
    Edward H. Van Ingen, Respondent, v. The Mail & Express Publishing Co., Appellant.
    (New York Common Pleas
    General Term,
    November, 1895.)
    A publication of and concerning a party, and so understood by those who-knew him, t-o the effect that he was engaged in collecting a large sum of money in England to influence an election here, if false, is libelous-per se,- as tending to expose such party to infamy and the scorn, hatred and contempt of others.
    Such a publication is not the less, libelous because it does not designate such party by name, if by intrinsic reference the ■ allusion is made apparent. . ,
    
      Plaintiff was the head of a New York house dealing in foreign and domestic woolen goods, and was accustomed to visit its London branch and assume charge thereof during his stay, and was, in fact, so engaged at at the time of the publication in question. It also appeared that no other New York firm in the like business had a London branch. Held, that these facts were sufficient to sustain a finding that plaintiff was the person referred to in an alleged libelous publication concerning “the London head of a large New York firm of cloth jobbers.”
    Where evidence of an oral agreement of settlement of a similar action •against other parties for the same defamatory matter, by the giving of a written apology and payment of a sum to be named by the court, has been elicited on the cross-examination of the plaintiff, evidence as to what was said and done at the time by the several parties to such agreement is admissible to further explain it and is not obj ectionable as hearsay. An inquiry as to whether there is any other person who is the London head of a New York firm of cloth jobbers calls for a fact, and not a conclusion or opinion.
    Error, if any, in the admission of a cablegram and prior publications in other newspapers of the alleged libelous matter, which named the plaintiff, is cured by an instruction to the jury that they should be disregarded in determining whether the allusion in the publication in question was to the plaintiff. !
    Where the court has charged that exemplary damages cannot be recovered, it is not error to refuse to charge that the prior publication of the same matter in other papers must be considered in mitigation of damages, as the plaintiff is entitled, at least, to compensatory damages.
    To entitle a person to maintain an action for libel it is not necessary that he should have, prior to the publication, attracted general notice under the specific appellation used in such publication, but it is sufficient if , the allusion was such that those who knew him were reasonably justified in concluding that he was the person intended to be accused,
    Appeal from a judgment entered upon a verdict for the plaintiff and from an- order denying the defendant’s motion for a new trial.
    Action to recover damages for libel.
    
      Joseph U. Choate, for appellant.
    
      Bevvy amin F. Tracy and Walter S. Logan, for respondent.
   Bischoff, J.

The matter for the publication of which this action was brought appeared in the defendant’s newspaper, the Mail <& Express, issued upon the afternoon of November 1, 1892, and read as follows:

“ Beitish1- Gold to Help Cleveland. •

Democrats and Thevr English AUies Attem/pt to Purchase Yotes. Americcms Will Resent the Insult.

“Not the First Time That the Claimant Has Appealed to His Free Trade Friends Across the Sea to Come tp His Assistance — The Workingmen. "Will Give Their Answer to This Diabolical Outrage To-morrow — The Closing Days of a Spirited Campaign.

“ The Cobden Club of England has apparently become tired of trying to influence United States elections in behalf of Democratic free-trade candidates by spending millions of dollars in the campaigns here, and the friends of the free trade claimant have had to hustle about Great Britain themselves to get the money which English manufacturers are willing to givé up to buy votes for their friend Cleveland, and' to kill their most hated enemy, HcKinley Bill.

“The account of the raising abroad of a great corruption fund by protection America’s enemies and free-trade Cleveland’s friends has just been' cabled over.

“ The London head of a large New York firm of cloth jobbers is reported as the leader of • this movement to get together and send • to America nearly half a. million of British gold with which to push the course of ■ the anti-tariff Democracy and its candidate for the presidency,Cleveland.

- “ To him and his representatives the mill owners of Bradford, Huddersfield and other big manufacturing and woolen jobbing centers, under representations that' only under Cleveland as president could the American market be opened to them, gave freely of their money to help the claimant’s campaign.

ft* * * ip]16 claimant’s friend in London refused to deny, to the press that he had English money to such an amount to be spent on Cleveland.”

