
    William B. Keller, Respondent, v. The American Bottlers’ Publishing Company and Others, Appellants.
    First Department,
    October 21, 1910.
    Libel — evidence — justification—prior libels published by plaintiff— libels relating to third persons — damages — actual damage cannot be mitigated— purpose of proving mitigating circumstances — charge — justification — truth of portions of libel — liability of joint tort feasors.
    While a defendant sued for libel may prove tliat the libel was immediately provoked by a prior libel published by the plaintiff, and so closely connected with the defendant’s libel as to be some justification for it, he cannot give evidence of prior libels by the plaintiff published several years or months prior to the defendant’s libel and in no way connected therewith.
    Libels published by the plaintiff are not admissible to show justification or provocation where they related to persons other than the defendant, as for example, to persons who advertised in a newspaper published by the defendant.
    Although a defendant sued for libel may give evidence of “mitigating circumstances” for the purpose of enabling the jury to determine the actual damage suffered, such proof cannot go to reduce or mitigate the actual damage suffered when once that is ascertained.
    Where a publication is not justified the plaintiff is entitled to recover his actual or compensatory damages in any event. Such damages cannot be mitigated.
    While a jury may consider those portions of an article which are true for the purpose of determining the actual damage, it cannot consider such portions in mitigation of actual damages. Hence, a charge that the jury may consider the portions of the article which are true in mitigation of damages is not injurious to the defendant as it is more favorable than that to which he is entitled.
    A request to charge that the jury may not render a verdict against the individual managers of a newspaper unless they find that they, knew of the article before it was published and took some active part therein is properly refused, being too broad.
    It is not error to refuse to dismiss a complaint for libel against the manager of a publishing corporation, made codefendant, where there is proof that he was such officer and in an action brought by him against the plaintiff had alleged that ho was one of the managers of the paper, especially where he was present at trial and did not contradict the evidence.
    Appeal by the defendants, The American Bottlers’ Publishing Company and others, from a. judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 28tli day of January, 1910, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 1st day of February, 1910, denying the defendants’, motion for a new trial made upon the minutes.
    
      Clarence J. Shearn, for the appellants.
    
      B. F. Einstein, for the respondent.
   McLaughlin, J.:

Action to recover damages for an alleged libel. The plaintiff is the editor and manager of a trade paper called the National Bottlers' Gazette. The defendant corporation publishes a rival paper known as The American Bottler and the libel complained of appeared in this paper on March 15, 1907. On the fifth of February preceding the. plaintiff had published an article in his paper warning persons engaged in the bottling trade of the dangers incurred under the ¡National Pure Food Law in using preparations not correctly labeled and citing as an instance a preparation made by a Texas corporation, -which, it seems, was an advertiser in The American Bottler. It also appeared that the plaintiff had previously published in his paper a series of articles attacking The American Bottler and the persons connected with it, and its editor, after the February article appeared, offered its columns to the Texas company for a reply to the same.1 This reply, was printed as a paid advertisement in the form of a letter from the Texas company to its customers and is the libel complained of. Upon the trial the plaintiff had a verdict for $3,000, and from the judgment entered thereon and an order denying a motion for a new trial the defendants appeal.

The principal questions presented by the appeal are (1) rulings on the admissibility of certain evidence and (2) the correctness of a portion of the charge to the jury. During the course of the trial the defendants offered in evidence a number of extracts from the plaintiff’s paper, each of which it is claimed was a libel on the defendants. These extracts were excluded and an exception taken to the rulings. I think the rulings were right. So far as the articles referred to related to the defendants, the last one had been published on the 22d of December, 1906, nearly three months before the publication of the libel in.question. In an action to recover damages for a libel the defendant is, doubtless, entitled to prove, if he can, that the libel was provoked by plaintiff’s libel. (Gressman v. Morning Journal Assn., 197 N. Y. 474; Hamilton v. Eno, 81 id. 116; Xavier v. Oliver, 80 App. Div. 292.) The rule in such case is analogous to one to recover damages for an assault, but to entitle such evidence to be admitted it must first appear that the libel in question is immediately provoked by the prior libel, or so closely connected with it as to be some justification for it. (Richardson v. Northrup, 56 Barb. 105.) Here, the publications sought to be introduced were published, many of them, several years before, and the last one, as we have seen, nearly three months before the libel in question and none of them was in any way connected with it. That being so, they furnished no provocation for the libel complained of and could not properly be considered in determining the damage.

