
    Stella Stafford, Resp't, v. The Morning Journal Association, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    1. Libel—Words' actionable per se.
    The following article, inserted in a newspaper as an advertisement, in a column headed : “Astrology;” “Le Huray Sisters; Blanche, Stella and Allien. Just from Paris. Massage, French style. Love secrets. How to get a husband. Inclose stamp. Valuable information for ladies by means of cards. Le Huray Sisters [address],” is libelous per se.
    
    3. Same—Evidence—Good Chakacter.
    Where, in an action for libel, the complaint alleges plaintiff’s good character, and the answer that defendant had no knowledge or information sufficient to form a belief as to the allegation, it is not reversible error to allow the plaintiff to give proof of her allegation, even if the issue was superfluous and immaterial. (Follett, J., dissents.)
    3. Same.
    In an action against a newspaper for libel in publishing a certain advertisement, it is proper to read the entire column wherein it was published, in order to show its situation and surroundings.
    4. Same—Good Faith.
    _ Where the question of the good faith with which an article was published as an advertisement, in the belief that it was authorized by plaintiff, is at issue, it is proper to allow evidence to show that defendant’s manager had refused to exclude similar advertisements, and had charged therefor a higher rate than for ordinary advertisements.
    6. Same.
    Evidence of letters of an insulting character received by plaintiff, and of visits made by men in the night time to her residence, is competent to show in what sense the advertisement was understood, although no special damage on this account was alleged in the complaint.
    6. Same.
    Where it is shown that plaintiff’s brother-in-law caused the libelous advertisement to be inserted in defendant’s newspaper, evidence that shortly thereafter he had been adjudged a lunatic is competent to show the reason of plaintiff’s failure to produce him as a witness.
    Appeal from judgment upon a verdict in favor of plaintiff, and an order denying a motion on the judge’s minutes for a new trial.
    
      B. F. Einstein, for app'lt; Roger M. Sherman and James M. Smith, for resp’t.
   O'Brien, J.

The action was brought to recover damages for the publication in the Morning Journal of an article complained of as libelous, and which reads as follows:

“Le Huray Sisters; Blanche, Stella and Allien. Just from Paris. Massage, French style. Love secrets. How to get a husband. Inclose stamp. Valuable information for ladies by aid of cards. Le Huray Sisters, 444 2nd Ave., Mount Vernon. M. Y.”

The defendant did not, in its answer or on the trial, claim that this was in any sense a privileged communication, nor did it attempt to justify, but set up and proved in mitigation that the matter was published as an advertisement received from a general advertising agency in the regular course of its business, and under the honest belief that it was authorized by the plaintiff; that, when it was informed by plaintiff’s husband that it was unauthorized by her, it at once offered to publish any retraction or explanation or correction in the columns of its newspaper, which offer was declined. The trial resulted in a verdict for $10,000, and all the questions presented upon this appeal relate to the exceptions taken-to the admission or exclusion of evidence, and to requests to charge proposed by plaintiff, and to refusals to charge as requested by defendant. It is not claimed that the verdict is so large as to indicate that the jury were influenced by passion, partiality, prejudice or corruption, and having in mind the rule that damages in cases of this kind are largely within the discretion of the jury, and regard being had to the nature of the libel, we do not think that we should disturb such verdict upon the ground that the damages were excessive.

The first exception urged is the permitting evidence to be given of the general reputation of the plaintiff for chastity and virtue. The complaint alleged that plaintiff was of “good character and repute, and enjoyed the respect of her friends and acquaintances, and of the community.” ' The answer stated that the defendant had “ no knowledge or information sufficient to form a belief as to the allegations contained in the first paragraph of said complaint.” Notwithstanding the issue thus presented, it is claimed that the evidence given by plaintiff in support thereof should not have been received; that this, being a superfluous and immaterial allegation, invited the denial, which was equally immaterial, thus rendering the issue itself immaterial, with respect to which the evidence could not have been received. We do not regard it as entirely clear that plaintiff was bound to rest upon the legal presumption as to her good character, in view of the issue thus raised, but if we assume that the appelant is right, and that the issue was a superfluous and immaterial one, no injury resulted to the defendant from such proof, because, apart from any testimony, the plaintiff would have been entitled to have the court charge that the law presumed her good character, in the absence of any claim or testimony to the contrary, was established; and we have been referred to no case wherein a judgment has been disturbed for admitting evidence in support of a fact which the law presumed.

