Keller v. American Bottlers' Publishing Co.

116 ; Xavier v. Oliver, 80 App. Div. 292 , 80 N. Y. Supp. 225 . The rule in such case is analogous to one to recover damages for an assault; but to entitle such evidence to be admitted it must first appear that the libel in question is immediately provoked by the prior libel, or so closely connected with it as to be some justification for it. Richardson v. Northrup, 56 Barb. 105 . Here the publications sought to be introduced were published, many of them, several years before, and the last one, as we have seen, nearly three months before, the libel in question, and none of them were in any way connected with it. That being so, they furnished no provocation for the libel complained of, and cpuld not properly be considered in determining the damage.

So far as the articles related to persons other than the defendants, they were, obviously, inadmissible. But it is urged that the exclusion of the article referring to the Texas company, which it is claimed provoked the libel, was error. As a matter of fact the plaintiff himself had put this article in evidence as a part of his case, and if he had not' done so, and the action had been against the Texas company, it maybe that it would have been entitled to put it in evidence; but this action was not against the Texas company, and I am unable to see how the fact that the plaintiff may have libeled that company furnished any justification or provocation for the defendants to libel the plaintiff in their paper. None of the authorities cited by the appellants sustains such a rule. In Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239 , 33 N. E. 1038 , what was said in the charge, according to appellants’ own statement, was simply that, where one man attacks another in a newspaper, which prints a reply from the person attacked, and then sues the newspaper for a libel contained in the reply, the newspaper has the same defense of privilege as the individual making the reply. But that is not this case, nor has the authority any application. It is rather a novel proposition that, because the plaintiff had libeled a third person in his "paper, that fact justified or mitigated the defendants’ misconduct in libeling the plaintiff.

The court charged the jury that the plaintiff was entitled to compensatory damages—that is, the damages actually sustained—and that nothing which the defendants could show could reduce or mitigate them. There seems to be some confusion, due, doubtless, to the use in the statute of the words “mitigating” and “mitigate” (Code Civ. Proc. §§ 535, 536), as to whether the actual damage sustained by reason of a libel can be reduced or mitigated. The statute permits a defendant to prove, in an action for libel, “mitigating circumstances.” This is for the purpose of enabling the jury to determine the actual damage suffered, and not for the purpose of reducing or mitigating such actual damage, when once ascertained. The jury must consider the evidence as to mitigating circumstances with the other evidence, and after such consideration determine the actual damage sustained by the plaintiff. Once that damage has been found, it cannot be reduced or mitigated. Here there were no mitigating circumstances ■for the jury to consider, and the charge, if erroneous, was subsequently cured. For the reasons already stated," the evidence offered by the defendants to show provocation was properly excluded, and

there was no evidence of this kind before the jury. The only other defense was justification, and it has been held by this court 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.” Wuenscb v. Morning Journal Ass’n, 4 App. Div. 110 , 3S N. Y. Supp. 005; Young v. Fox, 26 App. Div. 261 , 49 N. Y. Supp. 034 .

It is true, as pointed out in Gressman v. Morning Journal Ass’n, supra, that:

“If some of the things said of the plaintiff were shown to be true, tbeir truth, if establishing misconduct, should be allowed to affect the amount of the damages, which, otherwise, the jurors would be minded to award.”

It is an inapt and incorrect expression to say actual damages may be mitigated by proving part of an article true, because whatever truth there may be in a libel does not, in a legal sense, damage the plaintiff, and it is for this reason that it is always proper for a jury to consider that portion of the article which is true, for the purpose of determining what the actual damage is. But this was made plain to the jury when the defendants’ counsel requested the court to charge:

“That even a partial justification of the alleged libelous article may be considered by the jury in mitigation of damages.”

To which the court responded:

“Yes; I so charge. In so far as the defendants have proved this article true, you may consider it.”

Inasmuch as the article contained several distinct libels, this instruction was broader and more favorable to the defendants than it should have been under the rule laid down in the Gressman Case. There the court was requested to charge that:

“In reduction of compensatory damages the jury may consider each and every statement in the article which is proved to be true.”

This request was refused, the trial judge stating that:

“Compensatory damages can never be reduced, if the defendant’s liability be fixed.”

As already indicated, the Court'of Appeals held that the jury might properly consider how far the truth of portions of a libelous article reduced the damages which otherwise would have resulted from the libel. But it also held that, since the libelous article contained at least two distinct libels, the truth of one of which would not affect the damages sustained as the result of the other, the request to charge was too broad, and was properly refused; the judgment in favor of the plaintiff being affirmed. Under this authority the instructions to the jury on the subject of damages Avere more favorable than the defendants Avere entitled to, and the charge in this respect does not present reversible error.

There are two other questions which require consideration. The court refused to charge:

“That the jury may not render a verdict against the defendants Ludorff and Schoder, unless they find that these defendants knew of the publication before it was published in the American Bottler, and took some active part in having it published therein.”

This request was too broad, and was properly refused. The court did charge that the jury must find that these defendants were the managers of the newspaper, and if they knew that the article was to be published, and took no steps to prevent its publication, having the power to do so, they should be held responsible.

It is also claimed there was no evidence connecting the defendant Ludorff with the publication, and that the motion to dismiss the complaint as to him should have been granted. The evidence is rather unsatisfactory; but it did appear that he was an officer of the defendant corporation, and had brought an action against the plaintiff, - in which he alleged, in his complaint, that he was one of the managers of the paper. This was some evidence connecting him with the publication, and, in view of the fact that he was present at the trial and did not contradict such evidence, justified the verdict of the jury against him.

I am of the opinion the judgment and- order appealed from are right, and should therefore be affirmed, with costs. All concur.