#### John Morrison, Resp’t, *v.*The Press Publishing Co., App’lt.

*(New York Superior Court, General Term,*

*Filed April 16, 1891.)*

1. Libel—Malice—Exemplary Damages.

The falsity of a libel is sufficient proof of malice to uphold exemplary damages, although the defendant was not actuated by spiteful or revengeful feelings, and plaintiff’s right to recover them is in the discretion of the jury.

2. Same—Evidence.

_ A witness who testified to plaintiff’s good reputation before the publication of the article in question, was allowed to testify on cross-examination to having heard stories derogatory to plaintiff at that time, but was not allowed to speak as to stories heard subsequent thereto. *Held,*no error.

3. Same.

Other articles in the same paper, written by the same person and containing references to plaintiff, showing that he knew him and had easy means of ascertaining the truth, are admissible on the question of malice. Per. Sedgwick, Oh. J.

*3584. Same—Mitigation.

Evidence that other persons had published libelous statements concerning the plaintiff is not admissible in mitigation of damages. Per Tkuax, J.

5. Same—Damages.

Where the libel consisted of statements that plaintiff was charged with certain offenses, it is proper to refuse a request to charge that the jury could only award such damages as would result from a publication that he was charged with the offenses, and not such damages as would flow from the publication of a statement that he was guilty of the charges. Per Tbttax, J.

Appeal from judgment entered on the verdict of a jury, and from an order denying a motion for a new trial

The action was brought to recover damages for an alleged libel published by defendant concerning plaintiff in the daily paper called “TheWorld.”

*Lowery, Stone &*Auerbach, for app’lt; *Joshua M. Fiero,*for resp’t.

Sedgwick, Ch. J.

Several of the exceptions taken upon the trial were too general in form to be valid or to admit of review. The others will be examined.

The action was for damages from libel. The court charged that there was malice in the libel, and to this the defendants excepted. The libel contained such matter as this, that “a woman, pointing her finger at Morrison, said with much feeling, that man could not violate my sister’s honor, had her blacklisted in the factory and she a widow with five children.” As this was false and published without justification, it was malicious. And the malice, which is inferred from such a publication, is malice in fact or actual malice.

There was an exception in the following words: “ I except to what the court said with regard to the exemplary damages in this case, especially in view of the fact that the court held that there was no actual malice proven.” The court thereupon said “ as I define actual malice.” The part of the charge that referred to actual malice as defined by the court was: “But as a definition of what the counsel intend to convey by actual malice is that the defendant was not actuated by any spiteful or revengeful feelings; that he had at the time no particular feeling of ill will towards this plaintiff when making the publication. There does not seem to be evidence in the case which would warrant that. The proof of malice in the case, and proof upon which malice rests, is the proof of the fact of the libelous publication itself. That is, of course, evidence of malice, and as it is admitted to have been made, malice is proven.”

The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintiff’s right to recover them is in the discretion of the.jury. *Bergmann*v. Jones, 94 N. Y., 51. In that case a charge was upheld that in actions of libel “ the plaintiff gives evidence of malice whenever he proves the falseness of the libel; that it is then a question for the jury to say whether it is of such a character as to call for punitive or exemplary *359damages, and that -the question is not taken from them because the defendant gives evidence which tends to show that there was, in fact, no actual malice.”

In *Samuels*v. *Evening Mail Association,*75 N. Y., 604, there was an approval of the law as given in the dissenting opinion in the same case. 9 Hun, 288. That case avers that upon proof of the'falsity of the libel the plaintiff is entitled to exemplary damages in the discretion óf the jury. But when the defendant gives evidence leading to prove the absence of actual malice, then the jury should pass upon the question as one of fact whether such malice existed in the publication.

Of course, the meaning of this is, that if the defendant gives evidence tending to disprove entirely the malice which is presumed from the falsity of the libel to have existed, there should be no exemplary damages. This result does not follow if the evidence tends to disprove only a part of the malice which is presumed. There will be left that malice which the jury may think calls for exemplary damages.

In the present case the court held that there was no actual malice in the sense of spite, or ill-will or revenge. This, however, was not inconsistent with recklessness and indifference to the rights of the plaintiff, an intentional disregard of the consequences of the libel *Voltz*v. *Blackmar,*64 N. Y., 444; *Millard*v. *Brown,*35 id., 297. The doing of any act without just cause or a wrongful act purposely done is malicions.

As the presumed existence of malice of this kind remained, the defendant had not an exemption from liability to exemplary damages. Accordingly, the court, after charging that there could be no damage on account of defendant’s ill-will or spite to plaintiff, was correct in saying you may give him in addition as exemplary damages such an amount as you deem proper and warranted by the evidence. The exception should be overruled.

The composer of the libelous article was a witness for defendant. He was allowed to testify that two other articles that had appeared in the same newspaper that contained the libel were composed by him. And these articles were admitted in evidence.

There was no error in this. They contained nothing that was likely in itself to bias the jury against the defendant or to distract their attention from the issue. And they did contain references to the plaintiff which showed that the witness knew him and had easy means of ascertaining from him the truth of the matters contained in the libel.

As recklessness and indifferencé to rights were elements of malice, the court was correct in admitting the articles as relevant- to the question of malice.

The testimony of witnesses Levy and Mallane as to their knowledge of plaintiff’s reputation was such that it was at least a question of fact for the jury whether they knew that reputation, and their testimony as to it was admissible.

