
    Catharine Tobin, Resp’t, v. James B. Sykes et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed Sept. 23, 1893.)
    
    1. Libel—Justification.
    The foundation, of a suit for libel was an article published in defendants’ newspaper that “ a miserable, drunken brute of a mother on Utica street sends her children for beer daily and cruelly beats them. Last evening their cries brought out the neighbors,” etc. Plaintiff’s name was not mentioned, but on the trial evidence was given sufficient to justify the jury in finding that it was published concerning her. No evidence was given sho wing that prior to the special occasion referred to in the article the plaintiff had ever been drunk, nor that she had been drinking on the day named, although it appeared that on such day she was punishing one of her children and the neighbors were interfering. Held, that the word “drunken,” as used in the article, did not refer to the condition of plaintiff on a particular day, but wap-used generally, and the court properly charged that no justification was shown as broad as the charge.
    
      2. Same—Evidence.
    In such case, evidence of the condition of plaintiff some time after the publication was properly excluded.
    8. Same.
    _ It is proper in such case to allow plaintiff to testify to the transaction upon the date specially referred to in the article and as to the circumstances leading directly to 'it.
    4. Same—Dama&es.
    In such case a verdict of $400 for plaintiff will not be set aside as excessive.
    Appeal from a judgment entered in Oneida county on the 15th January, 1892, upon the verdict of a jury at the Oneida circuit in favor of plaintiff for $400. Appeal also from an order denying a motion on the minutes for a new trial.
    Action for libel. The article published did not name the plaintiff, but she claimed that in fact it referred to her. It was as follows : “A miserable, drunken brute of a mother on Utica street sends her children for beer daily and cruelly beats them. Last evening their cries brought out the neighbors, and one of them threatened to arrest her if the beating was repeated.” The defendants in their answer set up a full justification and also matter of mitigation.
    
      L. M. Martin and D. P. Searle, for app’lts ; W. J. Shields and Charles R. Carruth, for resp’t.
   Merwin, J.

The main question on this appeal is whether the court erred in holding that the evidence was not sufficient to authorize the jury to find that the defendants had established a justification for the use of the word “ drunken ” in the manner in which it was used in the article published. The plaintiff was not named in the article, but the jury upon sufficient evidence found that the article was published concerning her. By the terms of the article, the word “ drunken ” did not simply refer to the condition of the party on a particular occasion, but was used generally. It substantially charged that the party was habitually drunk. There was no evidence that, prior to the special occasion referred to in the article, the plaintiff had been drunk or intoxicated. Nor was there any evidence that she had been drinking on the day named. One witness testifies that she appeared to be intoxicated, but on his cross examination he testified he had never seen her intoxicated. There is evidence that she was very excited, did not act rational; she had been punishing one of her children and the neighbors were interfering. We think the court did not err in holding that no justification was shown as broad as the charge.

At the close of the charge the plaintiff’s counsel asked the court to charge that if-the defendants fail to establish a justification the jury must determine whether or not it was set up in good faith, and if they find it was set up in bad faith they can take that into ■consideration in establishing the damages. To this the court replied, “ Yes, that is the rule correctly stated,” and the defendants excepted. This exception is not well taken. Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379. The case cited also disposes of the exception of the defendants to the reading from the answer to the jury by plaintiff’s counsel in summing up. It does not appear that any improper use was made of the answer. The record also shows as follows: “ Defendants objected to plaintiff’s counsel reading from the Bible, ‘ No drunkard shall inherit the kingdom of heaven.’ Overruled, exception.” We fail to see any ground for reversal in this ruling. The counsel had a right to comment in a reasonable manner upon the character of the charge made in the libel.

The evidence of the condition of plaintiff some time after the publication was properly excluded. It was competent for the plaintiff to testify to the transaction upon the date specially referred to in the article, and as to the circumstances leading directly to it. Perhaps, strictly speaking, the evidence was not in order at the time it was given, but no objection on this ground was taken. We discover no error in regard to it prejudicial to the defendants.

The defendants claim the damages are excessive. This depends upon the view that is taken of the evidence. The jury apparently took a view favorable to the plaintiff. We have no right to say that that was improper. It was the province of the jury to fix the damages, and upon the evidence, as they had a right to look. at it, no sufficient reason is apparent for us to interfere.

These considerations lead to an affirmance of the judgment.

Judgment and order affirmed, with costs.

Hardest, P. J., and Parker, J., concur.  