
    Leon Bresslin, Respondent, v. Star Company, Appellant.
    Second Department,
    February 5, 1915.
    Libel — charge as to compensatory and punitive damages — finding necessary to award of punitive damages — trial — failure to specify defect in charge.
    Charge as to recovery of compensatory and punitive damages in an action for libel examined, and held, to be correct when taken in its entirety.
    “Actual” malice and “legal ” malice defined.
    A plaintiff in an action for libel gives evidence of legal malice whenever he proves the falsity of the charge.
    But in order that punitive damages may be given, the jury must find “actual malice,” or its equivalent, and it is not enough for the defendant to show that there was no actual malice in the sense of ill will, for malice which will warrant punitive damages may be found where the publication was made recklessly, carelessly and in wanton disregard of the rights of others.
    Where a charge is ambiguous, it is the duty of counsel to request that it be made clearer; it is not sufficient merely to ask the court to “ correct ” it without stating in what respects it is insufficient. And this is true, even if the counsel’s exception to the ruling of the court is sufficiently definite.
    Jenks, P. J., and Putnam, J., dissented, with memorandum.
    Appeal by the defendant, Star Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of May, 1914, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      Clarence J. Shearn, for the appellant.
    
      Julius S. Belfer [Charles J. Belfer with him on the brief], for the respondent.
   Burr, J.:

The only question in this case arises in connection with the charge. The learned justice thus instructed the jury: “So much with respect to compensatory damages. Now I come to speak of exemplary, punitive or vindictive damages or, as it is sometimes termed, ‘smartmoney.’ In order to give punitive damages,it must be proved that this publication, in addition to being false, was published either from actual malice, that is, from personal ill will entertained by the defendant against the plaintiff, as distinguished from legal malice which is deemed to accompany every invasion of the rights of another, or else that it was published recklessly, carelessly or with wanton disregard of the rights of the plaintiff. In determining this question, you may consider the nature of the publication itself, and you may compare it with the report of the representative of the news agency on which it purported to be based. In this connection, I wish expressly to say to you that the plaintiff, in an action for libel, gives evidence of malice whenever he proves the falsity of the charge. It becomes then a question for you whether the malice is of such a character' as to call for exemplary or punitive damages; and that question is not to he taken away from you because the defendant gives evidence which tends to show that there was in fact no actual malice or ill will. When no such evidence is given, the plaintiff, upon proving the falsity of the libel, is entitled to exemplary damages in the discretion of the jury. Where, however, as in this case, the defendant gives evidence tending to show absence of actual malice, then it becomes the duty of the jury to determine as a question of fact whether or not such malice did in fact exist or did not exist in the publication.”

The charge, taken in its entirety, is correct. In stating to the jury the rule relating to punitive damages, the trial justice used the expressions “actual malice,” defining it, and “legal malice,” defining it. Subsequently he said: “I wish expressly to say to you that the plaintiff, in an action for libel, gives evidence of malice whenever he proves the falsity of the charge.” It is perfectly apparent that he is here speaking of legal malice, and this statement is correct. (Newell Sland. & Lib. [3d ed.] §§ 385, 392, 401; King v. Root, 4 Wend. 113.) Not only do the words immediately preceding indicate this, but his succeeding sentence makes it absolutely clear, where he says: “It becomes then a question for you whether the malice is'of such a character as to call for exemplary or punitive damages.” That is, is the “legal malice” of such a character that you may find it to be “ actual malice.” The court had told the jury that, to give punitive damages, they must find “actual malice” or its equivalent. He was right in saying that it would not be enough for defendant to show that there was no actual malice in the sense of ill will. It might be that the character of the article, its reckless, careless and wanton disregard of the rights of others, indicated by the circumstances of this publication, would justify such a finding. (Newell Sland. & Lib. [3d ed.] § 418; Carpenter v. New York Evening Journal Publishing Co., 111 App. Div. 266.) We think that this was such an article. The concluding words of the charge, as given, left it to the jury to determine as a fact the existence of actual malice. The charge might have been a little clearer. But, if it was ambiguous, it was the duty of defendant’s counsel to have it made clearer. (Roth v. Wells, 29 N. Y. 471, 486; Caldwell v. New Jersey Steamboat Co., 47 id. 282; Jones v. Brooklyn Life Ins. Co., 61 id. 79, 86; Bishop v. Village of Goshen, 120 id. 337, 342.) To simply ask a court to “correct his charge,” without stating in what respect it was insufficient, is not available to present the question, even if the exception was sufficiently definite. (Copp v. Hollins, 9 N. Y. Supp. 57, 59.)

The judgment and order should be affirmed, with costs.

Stapleton and Rich, JJ., concurred; Putnam, J., read for reversal, with whom Jenks, P. J., concurred.

Putnam, J. (dissenting):

This verdict is partly punitive. Its amount is peculiarly within the province of the jury. But this court is to see if the jury had before them the grounds on which their verdict could go beyond compensatory damages; that is, that the plaintiff had to show actual malice. (Cohalan v. New York Press Co., 212 N. Y. 344.) The charge quoted from Crane v. Bennett (177 N. Y. 106) followed what had been said of punitive damages in a way that might well warrant a jury in the impression that falsity alone shows such malice as deserves punitive damages. An exception was duly taken. Laymen do not readily distinguish such artificial terms as malice in law and malice'in fact, and hence easily misapply what was said in Crane v. Bennett. Such an error as to the right to assess punitive damages merely from the falsity of the libel, occasioned the reversal in Amory v. Vreeland (125 App. Div. 850).

Hence I vote for a new trial.

Jenks, P. J., concurred.

Judgment and order affirmed, with costs.  