Palmer v. New York News Pub. Co.

The action was to recover damages for a libel published concerning the plaintiff by the defendant, the publisher of a newspaper in the city of New York. No question of fact is presented by the appeal, but it stands solely upon certain exceptions taken upon the trial, which will be considered in the order in which they were presented by the appellant.

It appears from the evidence that the libel was published, not only by the defendant’s newspaper, but in other newspapers throughout the United States. The defendant pleaded in mitigation of damages that, the identical libel having been published in regard to the plaintiff in many other newspapers throughout the United States, the plaintiff had begun various actions against such papers to recover the damages which he alleged he suffered by the publication of the same article; that the cause of action was substantially the same; and that in all of said actions the plaintiff claimed damages to the extent of over $200,000 in the aggregate. Upon the trial the

The defendant made it appear that the information upon which it relied for the publication of this libel was given to it by the United Press Association, which seems to be an organization of several newspapers for the purpose of collecting and disseminating to its members the current news. The claim of the defendant in this regard was that it had employed the United Press for this purpose for a considerable length of time, and that it placed confidence in the accuracy of the information which it received. The publisher of the paper testified that this was a news item; and that he did not consider it necessary, in general, to verify such items as he received from the United Press, because he •considered that a reliable source of information. The article was therefore published, as it was claimed, upon the authority of the United Press, without any attempt by the publisher of the newspaper, or any one engaged in publishing it, to verify its truth. The fact that it was published in reliance upon the statement of some other person is not a defense. Morey v. Journal Ass’n, 123 N. Y. 207 , 25 N. E. 161 . But the defendant introduced the evidence for the purpose of enabling it to say that it received this scandalous •article from a reliable source, and therefore was not liable for punitive damages, although it made no effort to ascertain its truth before giving it to the world. In view of that claim, and the proof under it, it would undoubtedly have been competent for the plaintiff to show that the United. Press Association was not a reliable and accurate collector of information of this class which is called news, but that it had furnished to the defendant for publication other scandalous items, which, upon examination, had proved not to be true, and thus to have shown the jury that it was not safe to rely upon the material sent by the United Press for publication. This was so ruled by the learned justice at the trial term. Thereupon the plaintiff undertook, upon the cross-examination of one of the defendant’s witnesses, to make, proof of that kind, and for that purpose he showed to the witness the answer of the defendant in another action, and asked him to identify it. This was done under objection. The plaintiff thereupon offered the answer in evidence, but it was excluded upon the defendant’s objection. Of coursé, the defendant had no reason to complain of this ruling, because the answer, whatever it was, was not permitted to go before the jury, and there was no information with regard to it. The witness who identified the answer was the counsel of the defendant, and he

In its charge the court said to the jury that they might consider from the evidence whether the act was malicious, or whether it was such a negligent act, or so grossly negligent, or so wantonly done, that the defendant should be punished,—that an example should be made of him, so that the publishers of a paper hereafter should not repeat it, or that other publishers should be warned not to publish similar articles. But the jury were expressly told that the plaintiff was not entitled to recover punitive damages unless they found from the evidence that the article was published wantonly, negligently, or maliciously. In this statement of the law, clearly no mistake was made. Bergman v. Jones, 94 N. Y. 51 ; Smith v. Publishing Co., 5 C. C. A. 91 , 55 Fed. 240 ; Smith v. Matthews, 152 N. Y. 152 , 46 N. E. 164 . In the case of Bergman v. Jones, supra, it was held that, where a libelous article was published of the plaintiff, and the falsity of the article was shown, that of itself was sufficient evidence of malice to warrant the jury in giving punitive damages, if they saw fit to do so. In this case there was no claim that the article was not false. Its falsity appeared affirmatively by the evidence of the plaintiff, and there was no effort on the part of the defendant to prove anything to the contrary. But, in addition to that, there was evidence from which the jury might have found that there was express malice in this publication. It appeared that the plaintiff, before bringing his action, had made an effort to obtain a retraction, but that the effort was entirely futile. All that he succeeded in getting was that, if he could furnish proof of the untruthfulness of the article, the defendant would be very happy to make such retraction as might be just and proper in the premises. The presumption was that the article was false, and when the defendant was called upon to make a retraction of it it was its duty, unless it had reason to believe that the article was true (and of that there is no claim), to retract the charge as fully and broadly as it had been made. A refusal to do this, coupled with the manner of the publication, would clearly warrant the jury in

The learned judge, in his charge, said to the jury that they might give to the plaintiff damages to compensate him for the mental suffering, sense of shame, and wounded honor which he has endured; and to this charge an exception was taken. The defendant insists that there was no evidence that the plaintiff endured any mental suffering, or any sense of shame or wounded honor, and that he is not entitled to damages for any such thing unless he makes it appear affirmatively that such conditions exist. This is not the law. A publication of a libel which reflects upon the character of a reputable man must necessarily cause him more or less mental suffering and humiliation, and these things are elements of general damages, which the jury may taken into consideration. They need not be pleaded, nor need any proof be given of them, because it will be assumed that such things follow the knowledge of the publication of a libel against an honest man. For that reason the exception to that portion of the charge was not properly taken.

The defendant complains of the size of the verdict, which was $7,500, and insists that it' is excessive. That we cannot say. The paper in which this libel was published had a circulation of 100,000, very largely in the city of New York. The plaintiff’s business was one which involved great responsibilities, and required that he should have, and be able to retain, the confidence of those who employed him. His employers were men of considerable financial responsibility, and the plaintiff was not infrequently intrusted with the management of affairs of great interest. No charge could be made against him that would be so destructive of his usefulness as the charge of dishonesty; and the circumstances under which this charge was made, and the nature of the charge, were such as to seriously impugn his honesty and reliability. There is no reason to suppose that the damages given by the jury were any more than fair and proper in view of all the circumstances which are made to appear in the case. No other objection to this judgment is suggested by the defendant’s counsel.

The judgment and order therefore must be affirmed, with costs. All concur.