
    MARIE PRESCOTT, Respondent, v. SINCLAIR TOUSEY, as Pres’t, &c., Appellant.
    
      Decided January 7, 1884.
    
      Libel—Publication of by news company—Evidence of reputation—Social standing—Damages, charge as to.
    
    In an action against a company formed for the purpose of distributing newspapers, etc., printed by others, for damages for the publication of a libel, the plain till must prove that some one other than plaintiff has read the libel in some of the papers that defendant has published; and it is not enough to show that defendant has sold many copies of the paper containing it, there being no presumption that every paper so sold and every part of it has been read. (Per Tb(tax, J.)
    In an action for a libel imputing unchastity to a woman, it is error to admit evidence to show that plaintiff’s general reputation for chastity is good, for the purpose of rebutting evidence of the specific acts of lewdness, introduced by defendant in justification; but this error is cured by the admission of evidence for defendant attacking plaintiff’s general reputation for chastity. (Per Trtjax, J.)
    In an action for libel evidence of plaintiff’s social position and standing is inadmissible. (Per Trtjax, J.)
    It is error for the court to charge that in arriving at the amount of damages, a good way for the jury was to bring the question home to themselves, and say for what sum would they, with their knowledge of the world and of mankind, and of the result of a defamation, be willing to be libeled, as the plaintiff was libeled. (Per Truax and Ingraham, JJ.) Where the court charges, and erroneously, as to the method of ascertaining damages, to which no objection is taken, and in response to a request to charge as to another matter, refuses such request, stating that defendant may have an exception to such refusal, and also an exception to the “method of ascertaining damages charged,” defendant is entitled on appeal to the benefit of an exception to such erroneous charge as to damages, without formally noting his exception in the settlement of the printed case. (Per Ingraham, J.)
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    Appeal by defendant from a judgment, in favor of plaintiff, and also from an order denying a motion for a new trial.
    The action was brought to recover damages for the publication of a libel. The defendant denied that the words complained of were libelous, and then pleaded in mitigation of damages that it was a company formed for the purpose of distributing newspapers and other publications, and that, while engaged in its business, without knowledge of the contents of the newspaper that contained the libel, it distributed a few copies thereof. The defendant also pleaded as a defense and in mitigation of damages, that “ the plaintiff was at the time of the publication, and for a long time prior thereto had been, a woman of bad character as to chastity and was an unchaste woman ; that she had frequented and been an inmate of a house of prostitution in the city of New-York, and- that she had lived with various men as mistress.”
    
      E. H. Spooner and Wm. Fullerton, for appellant.
    
      Marshall P. Stafford, for respondent.
   By the Court.—Truax, J.

The words set out in the complaint imputed a lack of chastity in the plaintiff, and were libelous.

At the close of the plaintiff’s case, the defendant moved to dismiss the complaint, on the' ground that the plaintiff had failed to prove a publication ; the motion was denied, and the defendant excepted.

The plaintiff did not attempt to prove that the defendant had any part in printing the libel. She sought to hold the defendant for publishing the libel after it was printed, and for that purpose she offered evidence showing that one Reid (who was then employed in the office of the plaintiff’s attorney), purchased from- the defendant three copies of the paper containing the libel; that this purchase was made at the request of said attorney ; and that the papers so purchased were delivered to said attorney. The only other evidence of publication by the defendant was that of one Farrelly, the manager of the defendant, and that was to the effect that the defendant distributed and sold 240 copies of the paper, presumably to dealers. There is no evidence that any one ever read, or even saw this libel in any paper that the defendant distributed. The witness Kilday read the libel, but it does not appear from whom he got the papers containing it. The presumption is, that not even the plaintiff’s agent Reid read the libel, for he says that he ‘ ‘ bought the papers and took them over and delivered them” to the plaintiff’s attorney.

^ A libel is published when it is communicated to some person, other than the plaintiff, who understands it, and not until then.

There is no presumption of law that every newspaper and every part thereof is read. The plaintiff must show, by evidence, that some one read the libel in some one of the papers that the defendant “published.”, In other words, before she can recover she must show that the defendant did in fact, publish the libel. This she failed to do. The complaint should have been dismissed on the ground that the plaintiff had failed to prove publication.

A number of exceptions were taken by the defendant to the admission of evidence tending to show that the plaintiff’s reputation for chastity was good. In an action of this kind the plaintiff cannot introduce such evidence for the purpose of rebutting evidence introduced by the defendant for the purpose of justifying the libel (Houghtaling v. Kelderhouse, 2 Barb. 149 ; aff’d 1 N. Y. 530). But this evidence was made relevant by the fact that the defendant offered evidence that tended to prove that the plaintiff’s reputation for chastity was bad (Pratt v. Andrews, 4 N. Y. 493; Inman v. Foster, 8 Wend. 602).