A witness of plaintiff testified as to the good general reputation of the plaintiff before 19th February, 1888. On cross-examination he was allowed to testify as to his hearing at the time referred *360to stories derogatory to the plaintiff. He was not allowed to speak as to stories subsequent to that time. It was not a part of a cross-examination and the defendant had no right as a part of a. defense to prove the matters inquired into.

The judgment and order are affirmed, with costs.

Truax, J.

The defendant attempted to show, in mitigation of damages, that some years prior to the publication of the alleged libel by the defendant, an affidavit charging the plaintiff with having circulated stories concerning the chastity of women employed in a certain carpet factory was published in another newspaper in the city of New York.

In one instance the attempt was made by asking the plaintiff on cross-examination if a certain affidavit, the affidavit above referred to, did not charge him with having circulated stories concerning' the chastity of girls in a carpet factory. This question was ruled out and the defendant excepted.

The exception was not well taken. The evidence sought to-be elicited was not the best evidence of the contents of the affidavit, nor was this the proper way of proving that plaintiff had circulated such stories, if that fact were material to the issue. Nor did this evidence tend to rebut the presumption of malice on the part of the defendant, for there is nothing to show that defendant was aware of the affidavit at the time it published the libel concerning the plaintiff. *Hatfield*v. Lasher, 81 N. Y., 246.

Nor was it proper to*show that other persons had, before the publication of the libel by the defendant, published and circulated libelous statements concerning the plaintiff. In the first place, the publication alluded to was made some four years prior to that of the defendant, and the fact that such a publication had been made did not tend to show that the damage suffered by plaintiff by the publication of the libel by the defendant was not necessarily attributable to the act of the defendant. And it is not the law in this state that the defendant, in an action for libel, can show that the plaintiff’s reputation was so bad that defendant’s libel did not injure it. *Hatfield*v. Lasher, 81 N. Y, 250, and cases there cited ; *Prescott*v. Tousey, 50 Supr. Ct., 12.

On the trial the court asked a witness what plaintiff’s reputation in the community in which he, the plaintiff, resided, was, and the witness answered that among laboring men with whom he, the witness, associated, plaintiff’s reputation was bad. This answer was stricken out as not responsive and defendant excepted. The answer was not responsive and it was not error for the court to strike it out. But even if it was error, the error was cured, for immediately afterwards, in answer to another question, the witness skid that plaintiff’s general reputation in the community was bad.

The defendant .called witnesses to show that plaintiff’s general reputation at the time the libel was published by the defendant was bad. The plaintiff, in rebuttal, called witnesses to show that at the time of such publication his general reputation was good. On cross-examination, one of these witnesses said that he *361had heard among laboring people and members of laboring organizations (the plaintiff was prominent in labor organizations) stories derogatory to plaintiff’s character. The witness was then asked what these stories were, generally. This question was ruled out, and the defendant excepted. JSTo error was committed.

It may be that defendant would have had the right to show what plaintiff’s reputation was, but it is doubtful if it had the right to show what'his character was. It is also to be noticed that the question applied to stories affecting the character of the plaintiff, told, as well after the publication of the alleged libel as before, while the witness on the direct examination had limited his testimony to the plaintiff’s *reputation*at the time of the publication of the alleged libel. There were two other exceptions to rulings of a like kind, but for the reason last stated they were not well taken.

The trial judge charged that there was malice in the publication, and to this the defendant excepted, but the judge also charged that the evidence would not warrant the jury in finding that there was actual malice toward the plaintiff; that in publishing this article, which was libelous, the law infers malice; that is, malice in law existed. He then defined actual malice, as distinct from malice in law, to be such malice as attached to an act when committed by a revengeful or spiteful disposition. This was in effect charging that while there was no actual malice shown, still the jury could infer malice from the mere fact of the publication of such a libel. It was not error so to charge. In this case malice was proved when the publication was proved. *Fry*v. Bennett, 5 Sandf., 54.

This court declared in the case above cited that when a publication was libelous upon its face the law implied that it was published with a malicious intent, and that malice in such cases is a conclusion of law which the plaintiff is not required to prove and which the defendant is not allowed to deny.

Hnder the authority of this case it would have been error for the trial judge to submit the question of the defendant’s malice to the jury, and the fact that the trial judge charged that there was no proof of actual malice is immaterial. What the trial judge meant was, that there was no proof of malice outside of the malice that the law inferred from the mere fact of the publication of the libel, and for this malice in law the jury might, under the *Samuels*case, award exemplary damages.

The defendant gave no evidence that tended to show that there was in fact no actual malice; but even if it had given such evidence the trial judge did not err in charging, not that the jury must, but that it *might*give exemplary damages.

The case was one within the rule laid down by Judge Davis in *Samuels*v. *The Evening*Mail, 9 Hun, 288, entitling the plaintiff to exemplary damages. The publication was grossly libelous, was negligently and recklessly made, and made without any regard to the rights of the plaintiff.

*362The last alleged error to which our attention has been called by counsel for defendant relates to a request of the defendant to charge that in fixing the amount of damages to be awarded the plaintiff, the jury must bear in mind that the defendant did not publish any statement that the plaintiff was guilty of the charges which were said to have been made against him, but merely that he was charged with certain offenses, and they can award only such damages as would result from the publication that Morrison had been charged with the offenses, and not with such damages as might flow from the publication of a statement that Morrison was guilty of the charges. It was not error for the judge to refuse to charge as requested.

The defendant cannot escape responsibility for libeling plaintiff by showing that the libeling was done on the authority of some other individual. *Dole*v. Lyon, 10 Johns., 447.

The judgment and order appealed from are affirmed, with costs.