
    Mary K. Morse, Respondent, v. Press Publishing Company, Appellant.
    
      JAbel—a demurrer lies to matter alleged in mitigation of damages—what matter may he so allegedt
    
    Under section 508 of the Code of Civil Procedure, a demurrer lies to matter tending to mitigate or reduce damages, pleaded in an action of libel as a partial defense.
    If any fact thus pleaded is competent, a demurrer to the whole defense is not well taken.
    Where the complaint alleges that the article in question, in commenting upon the relations which existed between the plaintiff and the man whom she subsequently married, charged the plaintiff with unchastity, allegations contained in the answer that the plaintiff had' obtained a divorce from her former husband, -and that the man whom she subsequently married had been divorced from his wife, and that both actions for divorce were fraudulent and collusive, and that these facts were known to the defendant prior to the publication of the article, is competent in mitigation of damages.
    Appeal by the defendant, the Press Publishing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of April, 1901, sustaining the plaintiff’s demurrer to the second defense contained in the amended answer.
    
      John M. Bowers, for the appellant.
    
      Clinton E. Bell, for the respondent.
   Ingraham, J.:

This action was brought to recover damages for a libel and the question before us is upon a demurrer to certain allegations in the answer which are designated “a second, separate and distinct defense to the alleged cause of action in the amended complaint contained, and in mitigation of the alleged libelous matter therein contained.” The complaint alleges that the libel charged that the plaintiff “ had been guilty of the offence and sin of unchastity and adultery.” When this cause was here on a former appeal we held that by the complaint the plaintiff charged that the words of libel imputed to her unchastity and adultery and that she must stand or fall by this charge ; that in the complaint the plaintiff had by her innuendoes limited and confined her charge to an imputation of unchastity and adultery; and that should the jury find against the plaintiff as to the alleged meaning of the particularized words, she must fail, for, as already pointed out, these words can have no other guilty meaning. (49 App. Div. 375.) After this decision the defendant amended its answer, setting up the defense demurred to, which demurrer was sustained at Special Term, and. it is from the judgment entered thereon that this appeal is taken. The defendant upon this appeal insists that no demurrer lies to a separate defense which alleges facts in mitigation of damages; but we think this demurrer is allowed by section 508 of the Code.' That section providés that " A partial defence may be set forth, as prescribed in the last section * * *. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a p'artia'l defence, within the meaning of this section;’.’ By subdivision 9 of section 3343 of the Code it is provided: “A ‘personal injury’ includes libel, slander, * * * or other actionable injury to the person either of the plaintiff, or of another.” It seems clear upon a demurrer to a special defense alleging matter tending only to mitigate or reduce damages in an action for libel the question is whether the matter alleged is competent to be received on the trial in mitigation of damages. (Robinson v. Evening Post Publishing Co., 39 App. Div. 525.)

The learned judge in deciding this case at Special Term held that if the defendant proved all the facts set forth in the defense the judge at the trial would not be justified in submitting them as mitigating circumstances to the jury; but we think that at least some of the facts set up in mitigation of damages are sufficient for that purpose. Whether or not all the facts alleged would be admis sible it is not necessary to discuss. If any fact thus alleged is competent, the demurrer to the whole defense is not well taken as there cannot be a demurrer to a part of a separate defense.

The alleged libel states the fact of the marriage of the plaintiff to a Mr. Morse ; the fact that both of the parties to this marriage had been married before; that the plaintiff had obtained a divorce from her husband,- and that the person tó whom she was married . was also divorced from, his wife. The truth of these facts is alleged in the defense demurred to, and as part of this defense copies of the judgment rolls in the actions in which the plaintiff obtained her divorce from her husband and in which the wife of the plaintiff’s present husband obtained her divorce from him, are annexed. It is also alleged that both actions for divorce were fraudulent and collusive and that these facts were all known to the defendant prior to March 16, 1898, the date of the publication of the alleged libel. It is further alleged in this defense that the publication was in good faith and in the public interest and without any malice whatever towards either the plaintiff or any other person, and with the honest and worthy purpose of serving the public and supplying proper items of news of current interest, and for no other purpose; and, further, in the belief on the part of the defendant that the said article or matter complained of was true, and that the defendant in publishing the said matter or article relied upon the matters alleged to have been known to it prior to date of the said publication.

