Meyer v. Press Publishing Co. — 46 N.Y. Super. Ct. 127

Majority

p. 127

AMALIA MEYER, Respondent, v. THE PRESS PUBLISHING COMPANY, Appellant.

Headnote

Verdict—presumption that jurors home compromised opinions as to amount—Libel—rule as to damages.

There is no presumption that individual jurors have compromised their opinions in arriving at the amount of a verdict in an action for libel where there is no evidence as to damages, from the mere fact that the verdict is for a certain number of dollars and three cents.

The rule as to damages in actions for libel stated by the court, and a verdict of §1,375.03, held not excessive, as actual damages to plaintiff in her business as midwife, from a libelous writing in regard to her said business, printed and published in a newspaper in New York city, where a retraction of the charge made was published in the same newspaper two days thereafter, no evidence of damage being before the jury. In such case, the question of malice, in its bearing upon the right to exemplary damages, should not be taken from the jury.

Before Sedgwick and Freedman, JJ.

Decided April 5, 1880.

Appeal by defendant from judgment and from order denying motion for new trial. .

The complaint showed that the plaintiff was a midwife, and that the defendant was the publisher of the World, a newspaper published in the city of New York.

That defendant maliciously published a false and. scandalous article in its paper, and that thereby the

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plaintiff has been injured in her trade and business as a midwife.

The gist of the article complained of was that Mrs. Meyer was well known in the profession as an abortionist. The damages were based on loss of business as a teacher of midwifery and as a midwife.

The answer admitted the publication, &c., and denied each and every other allegation of the complaint. The second defense, by way of mitigating circumstances, stated that the publications were inserted in its newspaper by its employees as items of public, news, believing the same to be true, after due inquiry.

The third defense was that the publication occurred on September 11, and on September 13 a full retraction of said publication was made in the said newspaper, stating that the plaintiff was not intended, but another person of the same name.

The fourth defense was that the facts and circumstances under which the facts stated in such articles were gathered were such as to reasonably induce in the mind of a person , possessed of ordinary intelligence and knowledge a belief in the truth of said publications ; that the persons engaged in the publication of said paper before and at the time of said publications knew such facts and circumstances, and that they were by reason thereof led to believe in the truth of the charge, said facts being that the person really alluded to in said articles was not the plaintiff, but a Mrs. Dr. Meyer, a person generally called by the same name as plaintiff, and that statements were made by several persons to them that she was the same person as the one intended to be described, and that the persons who were engaged in said publications really believed that there was but one Mrs. Dr. Meyer in the city of New York.

Evidence was given upon the trial tending to establish the facts alleged in the answer, and a copy of the

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paper containing the retraction above referred Lu was in evidence.

No evidence of actual damage to plaintiff was given.

Alexander & Green, attorneys, and C. B. Alexander, of counsel, for appellant, among other things, urged:

I. In an action of tort the jury could not estimate the damage, in the absence of evidence, so as to honestly find a verdict of $1,375.03 (Kelly v. Sherlock, L. R., 1 Q. B. 697; Falvey v. Stamford, L. R., 10 Q. B., 54).

II. The verdict is contrary to the weight of evidence, because the defense showed due diligence and care (Dunn v. Hall, 1 Ind. 344 ); also grounds constituting reasonable cause (Shilling v. Carson, 27 Md. 186 ; Purple v. Horton, 13 Wend. 9 ; Skinner v. Powers, . Id. 451; Howard v. Thompson, 21 Id. 319 ; Donelly v. Swain, 2 Phil. Rep. 93 ; Snyder v. Andrews, 6 Barb 43 ; Potter v. Thompson, 22 Id. 87 ).

Davenport & Leeds, attorneys, and J. S. Daven port, of counsel, for respondent.

The was no error in any of the rulings of the learned judge upon the' trial. The defendant’s rights were protected, in every direction. The only point for particular consideration relates to the damages. The appellant’s counsel claims that they were excessive and that the court should have granted the motion fora new trial on that ground. It is not denied that the libel was untrue, or that the plaintiff was entitled to an amount that would have compensated for the actual damage. But it is claimed that the preponderance of testimony was that there had been no actual malice ; that the article complained of had been written after great care and attention, to find the truth of its statements ; that a full retraction was'

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made on the day but one after the libel had been published, and that it was not a case, therefore, in which the plaintiff was entitled to exemplary or punitive damages. It is further claimed that on the evidence it is clear that the amount of the verdict, $1,375.03 was greatly in excess of the amount that would compensate the plaintiff for actual damages.

I am of opinion that the court was right in not taking from the jury the question of malice in its bearing upon the right to exemplary damages. The remarks of the judge on this point called the attention of the jury to all the particulars which were favorable to the defendant. On the other hand, it does not appear that the amount was in excess of actual compensation. It.is to be presumed that the jury exercised a sober judgment in their assessment, and great weight is to be given to their action, in a matter which they are1 so much better fitted than a court to decide. Fry v. Bennett (3 Bo'sw. 246) gives the rule that must be applied to this case : “ The true rule is, that if the defendant fails to justify, the plaintiff is entitled to recover,, at all events, his actual damages. He has a right to these, although the defendant, at the time of publishing the libel, believed the facts alleged to be true. The actual damages are to be determined by the jury, in a sound discretion, upon a careful consideration of the offense or misconduct imputed to the plaintiff, the circumstances of the publication, the extent of its circulation, and the natural and necessary consequences of such a publication, according to the results of human observation and experience.” That the libel charged a very gross violation of morality and law, in respects that it was natural and probable would seriously injure her personally and her business, cannot be denied, and the jury would have a right to consider whether .there would not be damaging consequences from the

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charge, even after there had ceased to be any doubt that she was innocent.

A suggestion was made that the individual jurors must have compromised their opinions as to the proper amount of damages, for the reason that there is no other way of accounting for the three cents that was a part of the verdict. This is not convincing. It is more likely that twelve . minds agreed upon a very exact estimate of damages, than that several were of such opinions as to the amount of damage that an average of them would result in the fraction of three cents, which it be thought important to retain.

I am of opinion that the judgment and order appealed from should be affirmed, with costs.

Freedman, J., concurred.

Cases cited

Purple v. Horton 13 Wend. 9 N.Y. Sup. Ct. p. 129
Snyder v. Andrews 6 Barb 43 N.Y. Sup. Ct. 1849-03-05 p. 129