
    Daniel C. Potter, Respondent, v. The New York Evening Journal Publishing Company and Others, Appellants, Impleaded with Others.
    
      Libel—what statements in reference to a clergyman are actionable per se—the court is to decide—proof as to the action of the pastors congregation—punitive damages — defense of justification not inteiposed in good faith.
    
    A newspaper article, published concerning the plaintiff, a clergyman of the Baptist denomination and a pastor of one of the congregations of that church, headed, “ Minister Curses in Court,” “ ‘ You’re a--Skunk ’ says the Rev. Dr. Potter to Lawyer Clinch”’ and which charges the said Rev. Dr. Potter with having, on the trial of a judicial proceeding, instituted by the said minister to determine his right to the possession of certain church buildings belonging to his congregation, said, “ I’d like to punch that---,” and also, “I’d like to punch that damned skunk in the head,” is actionable per se, although not spoken of the plaintiff in his ministerial or clerical capacity, because it tends to deprive him of his benefice, to subject him to deposition .from his office or to present him as unfit to fill that office.
    The question whether a defamatory article concerning a clergyman would have a tendency to deprive him of his office or exhibit him as a person unfit to continue his calling must, where it arises upon the construction of the article itself, be determined by the court from the fair and ordinary meaning of the words used in the article.
    Where, upon the trial of an action based upon such libel, it is shown that the congregation called a council of other church congregations to consider as an advisory body charges against the plaintiff, and that a committee appointed by the council reported in some respects adversely to the plaintiff, the plaintiff may properly be allowed to show that his own congregation, which was an independent organization, repudiated' the report of the committee and expressed its confidence in him.
    Where it appears that the libelous article was communicated to the defendant through the telephone by a reporter, during the recess of the court in which the proceeding referred to in the article was pending, and was written out in the office of the defendant’s newspaper and was printed and circulated on the same afternoon before any attempt had been made to verify the reporter’s account, the court may properly refuse to charge the jury that they can not award punitive damages and that there is no evidence of actual malice.
    The court may properly charge that if the jury find that the defense of justifi cation interposed by the defendant “has not been sustained, you may also consider the motives which led to the setting up of tha't defense, and if you should conclude that'the defendants did not act in good faith when thus claiming the truth of the publication, this would afford you ground for an increase of the amount of exemplary damages, if any are awarded,” where it appears that there was some evidence from which the inference of bad faith could be ■' drawn, namely, that the defendant, at the request of the plaintiff, had published a refutation of the article and had set up that fact in the answer.
    Appeal by. the defendants, The New York Evening Journal Publishing Company and others, from a 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 March, 1901, upon the verdict of a jury for $6,500, and also from an order, bearing daté the 8th day of March, 1901, and entered in said clerk’s office, denying the said defendants’ motion for a new' trial made upon the minutes.
    
      Clarence J, Shearn, for the appellants.
    
      Benjamin Scharps, for the respondent.
   Patterson, J.:

In this action, which- was brought to recover damages for an alleged libel,, the plaintiff had a verdict, and from the judgment entered thereon and from an order denying a motion for a new trial this appeal is taken. There were originally five defendants, namely, the Morning Journal Association, the New York Evening Journal Publishing Company, the Star Company, William R. Hearst and Charles M. Palmer. Each of these defendants denied the publication of the alleged libelous matter, thereby imposing upon the plaintiff the necessity of proving the fact of such publication. He was unsuccessful in making that proof as affecting the Morning Journal Association and Charles M. Palmer, and, in consequence, at the trial the complaint was dismissed as to them. It is urged on this appeal that the complaint should also have been dismissed as to. the Star Company and as to the defendant Hearst, upon the ground that there was no sufficient evidence to show that either of those parties published or circulated a newspaper containing the alleged libel, and that there was nothing to show that Mr. Hearst was an officer of the corporation owning and publishing that newspaper.

It is sufficient upon this point to say that an examination of the record discloses that there was enough to retain the case before the jury as to both those defendants. The relations existing between the Star Company and the New York Evening Journal Publishing Company were such as to show that the former company was virtually controlled by the latter, and the newspaper issued by the Evening Journal Company was printed upon presses belonging to the Star Company. The defendant Hearst appears to have been president of the Star Company and also president of the Evening Journal Company, and in the issue of the Evening Jowrnal newspaper con-, taining the alleged libel, Mr. Hearst is referred to in the editorial ■column as follows: “ The Evemmg Jou/rnal, W. R. Hearst, 162 Nassau St., New York, Wednesday, June 2,1897.” It also appears that Mr. Hearst drew checks upon the bank account of the Star Company, in which account the moneys of the Evening Journal Publishing Company were deposited.

