent evidence that other wheats could be purchased at prices so low in comparison as to make the advertised price of Miracle wheat exorbitant.

Among the duties imposed and the powers conferred upon the Department of Agriculture are the following: To acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture in the most general and comprehensive sense of that word (U. S. R. S. § 520); to procure and preserve all information concerning agriculture which the Commissioner of Agriculture (now the Secretary) can obtain by means of books and correspondence, and by practical and scientific experiments, accurate records of which experiments shall be kept in his office, by the collection of statistics, and by any other appropriate means within his power; he shall collect new and valuable seeds and plants; shall test, by cultivation, the value of such of them as may require such tests; shall propagate such as may be worthy of propagation, and shall distribute them among agriculturists. (U. S. R. S. § 526. See, also, 31 U. S. Stat. at Large, 928, chap. 805.)

The question is, are those records relevant evidence of the facts therein recorded, upon the issue of justification?

In Evanston v. Gunn ( 99 U. S. 660 , 666), speaking of records of the Weather Bureau, the court said: “They are, as we have seen, of a public character, kept for public purposes, and so immediately before the eyes of the community that inaccuracies, if they should exist, could hardly escape exposure. They come, therefore, within the rule which admits in evidence ‘official registers or records kept by persons in public office in which • they required [sic\ either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties or under

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their personal observation.’ Taylor, Evid., sect. 1429; 1 Greenl. Evid., sect. 483. To entitle them to admission it is not necessary that a statute requires them to be kept. It is sufficient that they are kept in the discharge of a public duty. 1 Greenl. Evid., sect. 496. Nor need they be kept by a public officer himself, if the entries are made under his direction by a person authorized by him. Galt v. Galloway, 4 Pet. 332 . It is hardly necessary to refer to judicial decisions illustrating the rule. They are numerous. A few may be mentioned. De Armond v. Neasmith, 32 Mich. 231 ; Gurney v. House, 9 Gray (Mass.) 404 ; The Catherina Maria, L. R. 1 Ad. & Ec. 53; Cliquof's Champagne, 3 Wall. 114 .”

While we appreciate that there is some difference between the official record of observations of natural conditions and the official record of observations of the operation of natural conditions, influenced by human action, the distinction is not sufficient to make the rule just quoted inapplicable.

We think the court did not err in receiving the evidence.

The judgment and order should be affirmed, with costs.

Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order unanimously affirmed, with costs.

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