McMahon v. New York News Pub. Co.

This action was brought to recover damages for a libel. The plaintiff had a verdict for $16,500, which the defendant moved to set aside, and for a new trial, and the motion was granted, unless the plaintiff, within 20 days thereafter, stipulated, in writing, to reduce the verdict to $7,500. Within the time named the plaintiff stipulated to reduce the verdict to $7,500, and from the judgment thereafter entered for that amount, with costs, and an order denying a motion for a new7 trial, the defendant has appealed. It insists that the judgment should be reversed because the trial court erred in charging the jury that it “might award punitive damages without evidence of any actual or express malice.” We have read the charge, as set out in the record, and are unable to find that the jury were instructed as claimed by the appellant’s counsel. What the court said was that, if the jury believed that the publication complained of “was made recklessly and maliciously and wantonly, and in utter disregard of the rights of the plaintiff and of others, in utter disregard of the truth, you have the right to go further, and award to the plaintiff, as a punishment to the defendant, what is known in law as ‘punitive’ or ‘exemplary’ damages, as an example to the defendant, and others following the same line of business, to refrain from recklessly or willfully or wantonly publishing libels concerning citizens. * * * Now, gentlemen, • of course there is no evidence of any actual or express malice on the part of this defendant, or any of its officers, agents, or employés, against this plaintiff. There is no evidence that any of them knew him, or entertained any ill feeling towards him. But that is not essential in order to justify a jury in awarding exemplary damages. The defendant is a corporation. It is responsible for whatever is published in its newspaper, and if it al

In Samuels v. Association, supra, Davis, P. J., dissenting from the opinion affirming the judgment at general term, said:

“The plaintiff, in an action of libel, gives, evidence of malice whenever he proves the falsity of the libel. It becomes, then, a question for the jury whether the malice is of such a character as to call for exemplary or punitive damages, and that question is not to be taken away from the jury because the defendant gives evidence which tends to show that there is in fact no actual malice. When he. gives no such evidence, it is the duty of the court to say to the jury that, upon proof of the falsity of the libel, the plaintiff is entitled to exemplary damages, in their discretion. Tillotson v. Cheetham, 3 Johns. 56 , and see opinion of Kerr, O. J., in same case; Taylor v. Church, 8 N. Y. 452 , where the rule of Tillotson v. Cheetham is approved; Hunt v. Bennett, 19 N. Y. 173 . But, where he gives evidence tending to prove the absence of actual malice, then it is the duty of the judge to submit to the jury the question, as one of fact, whether such malice existed in the publication.”

The court of appeals ( 75 N. Y. 604 ) reversed the judgment on the dissenting opinion, thus recognizing and approving the rule as stated by Judge Davis. And as late as 1898, in Holmes v. Jones, 147 N. Y. 59 , 41 N. E. 409 , that court again approved of the rule, Judge Andrews saying:

“The publication of a libel js a wrongful act, presumably injurious to those persons to whom it relates, and, in the absence of legal excuse, gives a right 'of recovery, irrespective of the intent of the defendant who published it; and this, although he had reason to believe the statement to be true, and was actuated by an honest, or even commendable, motive in making the publication. But the amount of damages in an action for libel is peculiarly within the province of the jury. The jury may give nominal damages, or damages to a greater or less amount, as they shall determine. The jury may award damages

which are merely compensatory, or damages beyond mere compensation, called ‘punitive’ or ‘vindictive’ damages, by way of example or punishment, when in their judgment the defendant was incited by actual malice, or acted wantonly nr recklessly, in making the defamatory charge.”

We do not understand that the court of appeals in Krug v. Pitass, 162 N. Y. 154 , 56 N. E. 526 , intended to overrule these cases, or to lay down any different rule relating to punitive damages, than is therein stated. Had that court intended to do so, it would have so expressed itself. Certainly, it would, at least, have paid itself the compliment of referring to them.

The judgment and order appealed from are right, and must be affirmed, with costs. All .concur.