The next exception relates to questions asked of plaintiff, upon her redirect examination, directed to eliciting information as to whether or not her mother had succeeded in getting rid of the lease of the house in Mt. Vernon, and what difficulty was experienced in finding a place for the sister. It is true that neither the mother nor sister was a party to this action; but, when we consider the justification afforded by the defendant for such testimony, we do not think that it can be regarded as a violation of the discretion vested in the court in extending somewhat the scope of plaintiff’s testimony. The defendant had indulged in a cross-examination which was directed to discrediting the plaintiff’s testimony relevant to her sufferings from the publication, by showing that thereafter she continued to reside at the place mentioned in the advertisement. We think that the inference thus sought to be raised against the plaintiff it was proper to rebut, on redirect, by allowing plaintiff to state the efforts v/hich her mother had made to remove therefrom, and the impediments, among other things the sister’s sickness, which delayed such removal.

The third exception relates to the introduction of the column in the defendant’s paper headed “Astrology,” and in which column the libelous advertisement referring to plaintiff was published. This exception we regard as untenable; for, as said in Kingsbury v. Bradstreet Co., 116 N. Y., 215; 26 St. Rep., 520, “the situation and surroundings of the most innocent expression may make it libelous, but they must be distinctly alleged and proved. The mere position in a newspaper of an advertisement apparently inoffensive, but surrounded by suggestive items, may make it a question for the' jury whether it is libelous or not."

The next exceptions to be considered are directed to evidence relating to the connection of Albert Pulitzer with the defendant. Such evidence tended to show that he was the editor and manager of its property and assets, and was empowered to determine what advertisements should go in or stay out; that the character of advertisements similar to those published under the head of “Astrology ” was called to his attention, and that he refused to exclude them from the paper; also, that prior publications, substantially in the same form, appeared in the “Astrology ” column, for which a higher rate was charged than for other kinds of advertisements. Where, as here, the question of the good or bad faith with which a libelous article was published was at issue, the bearing that notice or knowledge of the character of such advertisement would have thereon rendered, we think, such testimony competent

The next exception relates to the excluding of certain questions asked by defendant on recalling plaintiff, as to what her husband told her as to his object in going to the office of the Morning Journal. Considering the order of proof, which is always in the discretion of the court, and the absence of any good argument advanced for holding the plaintiff bound by her husband’s conduct, or by the object which, he had in view in visiting the office of the defendant, we do not think that the excluding of such evidence was error.

. _ The next exceptions relate to the testimony admitted of letters of an insulting character received by the plaintiff, and also of visits made by men in,the night time to plaintiff’s residence. It is true that no special damage upon this ground was alleged in the complaint; but we think it was competent to show in what sense the publication was understood by persons who, either by sending letters, or making untimely visits in the night, annoyed and insulted the plaintiff.

The defendant, upon the close of plaintiff’s case, moved to dismiss the complaint, and again, at the close of all the testimony, asked for a direction of a verdict in its favor, upon the ground that the article was not libelous per se. We think that the denial of both these motions was right, and, in view of the very satisfactory discussion of all the questions involved upon both motions, to be found in several recent cases" in the court of appeals upon the subject of libel, we deem further discussion unnecessary. Moore v. Francis, 121 N. Y., 203; 30 St. Rep., 467; Morey v. Morning Journal Ass'n, 123 N. Y., 211; 33 St. Rep., 49; Hughes v. Jones, 116 N. Y., 73; 26 St. Rep., 511; Warner v. Press Publishing Co., 132 N. Y., 181; 43 St. Rep., 633.