The matter complained of as libelous or defamatory was contained in an article published in the New York Evening Jou/rnal on June 2, 1897. The plaintiff was a clergyman of the Baptist denomination and the minister of what was known as the Tabernacle Baptist Church in the city of New York. A dispute had arisen between the plaintiff and other persons concerning the right to the possession of certain church buildings of the congregation or society of which he was the pastor. Those difficulties culminated in an action or judicial proceeding brought by the plaintiff against the New York Baptist Mission Society and others in the District Court in the fourth judicial district of the city of New York, and that action came on for trial in that court in May, 1897, and was continued from time to time, and was on trial before the justice of that court on the 2d ■of June, 1897. On the afternoon óf that day there appeared in the New York Evening Jou/rnal an article relating to the plaintiff, which article was headed in bold and heavy type with the following "words: “ Minister Curses in Court.” “‘You’re a--Skunk,’ says the Rev. Dr. Potter to Lawyer Clinch.” The article then proceeds to describe a .scene stated to have occurred in the Fourth District Court “ this afternoon.” A suit of the plaintiff against the Baptist Mission Society for the reinstatement of the plaintiff in the-mission house was mentioned, and the article proceeded to charge further that the plaintiff said, I’d like to punch that —:— --; that when recess of the court was ordered the plaintiff, in a-towering; rage, shouted, “ I’d like to punch that damned skunk in the head.” The plaintiff alleges in his complaint that in and by the article-complained of he was charged and accused of having used as an individual and as a duly ordained minister of the gospel, in a public-place and in the hearing and presence of many persons, the language above quoted, which the appellants now contend is not actionable per se, because it was not spoken of the plaintiff in his ministerial or clerical capacity.

The rule that words spoken or written of any person holding an office or engaged in a trade or profession, to be- actionable in themselves must “ touch him in his office,” is not to be questioned. (Van Tassel v. Capron, 1 Den. 250 ; Keene v. Tribune Assn., 76 Hun, 488; Moore v. Francis, 121 N. Y. 199; Kinney v. Nash, 3 id. 177; Oakley v. Farrington, 1 Johns. Cas. 130.) But it is not to be implied from this rule that defamatory words charging a clergyman with vice or immorality are not actionable per se, unless such charges are made in connection with some act done or utterance made by him while in the performance of his professional or ministerial functions, as seems to be argued by the appellants here. Whatever may have been the reasoning of the court in applying-the doctrine to those engaged in secular employments, defamatory words spoken of a clergyman were held actionableyer se, because they tended to deprive Mm of his benefice, to subject him to deposition-from his office, or to present him as unfit to fill that office.' Formerly, in England, the rule applied to clergymen seems to have been-limited to those who were in orders in the Established Church, but such a rule, of course, cannot prevail in this country. - The accepted doctrine is well stated in Newell on Slander and Libel (2d ed. p-186) as follows: “ Words are often actionable when spoken of clergymen which would not be so if spoken of others. But it does not follow that all words which tend to bring a clergyman into disrepute, or which merely impute that he has done something wrong, are actionable without proof of special damage. The reason always assignedj for this distinction between clergymen and others is that the charge,' if true, would be ground of degradation or deprivation. The imputation, therefore, must be such as, if true, would tend to prove him unfit to continue his calling, and, therefore, tend more or less directly-to proceedings by the proper authorities to silence him.”

Whether an alleged defamatory article concerning a clergyman would have a tendency to deprive him of his office or exhibit him as a person unfit to continue his calling is a question, where it arises upon a construction of the article itself, to be determined by the court upon the fair and ordinary meaning of the words used in the article; or, as in any other case of construction, it is for the court to say whether the words complained of are libelous per se. In this case there is no room for doubt. The court will take judicial notice of the relation in which a minister or priest of the Christian religion stands to the church with which he is connected and to the community in which he lives so far as personal morality and the fundamental principles upon which religion is based are concerned. It requires no extrinsic proof of the disciplinary rules of any particular religious denomination to establish the fact that a minister of the gospel who breaks the Ten Commandments is unfit for his ministry or is liable to degradation or deprivation of his ministerial office. What is remarked by Parker, Ch. J., in Chaddock v. Briggs (13 Mass. 252) is appropriate. That learned judge said that ministers of the gospel are teachers and exemplars of moral and Christian duty; and a pure and even unsuspected moral character is necessary to their usefulness in the community; and so essential is that character to the salutary administration of the ministerial office that even a reputation for immorality, although not supported by full proof, might, in some cases, be a sufficient ground for a removal.