So far as the articles related to persons other than the defendants, they were, .obviously, inadmissible. But it is urged that the exclusion of the article referring to the Texas company, which it is claimed provoked the libel, was error. As a matter of fact the plaintiff himself had put this article in evidence as a part of his case, and if he had not done so and the action had been against the Texas company, it may be that it would have been entitled to put it in evidence, but this action was not against the Texas company and I am unable to see how the fact that the plaintiff may have libeled that company furnished any justification or provocation, for the defendants to libel the plaintiff in their paper. Bone of the authorities cited by the appellants sustains such a rule. In Cassidy v. Brooklyn Daily Eagle (138 N. Y. 239), what was said in the charge, according to appellants’ own statement, was simply that where one man attacks . another in a newspaper, which prints a reply from the person attacked, and then sues the newspaper for a libel contained in the reply, the newspaper has the same defense of privilege as the individual making the reply. But that is not this case, nor has the authority any application. It is rather a novel proposition that because the plaintiff had libeled a third person in his paper, that fact justified or mitigated the defendants’ misconduct in libeling the plaintiff.

The court charged the jury that the plaintiff was entitled to compensatory damages, that is, the damages actually sustained, and that nothing which the defendants could show could reduce or mitigate them. There seems to be some confusion, due doubtless to the use in the statute of the words “ mitigating ” and “ mitigate ” (Code Civ. Proc. §§ 535, 536), as to whether the actual damage sustained by reason of a libel can be reduced or mitigated. The statute permits a defendant to prove, in an action for libel, “ mitigating circumstances.” This is for the purpose of enabling the jury to determine the actual damage suffered, and not for the purpose of reducing or mitigating such actual damage, when once ascertained. The jiiry must consider the evidence as to mitigating circumstances with the other evidence and after such consideration determine the actual damage sustained by the plaintiff. Once that damage has been found it cannot be reduced or mitigated. Here, there, were . no mitigating circumstances for the jury to consider, and the charge, if erroneous, was subsequently cured. For the reasons already stated, the evidence offered by the defendants to show provocation was properly excluded and there was no evidence of this kind before the jury. The only other defense was justification -and it' has been held by this court that “if the publication is not justified, the plaintiff is entitled to recover his actual or compensatory damages in any event. There can be no mitigation of this kind of damages.” (Wuensch v. Morning Journal Assn., 4 App. Div. 110 ; Young v. Fox, 26 id. 261.)

It is true, as pointed out in Gressman v. Morning Journal Assn. {supra) that “if some of the things said of the plaintiff were shown to be true, their truth, if establishing misconduct, should be allowed to affect the amount of the damages, which, otherwise, the jurors would be minded to award.” It is an inapt and incorrect expression to say actual damages may be mitigated by proving part of an article true, because whatever truth there may be in a libel does not, in a legal sense, damage the plaintiff, and it is for this reason that it is always proper for a jury to consider that portion of the article which is true'for the purpose of determining what the actual damage is. But this was made plain to the jury when the defendants’ counsel requested the court to charge “ that even a partial justification of the alleged libelous article may be considered by the jury in mitigation of damages,” to which the court responded : “ Yes, I so charge. In so far as the defendants have proved this article true, you may consider it.” Inasmuch as the article contained several distinct libels, this instruction was broader and more favorable to the defendants than it should have been under the rule laid down in the Gressman case. There the court w^as requested to charge that “ in reduction of compensatory damages the jury may consider each and every statement in the article which is proved to be true.” This request was refused, the trial judge stating that “ compensatory damages can never be reduced if the defendant’s liability be fixed.” As already indicated, the Court of Appeals held that the jury might properly consider -how far the truth of portions of a libelous article reduced the damages which otherwise would have resulted from the libel. But it also held that since the libelous article contained at least two distinct libels, the truth of one of which would not affect the damages sustained as the result of the other, the request to charge was too broad and was properly refused, the judgment in favor of the plaintiff being affirmed. Under this authority the instructions to the jury on the subject of damages were more favorable than the defendants were entitled to and the charge in this respect does not present reversible error.

There are two other questions which require consideration. The court refused to charge “ that the jury may not render a verdict against the defendants Ludorff and Schoder, unless they find that these defendants knew of the publication before it was published in The American• Bottler and took some active part in having it published therein.” This request was too broad and was properly refused. The court did charge that the jury must find that these defendants were the managers of the newspaper and if they knew that the article was to be published and took no steps to prevent its publication, having the power to do so, they should be held responsible.

It is also claimed there was no evidence connecting the defendant Ludorff with the publication and that .the motion to 'dismiss the complaint as to him should have been granted. The evidence is • rather unsatisfactory but it did appear that he was an officer of the defendant corporation and had brought an action against the plaintiff in which he alleged, in his complaint, that he was one of the managers of the paper. This was some evidence connecting him with the publication, and in view of the fact that he was present at the trial and did not contradict such evidence, justified the verdict of the jury against him.

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

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Judgment and order affirmed, with costs.  