Bresslin v. Star Co.

[1,2] In this case the libel was embodied in an article written in a vein of humor, or, as its author testified, written in as funny a way as he could make it. This article in substance charged the plaintiff with the crime of grand larceny in the second degree by suggesting that he had feloniously swallowed a diamond ring of the value of $90 and that he had been arrested on that charge. As already intimated, the article was not merely a fair and impartial report of a judicial proceeding. It implied that the plaintiff was guilty of the crime df grand larceny as a fact, rather than reciting the charge as an incident in a criminal proceeding then being reported. Therefore the article was not entitled to qualified privilege under the statute, as it would have been had it been merely a full, accurate, and impartial report of the criminal proceeding then pending against the plaintiff, and which at the hearing terminated in his favor. The plaintiff is a deaf mute who came from Russia only a few years ago, and he has had no education either in Russia or in this country. He is married and has a child. In its defense the defendant not only' republished the libelous charge of grand larceny by alleging and attempting to prove the truth of the libel, but it charged in its answer that the plaintiff when arrested was carrying a concealed weapon upon his person; the sole basis for such gratuitous, irrelevant, and prejudicial charge being that the plaintiff had purchased a small toy or cap pistol as a Christmas present for his child. Notwithstanding the infirmity of the plaintiff, by reason whereof he was at a great disadvantage in the magistrate’s court, he was discharged; and although the present defendant bent its energies strenuously to prove his guilt upon the trial of the case at bar, and although the court would not permit him to testify on his own behalf on account of this infirmity, the plaintiff has again been exonerated from the charge and has been awarded a large verdict by the jury for the libel. The defendant now claims that this verdict is excessive and should be set aside.

- Had the defendant not sought to establish the truth of the libel upon this trial by pleading justification and giving evidence thereon, there would be more reason for setting the verdict aside as one arrived at in anger or prejudice. Indeed, it is highly probable that, had the charge been retracted rather than deliberately repeated and maintained by the defendant, the jury itself would have awarded far less damages than it gave; because the jurors in this case seemed more than ordinarily discriminating and intelligent, and they were instructed that the question of good faith in the attempted justification was for them to consider. Marx v. Press Publishing Co., 134 N. Y. 561 , 31 N. E. 918 .

[3] In view of these .considerations, should the court interfere with this verdict? I think not. It is well-settled law, founded upon reason and good sense, that the question of the proper damages to be assessed

In Sutherland on Damages, § 1206, it is stated:

“There Is no legal measure of damages in actions for these wrongs. The amount which the injured party ought to recover is referred to the sound discretion of the jury. The damages are intended to repair the injury done; and all that the law can determine in a given case is what facts proved in a given case may be taken into account, and what are fair considerations to influence the jurors’ judgments. They are to consider the plaintiff’s injured feelings and tarnished reputation, taking into account the nature of the imputation, the nature of its publicity, the character, condition, and influence of the parties.” (See cases cited in note to the text.)

In Townshend on Slander and Libel (4th Ed.) p. 524, the author says:

“As the amount of damages in an action for slander or libel is always a subject for the exercise of the sound discretion of the jury, who may give more or less according to their conclusions from the whole case respecting the motives of the publisher, a verdict in such an action will not be set aside for excessive damages unless there is some suspicion of unfair dealing, or ‘unless the case be such as to furnish evidence of prejudice, partiality or corruption on the part of the jury.’ The case must be very gross, and the damages enormous, to justify ordering a new trial on a question of damages.” (See cases cited in note with statement of amounts awarded in various cases.)

In the able work of the late Judge-Jaggard, “Handbook of the Law of Torts,” the subject of excessive damages is discussed as follows (volume 1, p. 400):

“In cases in which from the nature of things there is no fixed standard of compensation, a court will set aside a verdict which is so excessive that it cannot be accounted for on any other ground than that the jury was misled by passion, prejudice, or ignorance, or when the verdict bears other internal evidence of intemperance in the minds of the jury.”

He refers to a remark in an opinion by Lord Camden (Huckle v. Money, 2 Wils. 207), where it is said:

“It is very dangerous for the judges to intermeddle in damages for torts; it must be a glaring case indeed of outrageous damages in a tort, and which all mankind at first blush must think so, to induce a court to grant a new trial for excessive damages.’’

In the same case the Lord Chief Justice made the following observation on the subject:

“In all motions for new trials it is as absolutely necessary for the court to enter into the nature of the cause, the evidence, facts, and circumstances of

the case, as for a jury; the law has not laid down what shall be the measure of damages in action of tort; the measure is vague and uncertain, depending upon a vast variety of causes, facts, and circumstances; torts or injuries which may be done by one man- to another are infinite; in cases of criminal conversation, battery, imprisonment, slander, malicious prosecutions, etc., the state, degree, quality, trade or profession of the party injured, as well as the person who did the injury, must be and generally are considered by a jury in giving damages; the few cases to be found in the books of new trials for. torts, show that courts of justice have most commonly set their faces against them; and the courts interfering in these cases would be laying aside juries; before the time of granting new trials, there is no instance that the judges ever intermeddled with the damages.”

In the present case a remark in the opinion of Mitchell, J., in Conroy v. Pittsburg Times, 139 Pa. 334 , 21 Atl. 154 , 11 L. R. A. 725 , 23 Am. St. Rep. 188 , seems peculiarly applicable. He said:

“Actual or special malice can rarely be proved; in fact, it rarely exists. Libelous articles in newspapers seldom spring from any hostility to the individual, but usually from a ruthless disregard of personal feelings and private rights, in the mad hunt for news and sensations.”

Motion to set aside verdict denied. Thirty days’ stay and 60 days to make case on appeal granted to defendant after service of notice of entry of judgment.