
    Ferdinand Griebel, Respondent, v. The Rochester Printing Company, Appellant.
    
      Libel — reading to the jury from a report of the case on a former trial — measure of damages.
    
    Where the complaint in an action for libel contains no allegations of special damage or of malice, and it appears upon the trial that the publication, which was admitted, had resulted from the error of a reporter, which was corrected in the next issue of the newspaper of the defendant, it is erroneous for the court to permit the counsel for the plaintiff to read to the jury, as a part of his summing up, an extract from a former published opinion”relating to the case, which tended to induce the jury to believe that the plaintiff had, as matter of law, a right to recover substantial, as distinguished from nominal, damages.
    Appeal by the defendant, The Rochester Printing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 18tli day of January, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      Eugene Van Voorhis, for the appellant.
    
      Walter S. Hubbell, for the respondent.
   Follett, J.:

This action was begun May 22, 1888, to recover damages for the publication of an alleged libel. A judgment dismissing the complaint, entered on a verdict, was reversed and a new trial granted by the General Term in June, 1891. (60 Hun, 319.) On the second trial a judgment dismissing the complaint, entered on a verdict, was reversed and a new trial granted by this court in July, 1896. (8 App. Div. 450.) The judgment now under review is the result of the third trial.

It is unnecessary to state the facts out of which this case arose, as they are fully stated in the reports referred to. The publication of the libelous article complained of was admitted, but facts in mitigation of the damages were proved. The only question for the jury was how much the plaintiff was entitled to recover, and the case was correctly submitted to the jury under instructions that this was the only question for consideration.

The record discloses that when the plaintiff’s counsel summed up the case, the following occurred: In addressing the jury, counsel for plaintiff desired to read from a law book. Counsel for the defendant objected to reading the former report of this case to the jury. Counsel for plaintiff thereupon stated: I am not going to read anything as the law, only to use the language without giving the names.’ The objection was overruled and defendant excepted. Counsel for plaintiff thereupon addressed the jury as follows: ‘ I am not reading from an'y law book as a law book, but simply using the language of the book. As I was stating before, a verdict of a nominal amount would be a travesty upon justice. In such a case a nominal verdict would be a denial of justice, and the court was not bound to assent to the suggestion of the defendant that such a verdict might he given, nor would such a verdict have been a vindication of the plaintiff. It would have established that the charges were false, but at the same time it would have left it to be inferred that the plaintiff had no character to lose.’ (60 Hun, page 322.) The book and page were given by counsel for defendant, and not stated by counsel for plaintiff.”

It was not alleged in the complaint nor proved on the trial that special damages were sustained, nor was it alleged in the complaint or proved on the trial that the publication was actuated by malice in fact, personal ill-will entertained by the writer of the article towards the plaintiff, or by any person connected with the newspaper in which it was published. On the contrary, it appears by undisputed evidence that the statement that the plaintiff in this action was the defendant instead of the complainant in a criminal action was the error of a reporter which was corrected in the next issue of the defendant’s newspaper. Subject to the right of the court to set aside the verdict for excessive or insufficient damages, the question of how much money would compensate the plaintiff for the injuries sustained was solely a question for the jury. The extract read by plaintiff’s counsel to the jury from the opinion reported in the 60th volume of Hun, at page 319, was not germane to this question of fact. On the trial under review, in the 60th of Hun, the court charged : “If you find that a libel was published by defendant against the plaintiff, but that it was published without any malicious intent, then, although it would be your duty to find a verdict in favor of the plaintiff, yet, under these circumstances, he would be entitled to recover only nominal damages, because he has not shown that he has received any special damage by reason of the publication.” To this instruction the plaintiff’s counsel excepted. The plaintiff’s counsel requested the court to charge : “ That if they (the jury) should find that the publication was made without malice, but as a matter of pure mistake and without malice, the plaintiff was still entitled to damages which would compénsate him for whatever damage was done to his reputation.” This request was refused, the court saying: “ There is no evidence of any damage which the plaintiff has sustained.” To this refusal the plaintiff excepted. The extract read to the jury related to these exceptions, and the learned judge was demonstrating that the court erred in charging, as a matter of law, that only nominal damages were recoverable, and the language throws no light upon the duty of the jury in respect to the amount of damages which they should award. The extract read from this opinion had a tendency to induce the jury to believe that, as a matter of law, the plaintiff had the right to substantial, as distinguished from nominal or compensatory, damages.

Permitting counsel in summing up a case to read to the jury text books and reports of cases, if objected to by the opposing counsel and an exception is taken, has often been condemned and held to be error by the courts of this State. (Reich v. Mayor, etc., 12 Daly, 72 ; Vosper v. Mayor, etc., 17 J. & S. 296 ; Bell v. McMaster, 29 Hun, 272; Lesser v. Perkins, 39 id. 341; Ryan v. Porter Manufacturing Company, 57 id. 253 ; Williams v. B. E. R. R. Co., 126 N. Y. 96.)

The decisions of other States on this question and a general discussion of the subject may be found in 1 Thompson on Trials, 720, title 4, chapter 29.

Permitting counsel to read a general discussion on a question from text books and reports is quite different from permitting a section of a statute to be read.

For this error the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to appellant to abide the event.  