
    Lucien S. Crandall, Resp’t, v. Ernest R. Barron et al., as Executors, App’lts.
    
      (Supreme Court, General Term, Fourth Department
    
    
      Filed July 1, 1890.)
    
    Libel — Damages— Charge.
    In an action for libel the defendant gave evidence tending to show that, plaintiff, a married man, had lived for some years with the wife of another man. The court charged the jury as follows: “If plaintiff is a lecherous man; if he is an immoral man in his relations with women, and. he has any character left beyond that, he is entitled to have it protected. If he is a liar and a scoundrel, and is not an impure man, he is entitled to-be protected, and it is your duty and my duty to protect him.” Held, that the language of the charge was calculated to draw the mind of the jury away from the proper rule of damages.
    (Maktin, J., dissents.)
    Verdict in Cortland county circuit for $10,000; an order denying a motion for a new trial on the minutes; appeal from the order and from the judgment entered upon the verdict.
    The action was for libel and a verdict of $10,000 was rendered for plaintiff. The libel consisted in a letter written by defendant to B. Remington & Sons. Both plaintiff and the defendant (who has since died) were interested in typewriters, and the letter was called out by the defendant’s learning that the plaintiff was negotiating a sale of his patent with the Remingtons. In the letter the defendant gave a history of the plaintiff’s relations with a woman not his wife and also wrote of him as a liar, scoundrel, swindler and utter fraud.
    
      A. P. Smith, for app’lts; F. & T. F. Courtney, W. P. Goodelle and J. F. Fggleston, for resp’t.
   Hardin, P. J.

In the course of the charge delivered to the jury the trial judge observed: “ It is your duty as jurors to extend this protection not only to the man who is poor, not only to the man who is ignorant, but the meanest man in your county. Let me illustrate this by referring to a case which was tried before me. A man in Broome county sued a bridge company in Hew Jersey for negligence in consequence of which a guy rope broke while they were erecting a bridge and knocked him off from an abutment nineteen feet in height To save himself he whirled about as he was struck, striking upon his feet. He was made a cripple for life. Upon that trial the defense sought to show, and did show, that the reason why that man was crippled for life was because he was badly diseased with syphilis, claiming for that reason they were not responsible for the damage in that case. After some examination of the question I instructed the jury, and found myself thoroughly backed up by the court of appeals, that it was not for the defendants in that action to punish that man for his sins against God or against society. He was entitled to the same damages as if his life had always been a moral life ; and more than that, if by reason of his own vices he was in such a condition that his damages were greater than they would otherwise have been, he was entitled to recover greater damages than if he had been a sound man. Applying this principle to this case, if Lucien Crandall is a lecherous man, if he is an immoral man in his relations with women, and he has any character left besides that, he is entitled to have it protected. If he is a liar and a scoundrel and is not an impure man, he is entitled to be protected; and it is your duty and it is my duty to protect him. It is a solemn dnty and you must not be carried away by passion or prejudice, but remember that the beauty of our law, the purity and integrity of our courts, consist in equal and exact justice to every suitor who comes into court.

An exception was taken to that part of the charge where the ■court said “ that if Luden Crandall is a lecherous man, and ho has any character besides, that he had a right to protection, etc., and your duty is an important duty, etc.”

It seems to me that the rule laid down by the learned trial judge in that portion of the charge quoted, and the comments thereon, were erroneous, and that' the exception was well taken. The language of the charge was calculated to draw the mind of the jury aside from the proper rule in respect to damages ; it may have been prejudicial in producing the large verdict rendered by the jury. It seems to me we ought not to accept a verdict com- ' ing from a jury after such instructions delivered to them in this case. Without passing upon the numerous other exceptions found in the appeal book, I find myself constrained to vote for a reversal of the order and judgment

Order and judgment reversed and a new trial ordered, with ■costs to abide the event.

Merwin, J.-

I think this judgment should be reversed. That portion of the charge, referred to by the presiding justice, would, I think, be likely to mislead the jury. Besides, I am of the opinion that the trial court improperly, under the circumstances of this case, allowed the letter of 1883 to be read by plaintiff's counsel to the jury at the opening of the case.

Martin, J.

(dissenting) The only ground of reversal upon which a majority of the court agree is, that the exceptions taken by the defendant to the portion of the charge quoted in the opinion of the presiding justice were well taken. The whole of the charge upon that subject was as follows:

