Majority
p. 449Southwick against Stevens. NEWYORK, Oct. 1813.
Headnote
hevd^acf missibie to varment'In*1' ^ plaintiff was tnd president: £j¿fcs’Mand farmers’ facts being teirof induce"raíÍyd cul”Where a witness swore that he was a had^be’en";» the office of the defendant where a paper called the Ontario Messenger was printed, and he saw it printed there, and the paper produced by the plaintiff was, he believed, printed with the types used in the defendant’s office; this was held to be prima facie evidence of the publication by the defendant.
Where the declaration stated the libel to have been published in a newspaper, called The Ontario ¿Messenger, and the paper produced was headed Ontario Messenger, it was held that this was not a 'variance, as the article the was no part of the description of the title of the paper, but only introductory to it. ,
In actions for libels and other torts, the court will not set aside a verdict on the ground of excessive damages, unless they are flagrantly outrageous and extravagant.
THIS was an action for a libel. The cause iras tried before Mr. Justice Yates, at the Albany circuit, in April, 1812. The libel set forth in the declaration was as follows, to wit, K It is with unfeigned grief we inform our readers, that Southwick, the late editor of the Albany Register, has become insane; the progress of his malady has been observed for some time past; and, at length, much to the regret of his friends, and his adversaries, it has resulted in a confirmed lunacy. The friends of the unfortunate, we understand, have confined him to his former editorial closet, and have consigned the management of his paper to a needy Irishman who wears straw in his shoes. Although this deplorable event has been expected by many for some time, yet decisive evidence of the disease having arrived at its last stage did not ■&emdash;* exist until the 24th inst. when the Albany Register exhibited such-unequivocal proofs of the insanity of its editor, that the friends
p. 450
and creditors of the establishment, we are told, shut up the poor maniac, put him into a straight jacket, shaved his head, and confined him to bread and water.”
The defendant pleaded not guilty, and gave notice that he would give in evidence at the trial, in bar of the action, “ that for a long time previous to the publication of the supposed libel mentioned in the plaintiff’s' declaration, there had been a contest between the plaintiff, as editor of the Albany Register, and the defendant, as editor of the Ontario Messenger; and that in the course of the . controversy the supposed libel was published as a part of a piece, in answer to a proclamation of the plaintiff’s, contained in the Albany Register, of the 24th of July, 1812, and that the whole of the said answer, from which the supposed libel is extracted, when taken together, is obviously ironical, importing no charge whatever against the plaintiff; it being a satirical comment upon the said proclamation of the plaintiff, which would defy the utmost gravity to remark upon it without a laugh.”
It was averred in the declaration, that before and at the time of the printing and publishing the libel, the plaintiff was editor of the newspaper called tbe Albany Register, and also president of the Mechanics’ and Farmers’ Bank in the city of Albany, and did hold the office of printer to the state of New-York.
At the trial, the plaintiff called a witness to prove, by parol, that the plaintiff held the office of printer to the state, and president of the Mechanics’ and Farmers’ Bank. The counsel for the defendant objected to the evidence, but it was admitted by the judge.
The plaintiff called a witness who testified that he was a printer by occupation, and had been at the printing-office of the defendant, at Canandaiqua, the last winter; that he saw the paper called the Ontario Messenger printed there; and that he had no doubt that the defendant was the printer and publisher. He was not particularly acquainted with the paper, but believed it to be printed with the types used in tho office of the defendant. He was at Canandaiqua once only, and staid about a week. The defendant’s counsel objected lo the reading of the paper produced on this evidence ; and, also, because the declaration described the paper containing the libel as The Ontario Messenger, and the one produced was headed Ontario Messenger. But the judge overruled these objections; and the plaintiff’s counsel read the whole of the ar-° tide from which the libel was extracted.
p. 451contended that the matter set forth as a libel was so innocent and harmless that it could not be deemed a libel, especially under the circumstances of the case, and when published of the printer of a newspaper.[4] The parol evidence was inadmissible, there being higher and better evidence in the power of the plaintiff. That the fact of the plaintiff being state printer, might have been proved by the record of his appointment to office; and that he was president of the Mechanics’ and Farmers’ Bank, might have been shown by the books of the directors of the bank, in which his election as president, must, by the act of incorporation, have been inserted.[5] The proof of the paper or publication was not sufficient. That papers, called Ontario Messenger, -were printed in the office of the defendant, and that the witness knew the types, was not proof that the defendant published the particular paper produced.[3] The witness merely stated his opinion, from having been in the defendant’s office.
The defendant’s counsel then read from the Albany Register of the 24th of July, 1812, apiece purporting to be a proclama flora. Another piece from the same paper was also read, entitled 66 The Cub,” in reply to a piece published in the Ontario Messen ger under the head of “ Apostates” The plaintiff’s counsel then read the piece referred to, headed u Apostates.”
■ The judge charged the jury that the matter set forth in the declaration held up the plaintiff in a ridiculous point of light, and in that view it was libellous; that it was, however, merely ironical, and in answer to the piece called the proclamation, which had been read from the Albany Register of the 24th of July, 1812, in which the plaintiff had assumed a most singular and unusual style, &c.; that though the matter complained of by the plaintiff was libellous, yet it was written in the course of a newspaper warfare between the two printers, and there was strong provocado» to induce the ironical matter complained of; and that, in his opinion, the jury ought to find very trifling or nominal damages for the plaintiff. The jury found a verdict for the plaintiff for siz hundred and forty dollars.
A motion was made to set aside the verdidt, and for a new trial? 1. For the misdirection of the judge; 2. Because the verdict was against law and evidence; and, 3. On the ground of excessive damages.
Parker and I. Hamilton, for the defendant,
p. 452There was a variance between the paper described in the declaration and the one produced, and the slightest variance in this respect is fatal.[4] The damages were excessive, and the court will exercise its power, in granting a new trial, where the damages are so disproportionate to the injury sustained.[5]
Foot, contra.
The decision of the judge at the trial, upon the points of law, was correct. Parol proof that the defendant was state printer, and president of the Mechanics’ Bank, was admissible. Those facts were only inducement, and introduced as collateral matter, and not as matter in issue; and the practice is not /to require such strict technical proof, as if they were facts in issue. It is every day’s practice to give parol proof, in such cases, of matters of fact, susceptible, even, of proof of the most solemn kind. The proof of the publication, by the defendant, ivas, also, prima facie, sufficient. It went to prove that the defendant had a printing-office, and that the Ontario Messenger was printed there, and that the paper produced was of the type of that office; and it was printed in the name of the defendant. The witness who testified to this was a printer, and printers know a newspaper by the type, and can generally ascertain the source of a publication from that circumstance. .The criticism on the variance between the title of the paper produced, and the paper declared on, cannot prevail, for there was no variance; the article “ the” maybe .considered as no part of the description of the title, but as merely introductory to it.[1]
The ground of the motion on account of excessiveness of damages equally fails. It was for the jury to determine how far the ridicule of the plaintiff was malevolent, and calculated to injure his feelings, or prejudice him in the eyes of the public. After the principles laid down on this question, in the case of Coleman v. Southwick, ( 9 Johns. Rep. 45 .) there does not appear any reasonable ground for interference on this point.
The motion on the part of the defendant is denied.
Motion denied,
(a) (a) See Lewis v. Few, 5 Johns. Rep. 1 .