Weber v. Butler — 62 N.Y. St. Rep. 669

Majority

p. 669

Clement J. Weber, Resp’t, v. Edward H. Butler, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 17, 1894.)

Headnote

Libel—Careless publication.

A publisher of a newspaper is liable for publishing defamatory matter concerning plaintiff, on account of confusing him with another person of the same name where, if reasonable care had been taken, it could have been ascertained that plaintiff was not the person intended.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

Irving Browne and Adelbert Moot, for app’lt; Filkins & Coe¡ for resp’t.

This is an action of libel brought by the plaintiff, a resident of the village of Medina, Orleans county, against the defendant, as the proprietor and publisher of the Buffalo Evening News, a daily newspaper published in the city of Buffalo, for publishing in said paper an article which charged the plaintiff with having been guilty of the crime of bigamy. The article was concededly libelous, and it was unquestionably published of and concerning the plaintiff; the reporter for the paper, who wrote the article and caused it to be published, so testified, and an article subsequently published by the defendant in the paper in substance so stated. An action had theretofore been commenced in the supreme court, county of Erie, by a Mrs. Louisa Weber, against Clem Weber, to annul a marriage between the parties, on the ground that at the time of their said marriage the defendant had a wife who was then living, and which prior marriage was at the time in full force. A motion had been made in the divorce action, founded upon the pleadings in said action and affidavits, for a commission to take the testimony of a foreign witness, and the papers were on file in the clerk’s office. The defendant’s reporter, learning of said motion, examined said motion papers sufficiently to ascertain the nature of the action, and that the defendant’s name was Clem Weber; and having known the plaintiff when he was a resident of Buffalo, and whom he knew by the name of Clem Weber, he assumed that the defendant in the divorce action and the plaintiff were one and the same person, and wrote and caused to be published the libelous article. Had he examined the motion papers with the care which the gravity of the charge made against the plaintiff in the article demanded, he would have easily discovered that the defendant in the divorce action was not the plaintiff. He would have learned from the papers that the parties to the divorce action were married at Sackett’s Harbor, N. Y., in the year 1889, and resided there till 1891, when the defendant abandoned the plaintiff, left the stale, and never returned thereto to live. Had hé read the papers with care, he would not have fallen into the error he did.

The jury were justified in finding from the evidence that it was a careless and reckless act to publish the article under the circum

p. 670

stances disclosed, and if they so found they were at liberty to award punitive damages. Holmes v. Jones, 121 N. Y. 461 ; 31 St. Rep. 379 ; Warner v. Press Publishing Co., 132 N. Y. 181 ; 43 St. Rep. 633 . This case is distinguishable from the case of Hanson v. Newspaper Co., 159 Mass. 293 , to which our attention is called in the appellant’s brief. In that case the trial court found that the article complained of was not published of or concerning the plaintiff. Neither did he find that the publisher was guilty of carelessness or negligence in publishing the article. Not so here. We do not think the verdict in this case, of $800, was so excessive as to justify us in disturbing it.' The defendant’s paper had at the time the article was published a daily circulation of over 50,000 copies. Several hundred copies were circulated in the village where the plaintiff resided with his family, consisting of a wife and children, and where he was engaged at the time in the business of a dry-goods merchant.

We do not find, after a careful examination of the case and the excéptions of the defendant, any good ground for disturbing the verdict.

The judgment and order appealed from should be affirmed.

All concur.

Cases cited

Holmes v. Jones 121 N. Y. 461 N.Y. 1890-06-03 p. 670
Warner v. Press Publishing Co. 132 N. Y. 181 N.Y. 1892-03-15 p. 670