In the case at bar, the article published concerning the plaintiff makes express reference to his calling. Point and piquancy are given to the article by the headline “ Mi/nister Curses m Cowrt.” It is the fact that he was a minister that is made the most prominent feature of the whole publication. What is intended to be shown to the public is the spectacle of a minister of the gospel, in a solemn judicial proceeding, using language, -not, perhaps, technically speaking, blasphemous, according to the strict etymology of that word, but which is a violation of the third commandment.

. We have no doubt that the article complained of was properly .treated by the trial judge as libelous in itself.

Objections were taken at the trial to rulings of the court on matters of evidence, and those rulings require consideration. On cross-examination of the plaintiff he was asked many questions concerning his relations with women. The defendant was allowed to prove the fact that charges had been made against the plaintiff concerning such relations, and also concerning certain other accusations made against him of a very serious character, and which, if proved, would certainly have established that he was a grossly immoral, dishonest and unworthy person. It appeared in proof that each individual church society of the Baptist denomination is*' an independent society; that, according to the practice and usages of that denomination, an individual church may call a council of churches to consider as an advisory body matters submitted to it by the individual society or church organization convening the council or at whose instance it is brought together. It was shown that, the Tabernacle Baptist Church, in June, 1898, called such a council and that the charges made against the plaintiff were submitted to it. A committee of fifteen appears to have been appointed, a majority of which committee, after numerous hearings, made a report that certain of the charges brought against the plaintiff were sustained; that certain others were not proven, and that certain others were not disproved. The whole effect of this evidence was to show that the plaintiff had been condemned by this council as an unworthy minister and an unfit person to exercise his calling. With this evidence in the case the plaintiff undertobk and was allowed to show, in .substance, that, notwithstanding the condemnation contained in the findings of the council, his own church repudiated those findings, protested against them, and expressed its confidence in him. The ■evidence of the action and attitude of his own church was contained in certain documents, the admission of which in evidence was objected to, but they were allowed to come in under the defendants’ exception. We see.no good reason why the whole history of this investigation, if a,ny of it were allowed to come in, should not have been put before the jury. - There is proof to support the plaintiff’s contention, that the ultimate decision upon the merits of the accusations made against him, and which were before the council,, rested- with the Tabernacle Baptist Church, of which he was the pastor; and if one step in the proceeding against him was admitted as evidence of condemnation, the final step establishing his innocence in the eyes of his congregation, as a mere matter of fairness, was also proper to be put before the jury.

It is urged by the appellants that the court erred in refusing to charge the jury that under no circumstances should exemplary or punitive damages be awarded in the case, and that it also erred in refusing to charge that there was not any evidence in the case of actual malice. We do not think it was error to refuse to charge either of those propositions. There was not in this case proof of any actual, personal ill-will or malignant feeling, on the part of any one connected with the publication, towards' this plaintiff, but the right to recover exemplary damages does not arise alone from the defamatory matter being published with a malignant intent and for the express purpose of injuring the plaintiff. It is urged that the case of Krug v. Pitass (162 N. Y. 154) has proclaimed the rule of law to be in this State that punitive damages cannot be recovered in an action for libel for general malice, but only for such particular malice as existed when the libel was published and which had some influence in causing its publication, from which the inference is drawn that it is absolutely essential that there must have been some personal ill-will or actual wrongful motive inciting the public cation. Although some of the language in the opinion of the Court of Appeals in the case cited may be regarded as laying down a very broad rule, yet we think it is evident that the court did not intend that such inferences as are here claimed should be drawn from that decision. The learned judge, writing the opinion of the court, says: “ Express malice consists in such a publication from ill-will or some wrongful motive implying a willingness or intent to injure, in addition to the intent to do the unlawful act. It requires affirmative proof beyond the act of publishing, indicating ill-feeling or such want of feeling as to impute a bad motive.” In McMahon v. N. Y. News Publishing Co. (51 App. Div. 488) we had occasion to consider the case of Krug v. Pitass, and we came to the conclusion that in that case it was not intended to lay down any different Tule concerning punitive damages than that which had .been established by a line of cases in the courts of this State to the effect that punitive damages maybe awarded where there is- no evidence of actual or express malice, in the sense above indicated, if the jury find that the article was published recklessly, carelessly and wantonly and in disregard of the rights of the citizen who would be affected by the article so published. In the case at bar there was evidence from which the jury were authorized to find that the article complained of by the plaintiff was recklessly and wantonly published. The whole article as it appeared in the Evening Journal was communicated through the telephone by a reporter during the recess of the court in which the proceeding was pending, was written put in the office of the newspaper, and was printed and circulated on the same afternoon. No attempt was made to verify the reporter’s account, and the very precipitancy of the publication and the haste to'spread the charge broadcast in the community is evidence of a wanton disregard of the reputation of the accused clergyman. Undue haste and a failure to make inquiry of the plaintiff or of any one else concerning the truth of matter communicated to a newspaper before publication of such matter is made, was regarded in Turton v. N. Y. Recorder Co. (144 N. Y. 149) as being sufficient to authorize a judge to state to the jury that the article was published wantonly, recklessly and with an utter disregard as to whether it was true or false..

