
    Martin J. McMahon, Respondent, v. New York News Publishing Company, Appellant.
    
      label-—punitive damages where the publication was recklessly made.
    
    
      It seems, that the judge presiding at the trial of an action for libel may properly charge the jury that, while there was no evidence of any actual or express, malice on the part of the defendant, they might award punitive damages if they found that the article was published ‘ ‘ recklessly, carelessly and wantonly, and in. disregard of the truth or of the rights of the citizens who would be affected by an article of this kind ” — that even if such a charge- was erroneous, the error was cured by a subsequent charge, made at the request of the defendant’s counsel, that punitive damages could not be awarded unless “ the publication was wantonly and recklessly made, without due investigation into the truth of the publication already made of that libel.”
    Appeal by the defendant, the Few York Fews Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 21st day of October, 1899, upon the verdict of a jury for $16,500, and also from an order entered in said clerk’s office on the 12th day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Delos McCurdy, for the appellant.
    
      John C. Robinson, for the respondent.
   McLaughlin, J.:

This action was brought to recover damages for a libel.. The plaintiff had a verdict for $16,500, which the defendant moved to set aside, and for anew trial, and the motion was granted unless the plaintiff, within twenty days thereafter, stipulated in writing to reduce the .verdict to $7,500. Within the time named the. plaintiff- stipulated to reduce the verdict to $7,500, and from the judgment thereafter entered for that amount, with costs, and an order denying a motion for a new trial, the defendant has appealed. It insists that the judgment, should' be reversed because the trial court erred in ebatg*ing the jury that it might award punitive damages without evidence of any actual or express nialice.” We have read the charge as set out in the record, and are unable to tind that the jury were instructed as claimed by the. appellant’s counsel. What the court said was that if the jury believed that the publication complained of “ was made recklessly and carelessly and wantonly, and in utter-disregard of the rights of the plaintiff and of others, in utter disregard of the truth, you have a right to go further and award to the plaintiff, as a punishment to the defendant, what is known in law as vindictive or exemplary damages as an example and warning to the defendant and others following the same line of business to refrain from, recklessly or wilfully or wantonly publishing libels concerning citizens. * * •-* Now, gentlemen, of course there is no evidence of any actual or express malice on the part of this defendant, or any of its officers, agents or employees- against this plaintiff. There is no evidence that any of them knew him or entertained any ill-feeling towards him. But that is not essential in order to justify a jury in awarding exemplary damages. The defendant is a corporation. It is responsible for whatever is published in its newspaper, and if it allows publications to be made in that paper which libel citizens, and allows the insertion of those publications in reckless and wanton disregard of the individual rights of citizens, and in utter disregard of the truth, without making proper investigation, a-jury may award exemplary damages to the plaintiff, -not to compensate him for his injury, but by way of punishment against the defendant. So that you will see, gentlemen, this question as to whether exemplary damages are to be awarded here, is one of fact depending upon conflicting evidence, * * * ; depending on whether you believe this insertion was made recklessly, wantonly, carelessly and in disregard of the truth or of the rights of the citizens who would be affected by an article of this kind. * * *”

This falls far short of saying that the jury “ might award punitive damages without evidence of any actual or express malice.” On the contrary, they were expressly instructed that they could not award punitive damages unless they found that the publication was recklessly, maliciously and wantonly made. But even conceding that the court charged as claimed by the appellant’s counsel, the error was corrected by a subsequent charge, made at the request of the appellant’s counsel, that “ Before the jury can find punitive damages against us, * * * they must find as a fact that the publication was wantonly and recklessly made, without due investigation into the truth of the publication already made of that libel.” This was a correct statement of the rule of law applicable to the subject. (Samuels v. Evening Mail Association, 75 N. Y. 604, reversing judgment on dissenting opinion, 9 Hun, 294; Holmes v. Jones, 147 N. Y. 59.)

In Samuels v. Evening Mail Association (supra), Davis, P. J., dissenting from the opinion affirming the judgment at General Term, said: “ The plaintiff in an action of libel gives evidence of. malice whenever he proves the -falsity" of the libel. It becomes' then, a question for the jury, whether the malice is of such a character as to call for exemplary or punitive damages; and that question is not to be taken away from the jury because the defendant gives evidence which tends to show that there was in fact, no actual malice. When lie gives no such evidence it is the duty of the court to say to the jury that upon proof of the falsity of the libel, the plaintiff is entitled to exemplary damages in their discretion. (Tillotson v. Cheetham, 3 Johns. 56 ; and see opinion of Kent, Ch. J., in same case; Taylor v. Church, 8 N. Y. 452, where the rule of Tillotson v. Cheetham is approved ; Hunt v. Bennett, 19 N. Y. 173.) But where he gives evidence tending to prove the absence of actual, malice, then it is the duty of the judge to submit to the jury -the qiiestion, as one of fact, whether such malice existed in the publication.” The Court of Appeals (75 N. Y. 604) reversed the judgment on the dissenting opinion, thus recognizing and approving the rule as stated by Judge Davis. And as late as 1896, in Holmes v. Jones (147 N. Y. 59) that court again approved of the rule, Judge Andrews saying-: “ The publication of a libel is a wrongful act, presumably injurious to those persons to whom it relates, and in the absence of legal excuse gives a right of recovery, irrespective of the intent of the defendant who published it, and this, although he had reason to believe .the statement to be true and was actuated by an honest or even commendable motive in making the publication. But the amount of damages in an action for libel is peculiarly within the province of the jury. The' jury may give nominal damages, or damages to a greater Or less amount, as they shall determine. The jury may accord damages which are merely compensatory, or damn ages beyond mere compensation, called punitive or vindictive- damages, by way of example or punishment, when in their judgment the defendant was incited by actual malice, or acted wantonly or recklessly in making the defamatory charge.”

We do not understand that the Court of Appeals in Krug v. Pitass (162 N. Y. 154) intended to overrule these cases, or to lay down any different rule relating to punitive damages than.is therein stated. Had that court intended to do so it would have so expressed itself. Certainly it would at least have paid itself the compliment of referring to them.

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

Van Brunt, P. J., Rumsey and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.  