" Gentlemen of the Jury: A man has the natural right, as it is called, to protect himself, to fight for his protection. He has the right, the natural right, to protect his person, to protect his property, to protect his reputation. Writers upon social science say that when a man enters civilized society he surrenders this right of protecting himself, his person, his property and his reputation, in consideration of the agreement of society or the government to protect him. Therefore, the citizen has a lawful right, and a right founded upon a consideration, to call upon the government and the laws of His country if he is assaulted in his person, in his property or his reputation, to call for protection. It would be a worthless government which did not protect its citizens. A government extends the segis of its protection over all citizens alike; over the high and the low, the rich and the poor, the moral and the immoral. Every citizen has the same right to come into court and demand the same protection. So, gentlemen, it is our duty, it is your duty as jurors, to extend this protection not only to the man who is poor, not only to the man who is ignorant, but the meanest man in your county, in your state, has the same right as the best citizen to come into court, and you have got to give him the same protection. Let me illustrate this by referring to a case which was tried before me. A man in Broome county sued a bridge company in New Jersey for negligence, in consequence of which, a- guy rope broke while they were erecting a bridge and knocked him. off from an abutment nineteen feet in height. To save himself, he whirled about as he was struck and jumped, striking upon his feet. He was made a cripple for life. Upon that trial the defense sought to show, and did show, that the reason why that man was crippled for life was because he was badly diseased with syphilis, claiming for that reason they were not responsible for the damages in that case.
“After some examination of the question, I instructed the jury, and found myself thoroughly backed up by the court of appeals, that it was not for the defendants in that action to punish that man for his sins against God or against society. He was entitled to the same damages as if his life had been a moral life; and more than that, if by reason of his own vices he was in such a condition that his damages were greater than they would otherwise have been, he was entitled to recover greater damages than if he had been a sound man. Applying this principle to this case, if Lucien Crandall is a lecherous man, if he is an immoral man in his relations with women, and he has any character left besides that, he is entitled to have it protected. If he is a liar and a scoundrel, and is not an impuiu man, he is entitled to be protected ; and it is our duty and it is my duty to protect him. It is a solemn duty, and you must hot be carried away by passion or prejudice, but remember that the beauty of our law, the purity and integrity of our courts consist in equal and exact justice to every suitor who comes into court.” To this portion of the charge the following exceptions were taken: “We except to that portion of the charge about the case of negligence mentioned by the court as proper to this case, and what the court said upon that subject; also, where the court said that if Lucien Crandall is a lecherous man, and he has any character besides, that he had a right to protection, etc., and your duty is an important duty, etc.”

From a careful examination of the whole charge, it seems to me that the manifest purpose and effect of this portion of it was to impress upon the jury the duty of determining the question of the defendant’s liability from the evidence, uncontrolled by any extrinsic facts or circumstances which did not relate to the libel for which the plaintiff sought to recover in this action, and to instruct it that even though the plaintiff’s character was not perfect in certain respects, it did not bar the plaintiff’s right to a recovery for a libel upon his character in other respects. The language of the court in applying to the case the illustration given was: “ If Lucien Orandall is a lecherous man, if he is an immoral man in his relation with women, and he has any character left besides that, he is entitled to have it protected.” Thus the application of this illustration was limited to the statement that a person who has any character left may maintain an action for an injury to it, although his character in other respects may not be perfect. As thus limited, it was not, I think, the subject of a valid exception.

It will be observed that the court in this portion of the charge was not discussing the question of the amount of damages which the plaintiff might recover, but was simply instructing the jury as to the right of the plaintiff to maintain the action, his right to come into court and seek redress for such injury as he had actually sustained. I can discover no reason for holding that this portion of the charge was erroneous, nor do I think it “ was calculated to withdraw the mind of the jury aside from the proper rule in respect to damages.” The.court in another portion of the charge instructed the jury upon the question of damages. If the charge upon that question was not full enough or was in any way unsatisfactory to the defendant, he should have requested the court to charge more fully upon the question or excepted to that portion of the charge as made.

On the trial Mr. Courtney, the plaintiff’s counsel,, proposed to read a letter written by the defendant under the date of March 21, 1883. This letter was partially set out in the complaint and set out in full in the defendant’s answer. When the plaintiff proposed to read the letter the defendant’s counsel said : “ The letter he proposes to read is barred by the statute, and we will object to its being read in the case, and we object to it until it is admitted in the case. We object to their reading the letter in their opening. We do not object to their stating what they propose to prove. The court: Of course if this evidence is incompetent to go to the jury the court ought not to permit it to be gotten before the jury by indirection or by the reading of it in the opening. It is difficult for me to say whether this can be given before the jury or not until the question arises. Plaintiff’s counsel: It is set up in the answer in full. The court: You may read the answer. Defendant’s counsel: We except to the ruling of the court permitting them to read the answer. The court: It is stated by the counsel and conceded that this matter is set up in the answer and is justified by the special plea of justification in the answer. Defendant’s counsel: And also that the statute of limitations is set up against it.” (Answer read to jury.)

I do not think it can be properly said that this ruling was erroneous or that the court abused its discretion in permitting the plaintiff to read the defendant’s answer in opening the case to the jury. The correctness of this ruling seems to be fully sustained by the authorities. Tisdale D. & H. C. Co., 116 N. Y., 416; 26 N. Y. State Rep., 857; Holmes v. Jones, 31 N. Y. State Rep., 379, 381.

These views lead me to dissent from the opinions of my brethren in this case.

Order and judgment reversed and a new trial ordered, with costs to abide the event.  