It is further urged as a ground for the reversal of this judgment that the court erred in charging the jury that they might take into consideration the motives which led the defendants to interpose the defense of justification as a basis for increasing the amount of exemplary damages. What the court said to the juryin. this relation is as follows: “There is another point which you should consider touching an award of exemplary damages, and this is that the defendants, by their answers, and by their evidence given at this trial, have, claimed that the article was true. If they have proven the truth of the words published^ that would end the case for the plaintiff, and your verdict should be in favor of the defendant, as I have charged you. But if you find this defense has not been sustained, you may also consider the motives which led to the setting up of that defense, and if you should conclude that the defendants ■did not act in good faith when thus claiming the truth of the publication, this would afford yon ground for an increase of the amount of exemplary damages, if any are awarded.”

The criticism made upon this charge of the trial justice is that it would have been correct if no evidence had been offered tending to .sustain the defense of justification, but that inasmuch as such evidence was offered, and as witnesses called by the defendants had testified that the language imputed to the plaintiff had actually been used by him, the damages could not be aggravated by pleading that defense, which they in good faith undertook to prove, although the jury discredited their witnesses.

Our attention has been called to the cases of Willard v. Press Pub. Co. (52 App. Div. 448; Distin v. Rose (69 N. Y. 122), and Klinck v. Colby (46 id. 427), which intimate, if they do not decide, that the failure to establish a defense such as justification is not of ■ itself evidence of malice, and cannot be resorted to in enhancement -of damages, even where the allegations made in justification are unproved, but what is said in those cases is in connection with the further consideration that the justification is not set up in bad faith. In Cruikshank v. Gordon (118 N. Y. 178) an instruction was given to the jury that where certain matter pleaded in justification of an alleged libel was unproved, if they believed it to have been published maliciously and without probable ' cause, they might consider its being pleaded in aggravation of damages. There the court said: “ The interposition of pleas ip justification is authorized by law; nevertheless, as we think we have shown, courts have quite uniformly held that if they were interposed in bad faith the jury-might consider the fact on the question of damages.” In Marx v. Press Pub. Co. (134 N. Y. 563) it was held that while a jury might not infer malice from the pleading in good faith and an honest endeavor to establish justification, the question of good faith was for the jury, and the court was justified in refusing to hold as matter of law that ■the answer could not be considered to enhance damages.

We understand the general rule to be, as charged by the court in this case, that the motives impelling a defendant to set up matter in justification which is not proved may be considered by the jury in aggravation of damages. It cannot be said in this case that the instruction was entirely foreign to any matter involved in it, and that,' therefore, there was no ground upon which an inference of bad faith in the reiteration of the libelous matter by allegations of the answer could be raised. The record is not. without some evi-

dence from which the inference of bad faith might be drawn. The defendant, at the request of the plaintiff, had published a refutation of its article and had set up that fact in the answer. The instruction of the court upon this subject contained a correct statement of the law, and there was enough before the jury to permit the particular instruction to be given. Ho request was made by the defendants to present any different or other phase of the matter than that contained in the instruction as given.

On the whole case we are of opinion that the damages were not éxcessive, and that the judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  