
    TOBIN v. SYKES et al.
    (Supreme Court, General Term, Fourth Department.
    September 1893.)
    1. Libel—Justification—Damages.
    In an action for libel, where defendant sets up a justification, but fails to establish it, the jury may, if they find that it was set up in bad faith, consider that fact in estimating damages.
    2. Trial—Arguments of Counsel.
    It is proper for counsel to read to the jury pleadings filed by the adverse party, though not regularly introduced in evidence.
    3. Libel—Evidence.
    In an action for a libel charging plaintiff with being drunk and beating her children, evidence as to plaintiff’s condition after the publication of the libel is inadmissible.
    Appeal from circuit court, Oneida county.
    Action by Catherine Tobin against James B. Sykes and another for libel. From a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendants appeal.
    Affirmed.
    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.
    Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.
    L. M. Martin and D. P. Searle, for appellants.
    W. J. Shields and Charles R. Carruth, for respondent.
   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, 24 N. E. Rep. 701. 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. All concur.  