Majority
p. 110Alliger v. Brooklyn Daily Eagle. (Supreme Court, General Term, Second Department. July 2, 1889.) Argued before Barnard, P. J., and Pratt and Dyicman, JJ.
Headnote
1. Libel—Malice.Where the publisher of a newspaper falsely states that a person has been arrested for forgery, and by an attempted explanation gives greater circulation to the report, without correcting the error, the existence of malice is for the jury, though the erroneous statement results from an accidental confusion of names first made in other papers from which the articles in question were taken, and the reporter who wrote them testifies that he published them with good motives, believing them to be true.
2. Same—Damages.
A verdict for $4,500 damages in such case is not excessive.
Appeal from circuit court, Kings county.
Action by Richard D. Alliger against the Brooklyn Daily Eagle, a newspaper corporation, for libel. The publication stated that plaintiff had on the day before been arrested and arraigned before the police court on a charge of forgery, and held in $2,500 bail. It stated that the alleged criminal was the agent of the British American Assurance Company, and resided at Elmont, Long Island, and had always borne an excellent reputation. The article appeared on September 27,1887, and referred to a brother of plaintiff as having ’been connected with various insurance frauds, and had been a convict in the Kings county penitentiary.- The article was written by a reporter of defendant, and was based on articles appearing in the Hew York Tribune and other papers. Being informed that it was not plaintiff, but another man of the name of Loew who was arrested for the crime, and plaintiff was a witness against him, on the following day an explanation was published, which stated that there were two Richard D. Alligers, and that the person arrested was the agent of the British American Assurance Company. On the 5th of ■October defendant published a retraction, stating that it was not Mr. Alliger •at all, but a Mr. Loew, who was arrested, and explaining how plaintiff’s name was associated with the affair, which was by being connected with the business transaction in which the forged paper was used. The first article was referred to as a careless, though perhaps not a malicious, piece of reporting, for which some one should suffer. Mr. Kernahan, the reporter who wrote the first two articles, testified that he knew Mr. Alliger well, and was friendly with him, and was not actuated by malice in writing the article, but believed it to be true. There was a verdict and judgment for plaintiff for $4,500, and -defendant appeals.
Morris <& Whitehouse, for appellant. Donohue, Newcombe & Qardozo, for -respondent.
Malice was presumed in this case from the conceded falsity and libelous character of defendant’s publication concerning plaintiff. The reporter’s testimony that he wrote the article without malice did not, as matter of law, refute this presumption. A question of fact arose on this reporter’s testimony as to his credibility, although it was not contradicted by the testimony of any other witness, and besides that there was conflict between his story and the presumption of malice which arose from the character of his act. Hence the learned trial judge very properly submitted the questions both of malice and damage to the jury. It was an even question, under the ■circumstances of this case, whether the first so-called retraction did not make matters worse. When reporters are so industrious in reading up other publications for their employers, they and their employers, too, ought.at least to
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•be equally industrious in ascertaining whether or not they are true, and in. reading up and publishing the corrections made by the original publishers when they are concededly false. The publications in the other papers bore on this point and on the damage which plaintiff had sustained, showing how far and in what way plaintiff had been acquitted of the original charge. The plain truth is that when men engage in a business involving the publication of libelous matter they must bear the legitimate risks of their business, and the consequences of their mistakes. Gross carelessness in publishing such matter or in making prompt, full, and ample retraction are facts which a jury not only may, but ought to, consider in cases of this character. It would be a meager mitigation for one falsely defrauded in his good name and reputation to be told that the reporter was very sorry that he had done the wrong; that he had believed the falsehood to be true, and published it to others as true. Displayed libels, conspicuously published, are not very much mitigated by fine-type retractions and corrections. A stiff verdict may be pretty severe on the individual newspaper publisher who has to pay it; but in these days, when newspapers are rendered “spicy” in proportion as their articles are personal, it is not strange that juries should render what may seem severe verdicts. The courts are powerless to prevent this, unless the verdict is so large as to indicate passion, prejudice, or corruption. The jury were the proper judges of the damages which plaintiff had suffered. This verdict was pretty large, but so was this false charge. The jury probably took that view of the case, and it cannot be said that the verdict shocks the average sense of justice in view of inferences which might have been, and doubtless were, drawn by the jurymen. The judgment should be affirmed, with costs.