In addition to these exceptions, which we have thus briefly referred to, a great number are presented by the refusals to charge as requested by the defendant, and to exceptions taken to requests as made by the plaintiff. These we have considered, and fail to find that any error was committed in the rulings of the trial judge, who not only passed upon an unusual number of requests presented by defendant, but, in a fair and impartial charge, presented every question in a manner as favorable as defendant could legally demand.

The most serious exception urged upon our attention is that relating to the admissibility of the inquisition and adjudication that one George H. Storrs was a lunatic. It was shown that this man, who was the husband of plaintiff’s sister, was responsible for the insertion of the libelous advertisement. His relation to the plaintiff, had he not been produced, would naturally have been commented upon unfavorably; and we do not understand that the appellant contends that it was incompetent to show that at the time he presented the advertisement he was a lunatic, thus rebutting any inference that it was authorized in any way by plaintiff. The claim, as we understand it, is that the acts of Storrs, given in evidence, were prior to April, 1890, while the inquisition and adjudication that he was of unsound mind were in January, 1891. The record shows that the commissioners to inquire as to whether Storrs was of unsound mind, and with respect to other matters, were appointed by orders of this court - entered on July 10 and 14, 1890, some few months subsequent to the publication. It may be that such a record is not even presumptive evidence that Storrs was of unsound mind at the time he was guilty of the acts given in evidence; but upon another ground, namely, to show the reason for the failure to produce Storrs as a witness for plaintiff, we think it was competent. Upon examining the entire case, we fail to find any error sufficient to justify our interfering with the verdict, and are, therefore, of the opinion that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Follett, J. (dissenting).

I think this judgment is a meritorious one, and should like to see it sustained, but am unable to concur in its affirmance, for the reason that I think the court erred in receiving evidence of the plaintiff’s good character, it not having been assailed by the defendant. Houghtaling v. Kilderhouse, 2 Barb., 149, affirmed 1 N. Y., 530; Pratt v. Andrews, 4 id., 493; Pink v. Catanich, 51 Cal., 420; Matthews v. Huntley, 9 N. H., 146; 1 Whart. Ev., §47, and cases there cited; 1 Tayl. Ev. (8th Eng. Ed.), § 362. In an action to recover damages caused by the publication of a libel, an allegation in the complaint that the plaintiff’s character is good, and a denial thereof in the answer, do not raise a material issue. Chapman v. Pickersgill, 2 Wils,, 145-147; 1 Chit. Pl. (16th Amer. Ed.), 243 ; Moak Van. Santv. Pl., 37, 255; Townsh. Sland. & U (4th ed.), §§ 313, 314.

A plaintiff does not become entitled to support by evidence an immaterial allegation which he has alleged in the complaint because the defendant has chosen to deny it. The first fault was the plaintiff’s, in tendering the issue. Murray v. N. Y. Life Ins. Co., 85 N. Y., 236; Pink v. Catanich, supra; Abb. Tr. Brief, § 734. I agree that the reception of evidence of certain facts which the' law presumes to exist would not be error. For example, if the plaintiff should allege that the supreme court had jurisdiction to render a particular judgment, evidence that it did have, though unnecessary, would not be a sufficient ground for reversing a judgment. And so it would be in regard to many facts which the law presumes to exist. But.this is an action sounding in damages, which are largely in the discretion of the jury, and evidence that the plaintiff’s character was good would tend to greatly increase them. More than this, the plaintiff was a witness in her own behalf, and evidence of good character would increase her credit with the jury. The law presumes that witnesses are of good character. Nevertheless, it would be error for a party to show that the witnesses which he was about to call were of good character, or that witnesses that he had called were of good character, unless they had been assailed by his' adversary. The judgment should be reversed, and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.  