Alliger v. Brooklyn Daily Eagle — 25 N.Y. St. Rep. 330

Majority

p. 330

Richard D. Alliger, Resp’t, v. The Brooklyn Daily Eagle, Appl’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Libel—Malice—Question fob jury.

Where the publisher of a newspaper falsely states that a person has been arrested on a charge of forgery, malice is presumed; nor does the fact that the reporter who wrote the article did so without malice, and through a mistaken apprehension as to names, basing his statement on one contained in another paper, believing it to he true, refute the presumption; but the question of malice and the credibility of the reporter’s testimony, is for the jury.

2. Same—Damages.

Held, that a verdict for $4,500 is not excessive.

Appeal from judgment entered upon the verdict of a jury at Kings county circuit.

' The action was for libel. The publication stated that plaintiff had been arrested for forgery. The plaintiff was

p. 331

in the insurance business, and resided at Elmont, Long-Island.

Before the publication in defendant’s newspaper, there appeared in several Hew York city newspapers an article, in which it was stated that the plaintiff, Richard D. Alliger, had been arrested for the forgery, one of which was the Tribune.

The publication in the Tribune stated that Alliger had been arraigned in the Essex Market Police Court, and held in 8*2,500 bail on a charge of forgery.

Mr. Kenahan, defendant’s Long Island reporter, read the Tribune article, and believing it to be true, wrote the article which was published on the following day in the Eagle, stating that “ Richard D. Alliger, who was arrested in Hew York, on Monday, on a charge of a forgery, is agent of the British American Assurance Company. He resides at Elmont, L.' I., and has always borne an excellent reputation.”

Mr. Grossman, who was in the insurance business, came to Mr. Kenahan, and stated that it was a mistake about the plaintiff being arrested, that -it was another man of the same name, and Mr. Kenahan upon that information wrote an article in explanation. It was headed “ Two Richard D. Alligers,” and stated that the Richard D. Alliger, who was arrested for forgery, “was not the one who resided at Elmont, L. I., and that the Long Island Mr. Alliger was a gentleman of excellent reputation, earned in twenty years of active business life in Hew York,” etc.

A few days later, the defendant published an article, taken from the Hew York Commercial Bulletin, explaining how his name came to figure as that of the defendant in the police court case, in the place of Mr. Loew’s, who was charged with having forged the endorsement on the draft and check drawn by the plaintiff.

The plaintiff obtained a verdict for $4,500 damages, and defendant appeals.

Morris & Whitehouse, for app’lt- Donohue, Newcombe & Cardozo, for resp’t.

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 char- • acter 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

p. 332

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 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 meagre 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 justices 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, and doubtless were, drawn by the jurymen.

The judgment should be affirmed, with costs.