Argument is op course unnecessary to demonstrate the meaning of the publication. That it was intended to, and did' in fact, charge an attempt by means of bribery to corrupt the elective franchise of citizens of the United States, thereby to debauch such citizenship itself, must be patent-to every one from mere inspection. The offense, because of its tendency to destroy social and political order, is regarded by all virtuous citizens with abhorrence, and exposes the person accused thereof to infamy and the scorn, hatred and contempt of others. If, therefore, the accusation, being false, was published of and concerning the plaintiff, and so understood by those who knew him (Bourke v. Warren, 2 Carr. & P. 307), it was, aside from its imputation of criminality, libelous per se and entitled the plaintiff to maintain the action without proof of special damage. Morey v. Morning Journal Assn., 123 N. Y. 207; Witcher v. Jones, 43 N. Y. St. Repr. 151; 137 N. Y. 599; 13 Am. & Eng. Ency. of Law, 297-308. It was none the less libelous that flie published accusation did not designate the.plaintiff by name if, by intrinsic reference, the allusion was pointed. Van Vechten v. Hopkins, 5 Johns. 211; Gibney v. Blake, 11 id. 54; Sumner v. Buel, 12 id. 475; Townshend Libel, § 343.

Whether or not the allusion was to the plaintiff was a question of fact (Green v. Telfair, 20 Barb. 13) which, within the rule obtaining in the trial of civil cases, was not required to be determined beyond the possibility of reasonable doubt. Hew York & Bklyn. Ferry Co. v. Moore, 1 Silvn. Ct. App. 52. The inquiry concerned the probability of the fact from the evidence (Goodrich v. Woolcott, 3 Cow. 231, 239), and scrutinizing the latter we are'of the opinion that there was justification for the jury’s conclusion that the defamatory article alluded to the plaintiff, and that it was so understood by those who were conversant with the premises; this, without reference to publications in other newspapers, to the admission of which in evidence the defendant objected.

The language “ the London head of a large Xew York firm of cloth jobbers ” was fairly susceptible- of an interpretation that the member at the time in charge of the firm’s London branch was intended to be referred to, and the testimony adduced for the plaintiff supported a reasonable inference that; the designation was applied to him. From such testimony it appeared /that the plaintiff, at the, time of the publication of the defamatory matter, was, and for many ■ years-had been, the senior member of E. II. Van Ingen & Co.,, merchants at Hew York in foreign and domestic woolen, goods, having a branch of their business at London; that the firm was prominent in and generally known to the trade as-cloth jobbers; that no other Hew York firm in the like business had a branch in London ; that for many years the plaintiff had, at regular intervals, visited his firm’s London branch,, upon which occasions he assumed charge of. the business .there and personally conducted negotiations with English manufacturers for the supply of merchandise, and that, at the very time of the publication, he was in London upon one of such visits and in charge of his firm’s business. H¿ testimony for the defendant was adduced to challenge the fact of the allusion..-

For the, reasons stated, the motions for dismissal: of the complaint and the direction of a. verdict for the defendant were, properly deniéd.

Upon cross-examination of the plaintiff, the defendant’s counsel elicited the facts that the plaintiff had previously .brought an action in England against the Dalziel'l Hews .Company to recover damages for the publication of the same defamatory matter, and, that it yas orally agreed in court, by the parties and their solicitors and .counsel, pending the trial. thereof before the lord chief justice, to compromise the action upon the tender by the defendant of a written apology, to be-approved by the court, and the payment, in addition to the costs, of a sum for damages also to be named by the court. Having maintained the relevancy and materiality of this testimony by inquiry into the terms of such oral agreement, and the manner in which it was carried out, the defendant could not thereafter, with consistency, object to the plaintiff’s-testimony upon his redirect examination with regard to what was said and done at the time, by the several persons concerned in the making of the agreement and its performance, since only

L from such statements and the concomitant acts of the persons making them could, the terms of the compromise agreement be accurately ascertained. Obviously, the inquiry upon the redirect examination ■ was aimed to show only that certain statements were1 made and certain acts done, with the purport of still further showing what the agreement entered into and performed was, and not to ascertain whether or hot the substance of what was said or written at the time was, true or false in point of fact. Keither the apology nor the statements of the lord chief justice were, therefore, objectionable as hearsay evidence. Underhill Ev. § 51.,

Interpreting the inquiry addressed to the plaintiff upon' his direct examination, “ Is there any other person whatever^ than yourself, who is the London head of a Kew York firm of cloth jobbers % ” as calling upon the witness to say whether or not any other Kew York firm of cloth jobbers maintained a branch of their business at London, in the charge of a member, it did not necessarily call for the statement of a mere conclusion or opinion. The subject-matter of the inquiry was open to the objective perception of one acquainted with the merchants of both cities, as the plaintiff was shown to be. Sweet v. Tuttle, 14 N. Y. 465, 471; Knapp v. Smith, 27 id. 277, 281.