If requested the court would have charged the jury that this evidence did not tend to disprove the evidence of specific acts of lewdness. Some evidence of this nature was introduced by the plaintiff as a part of her case. The receipt of this evidence at that time was error, but this error was cured by the defendant’s attack upon the reputation of the plaintiff.

Whether the plaintiff’s social position or standing in society can be proved in an action of libel for the purpose of increasing damages, is a question not yet settled by the courts of this country. It has been held in some of the states that evidence of the plaintiff’s position in life may be shown as evidence of the extent of the injury that he has sustained (Klumph v. Dunn, 66 Penn. St. 141; Clements v. Maloney, 55 Mo. 353 ; Fowler v. Chicester, 26 Ohio St. 9; Tolleson v. Posey, 32 Geo. 372; Humphries v. Parker, 52 Maine, 502; Karney v. Paisley, 13 Iowa, 89 ; Hosley v. Brooks, 20 Ill. 116). In the case of Palmer v. Haskins (28 Barb. 90), Judge Marvin said that he did not doubt that the general standing in society of either of the parties to the action might be proved, but this was obiter. He was also of the opinion, and this was the turning point of the case, that it was not proper to prove the wealth or poverty of either of the parties. The court of appeals, in Hatfield v. Lasher (81 N. Y. 246), held that evidence of the plaintiff’s bad reputation was admissible, not for the purpose of showing that his reputation was so bad that the defendant’s libel could not injure it, but for the purpose of showing absence of malice in the defendant, and to the same effect is Bush v. Prosser (11 N. Y. 347). The rule is stated by Stephens in his digest of the law of evidence, article 57, as follows : “In civil cases, the fact that the character of any party to the action is such as to affect the amount of damages which he ought to receive is generally deemed to be irrelevant ” (see 1 Ph. Ev. [5th ed.] 757). If the defendant cannot prove the plaintiff’s bad reputation for the purpose of decreasing damages, why should the plaintiff be allowed to show his good reputation for the purpose of increasing them % And if the plaintiff cannot show his good reputation, why should he be allowed to show his standing in society, especially since the laws of this State do not recognize different ranks in society % It must also be remembered that the action of libel is brought for the purpose of recovering compensation for the injury to the plaintiff himself and not for the injury to his reputation. It is absolutely necessary for the plaintiff to show a pecuniary injury in order to maintain this action (Wilson v. Goit, 17 N. Y. 442 ; Viele v. Gray, 10 Abb. Pr. 1). This is sometimes done, through the fiction of law that some words cannot be written of a man without inflicting injury; those words are called actionable per se. It was error to receive evidence of the plaintiff’s social position and standing in society.

Testimony of conversations that had taken place between the plaintiff and Harvier, was objected to by the defendant on the ground that they were immaterial, irrelevant and incompetent, and on the further ground that Harvier’s attention had not been called to them. This testimony was received and the defendant excepted. These questions were asked for the purpose of showing that Harvier was a man of bad habits and character. The testimony tended to disgrace Harvier. It related, however, entirely to matters irrelevant to tie issue. It is true that the state of a witness’s feelings towards a party are deemed to be relevant tó the issue; but that state of feelings cannot be shown by proving that the witness stole the party’s trunk or ulster, or that he did not pay his debts. This testimony did not impeach Harvier’s credit for veracity.. It is not improbable that Harvier might be all that the witness said he was, and yet he might be veracious. Nor did it affect his general reputation for truth and veracity. The evidence related to particular disgraceful acts (1 Green. 461). This evidence tended to mislead and divert the attention of the jury from the questions at issue. It tended to create in their mind a natural indignation against Harvier and against, the party who had called such a person as a witness.

Of course the cross-examination of witnesses on matters affecting their credit should be left mostly to the discretion of the trial court, whose decision is not the subject of review unless there has been an abuse of discretion (Gt. W. Turnpike v. Loomis, 32 N. Y. 127 ; King v. N. Y. C. & H. R. R. R. Co., 72 Id. 607).

The state of Harvier’s feelings towards the plaintiff is deemed to be relevant to the issue, and if he denied that he had expressed feelings of hostility towards the plaintiff it was not error to allow the introduction of evidence that contradicted him in this respect.

He could also have been impeached by showing that he had made statements out of court which contradicted the statements that he had made on the trial, provided, these last statements were relevant to, or of facts that are deemed to be relevant to the issue, and provided his attention had been called to the particular circumstances and occasions of the making of such statements. Both of these well established rules were violated on the trial.

The plaintiff was allowed to testify that she had been told that Harvier was a scoundrel. This ruling was erroneous.

The court charged the jury that in arriving at the amount of damages to be awarded the plaintiff, a good way for them to do was to bring the question home to themselves and say for what sum would they, with their knowledge of the world, and of mankind, and of the result of a defamation, be willing to be libeled, as the plaintiff was libeled.