As was said in Bradner v. Faulkner (93 N. Y. 518), “The determination of this question must always rest largely in the discretion of the trial judge. Facts which might justly be regarded under some circumstances to constitute a proper subject for the mitigation of damages, under different circumstances might be entirely immaterial, depending largely upon the case which should be made by the plaintiff in the action. The border line between such facts as. are properly receivable in mitigation, and those which are inadmissible for such purposes, cannot, with accuracy, be defined preliminarily to the trial. The fact that a party would be precluded from giving evidence of those mitigating circumstances which do not appear in his. answer, should lead courts to great caution in exercising the power of striking out matter pleaded, either as a whole or partial defense, and it should never be done unless, it is clear that under no possible circumstances could the matter pleaded have the bearing claimed for it.” See, also, Morgan v. Bennett (44 App. Div. 323), where it is said : “ And it has been held that the rules by which the sufficiency of a pleading is ordinarily determined cannot be applied in all of their strictness to a partial defense pleaded by way of mitigating circumstances.” The publication upon which this action is founded is alleged by the plaintiff to charge unehastity, and the right of the plaintiff to recover damages depends Upon the construction to be given to the publication as a whole. It is from its comments upon the relations that existed between the plaintiff and "the person whom, she subsequently married, that it is sought to foe inferred that her characterization of the publication' is correct. The question as to whether or not the publication bears the construction placed upon it by the plaintiff is a question to be 'determined upon the trial, and I do not think that it can be said on ¡demurrer that a truthful statement of the circumstances surrounding the litigation which resulted in the plaintiff’s obtaining a. divorce from her former husband, and the relation that existed between the plaintiff and the man that she subsequently married before the divorce was obtained, and which were known- to the writer of the article, is not competent upon the question as to the real meaning ¡of the publication complained of, but I do not think that there is any doubt but that these facts which the writer of the article had in mind when he wrote it are competent evidence upon the question of actual ¡malice. - The plaintiff would be entitled to an instruction to the jury that if they found the defendant guilty of actual malice, they could give her punitive damages, and upon this question, of actual .malice the defendant would be entitled to present to the jury just what knowledge had been communicated to its responsible officers as 'to the circuinstances surrounding the relations that existed between "the plaintiff and her husband and the plaintiff and the person whom she subsequently married. Thus, Judge Peckham, in Mattice v. Wilcox (147 N. Y. 634) says: “ Mitigating circumstances are those which, while not proving thé truth of the charge, do yet tend in some ¡appreciable degroe towards such proof and thus permit of an inference that defendant was not actuated by malice in his charge. 'They must be of such a nature as to show that defendant, though .mistaken, ¡believed the charge to be true when it was made. The mitigating facts must be connected with or bear upon the defamatory ¡charge. * * * The circumstances must otherwise be ¡such as tend to disprove malice by showing that the words were ¡¡spoken in .the honest belief that they were true, with some reason for such belief and without actual malice or evil design.” (See, also, Morgan, v. Bennett, supra ; Hatfield v. Lasher, 81 N. Y. 246.) If the facts alleged in this separate defense are proved, the substantial truth of the article published, except so far as it contains the charge of unchastity, is established, and certainly in" determining the question as to whether the publication as a whole was actuated by actual malice, it would be most material for the jury to have before it a knowledge of how far the facts alleged in the publication were true and were within the knowledge of the author of the article complained of. If there was absolutely no authority for the article as a whole, if the- plaintiff never had obtained a divorce from her former husband, and if she had no relations of any kind with the person that she afterwards married, and the defendant had manufactured the whole story without any information upon the subject, a very different question would be presented upon the question of actual malice than if all of the facts contained in the publication were true, except the inference of unchastity upon which the plaintiff’s cause of action is based.

I think, therefore, that the learned trial judge was not justified in sustaining the demurrer to this defense, and that the judgment appealed from should be reversed, with costs, and the demurrer overruled, with costs, with leave to the plaintiff to withdraw the demurrer on payment of costs in this court and in the court below.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred; O’Brien, J., concurred in result.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.  