The defendant’s editor, called as a witness for the plaintiff, testified, under objection on the ground of immateriality, that the article published and complained of was written under his direction and that the cable therein referred to was an alleged cable published in several morning newspapers of the same, day. Copies of the newspapers alluded to were identified by the witness and the alleged cable, ■ which named the plaintiff, admitted in evidence under the like objection of the defendant’s counsel. We are of the opinion that the evidence was admissible to show actual malice of the defendant; but assuming it to have been inadmissible for any purpose, the error of its admission was cured by the instructions to the jury, made at the request of the defendant’s counsel, that -in determining whether, or not, the -allusion in the publication complained óf was to the plaintiff, they must disregard all evidence of the publication by others of the samé matter. Chesebrough v. Conover, 140 N. Y. 382, 389. The instruction to disregard the evidence admitted under objection and exception was equivalent to a direction that it be stricken from the record. Holmes v. Moffat; 120 N. Y. 159, 162.

The testimony of the plaintiff’s witness Willis, which was to the effect that, the plaintiff held a leading position- in the trade for many years, was material as tending to identify the plaintiff’s firm with the “ large New York firm of cloth -jobbers ” alluded to in the publication complained of.

The question asked of Leahy, the plaintiff’s partner, and a ■witness called in his behalf, with reference to the, London house of E. H. Vah Ingen & Co., And who is the head of that?” called for a fact and not a conclusion. Sweet v. Tuttle, supra ; Knapp v. Smith, supra. The further question addressed to the same witness, Do you know of any other London head of a" New York- firm of cloth jobbers ? ” called for an affirmation or negation of knowledge only, and was not objectionable .upon that ground.

■ No error resulted from the court’s refusal to charge “ That the publication of other similar articles, in other papers ' immediately prior to the publication of the article complained of is a matter the jury must consider in mitigation of damages ; ” and that the fact that the same matter, substantially, was published extensively in the morning papers of the same day is to be considered by the jury in mitigation of damages.” The plaintiff, upon pijoof of the libel, was at least entitled to compensatory damages, and 'the court having instructed the jury that exemplary damages were not to be awarded, a.charge as requested by the defendant’s counsel would have been irrelevant' and misleading. Witcher v. Jones, 43 N. Y. St. Repr. 151; cases in note to McAllister v. Detroit Free Press Co., 15 Am. St. Rep. 318, 339. Furthermore, no such defense in mitigation was pleaded.■ Code Civ. Proe. §§ 508, 535, 536; Willover v. Hill, 72 N. Y. 36.

The defendant’s further requests to charge “ That unless the jury find actual malice on the part of the defendant, they can give no exemplary damages; ” and “ that actual malice consists in a willful intent to injure the plaintiff,” were plainly immaterial and irrelevant in view of the fact that the court charged that as matter of law the plaintiff was not entitled to exemplary damages.

The court substantially charged the defendant’s eleventh and twelfth requests in the following' language : “ That the defendants are not responsible for anything, whether in any other newspaper, or for any damage done to plaintiff by any' such other publication.”

Obviously, the request, to charge “ That it is necessary for the plaintiff to prove to the satisfaction of the jury that the plaintiff was known as ‘the London head of a large New York firm of cloth jobbers ’ before they can find a verdict for the plaintiff,” was properly refused. It was not necessary to the maintenance of the action that, before the defamatory publication, the plaintiff had attracted general notice under the specific appellation which the defendant may have conceived for the occasion. The pertinent and material inquiry for the jury was whether, or not, the allusion to the plaintiff by whatever description Avas such that those who knew him were reasonably justified in their conclusion that he was the person intended to be accused. Bourke v. Warren, supra; approved in Miller v. Maxwell, 16 Wend. 9, 18.

The judgment and order appealed from should be affirmed, with costs.

Daly, Oh. J., and Bookstaveb, J., concur.

Judgment and order affirmed, with costs.  