To this charge the defendant excepted. This'was error. It took from the jury the real question that they were to determine, viz., how much had the plaintiff been injured by the defendant’s acts, and put in its place the question, how much do you think you would have been injured if the act complained of had been done to you instead of to the plaintiff ? Such a rule would be a dangerous one to adopt in the administration of the law (Meyer v. Press Pub. Co., 46 Super. Ct. 127).

The judgment must be reversed.

Ingraham, J.

[Concurring.] After the charge to the jury on the questions of fact that they were to determine, and near the end of the charge, the learned judge, on laying down the rule as the method of ascertaining the damages in case the jury should find for the plaintiff, told the jury that as good a way-to get at the amount of damage as any, “is to bring the question home to yourselves” (the jury) “ and say, putting yourselves in the position -of the party defamed, what would you, with your knowledge of the world and of mankind, and of the result of a defamation be willing to be libeled in that way for?” This it appears to me in effect instructed the jury that they were to ascertain the damages that the plaintiff had sustained in consequence of the libel complained of, not by assessing from the evidence in the case the amount of the injury inflicted on her, so that she would be compensated for such injury, but for the jury to ascertain “from their knowledge of the world and of mankind, and the result of a defamation,” the amount they would be willing to be so libeled for.

They were not to compensate plaintiff for the injury she had received, but were to, give her such an amount as would compensate the jury for a similar libel published about them, and they were to arrive at such a determination, not from the evidence in the case, but from the jury’s “knowledge of the world, of mankind and the result of a defamation.” '

It is hardly necessary to cite authorities to show that such an instruction is entirely inconsistent with every principle of the common law, on the question of the measure of damages.

' Judge Parsons says, “ the principle which measures damages at common law, is that of giving compensation for the injury sustained, a compensation which shall put the injured party in the same position in which Tie would have stood had he not been injured” (3 Parsons Contr. 155).

It was, however, claimed on the argument that there was no exception to this portion of the charge. After the court had finished the charge, counsel for the defendant requested the court to charge that in the absence of express malice, the answer and defense should not aggravate the damages, and to this the judge replied, “I have charged otherwise, and I give you an exception both as to the method of ascertaining damages charged, and to the portion of the charge which permits the jury to consider the averments of the answer, bill of particulars, and conduct of the defense, in aggravation of damages.” The request referred to the aggravation of damages, to that the court allowed an exception and also an exception to the “ method of ascertaining damages charged.” Now the only “ method of ascertaining damages charged ” was the one to which attention had been called, for the court after stating that there was “ no well defined rule by which you can estimate the value of a good name to a woman or honor to a man,” said 11 as good a way as any to get at it is, bring the question home to yourselves,” and then follows the direction of the jury in question. This is the rule the learned judge laid down as the “ method of ascertaining the damages,” and is the only portion of the charge that I have discovered to which such an exception could apply. In People ex rel. Dailey v. Livingston (79 N. Y. 279), the case stated that the defendant excepted to the closing of the charge in. regard to the ballot boxes. The court, holding that that was a sufficient exception, say, “It would have been strictly more accurate to have repeated the language excepted to, but the exception referred to. the close of the charge and the subject. There was a single idea in that part of the. charge, and that was expressed in clear and emphatic language. The exception could not have referred to anything else, and it is difficult to see how there could have been any misapprehension as to the application of the exception and it seems to me that whát was said in that case applies to the case at bar.

The court allowed .the exception and it was to the particularruling now sought to be reviewed, consequently the case is not one of the class of which Briggs v. Waldron (83 N. Y. 582), is an example.

There it appeared at the beginning of the trial, there was a statement that the court directed that whatever should'be objected to, the stenographer should enter an exception. The court of appeals say that this was simply regarded as entitling the defendant on the settlement of the case to have an exception entered to such ruling as he desired to review upon appeal, and held it was the duty of the appellant to see that an exception upon which he intended to rely, was properly noted; but in this case the exception was to a particular rule laid down by the court in the charge; after the court had allowed the exception it would have been useless for the appellant to have made a request for such an exception. By such a request defendant could not have obtained more than had been given by the court, viz., an exception to the instruction on the point mentioned, and the defendant was by the action of the judge prevented from asking for an exception to such ruling.

Without passing on the other serious questions presented on the appeal, I am of the opinion that for the error above mentioned there should be a new trial, and I therefore concur with Judge Truax, that the judgment should be reversed and a new trial granted, with costs to abide the event.

Sedgwick, Ch. J.

—[Dissenting.] I am unable to agree with Judge Ingraham, in his discrimination of this case from Briggs v. Waldron (83 N. Y. 582), or with the position of Judge Truax. I have therefore to dissent from their conclusion.  