
    Oscar P. Willmann, Respondent, v. The Press Publishing Company, Appellant.
    Libel— “sucker” tantamount to “ scoundrel” — a question for the jury.
    
    
      It seems, that where a postal card reads: “ You sucker, why don’t you come and see me ? You are afraid of me. You and your bitch woman dare not do it. Jail is a good place for you and your woman, you sucker,” a newspaper report of criminal proceedings based upon such postal card, may properly state that it accused the person to whom it was addressed of being a “scoundrel."
    
      In any event, it is error for the court to charge that the use of the term “ scoundrel " in the report of the criminal proceedings rendered it lihelous, and to refuse to submit to the jury the question whether the report was substantially true, and whether the effect of the language of the postal card was to charge the person to whom it was addressed with being a scoundrel.
    Appeal by the defendant, The Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of May, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of May, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    This appeal was transferred from the first department to the second department.
    
      John M. Bowers, for the appellant.
    
      Hugo Wintner [Frederick Beltz with him on the brief], for the respondent.
   Goodrich, P. J.:

The action was brought against the defendant as publisher of The World to recover damages for libel. The plaintiff recovered a verdict of $1,000, and the defendant appeals from the judgment entered thereon.

The plaintiff, who is a lawyer, made a complaint before Police Justice Hogan and procured the arrest of one Griebel for sending through the mails a very vulgar and scurrilous message on a postal card addressed to him at his residence. This card was annexed to and formed part of the criminal complaint and reads: “ You sucker, why don’t you come and see me ? You are afraid of me. You and your bitch woman dare not do it. Jail is a good place for you and your woman, you sucker.” The defendant, in an article purporting to report the proceedings in the Police Court, used these words: The warrant charged Griebel with libel based on a postal card he wrote to Miss * * * accusing Willmann of being a scoundrel.” The article did not contain a copy of the postal card, which the defendant might legally have published as a part of the criminal proceedings in the Police Court. At the close of all the evidence the court denied a motion to dismiss the complaint.

The court, in charging the jury, said : “ In so far as the article, however, contains a defamatory characterization of the plaintiff outside of that judicial proceeding, the defendant cannot claim, exemption, but is put to its proof either to justify the publication or to show facts in mitigation of the plaintiff’s damage. Under the circumstances of this case I instruct you that the use of the word ‘ scoundrel ’ in that article is libelous. While a card was written by Griebel, no such word as scoundrel ’ or synonymous word appeared on it, or on any postal card introduced in evidence, and to that extent, therefore, the article was not a just and true report of the proceedings, and hence you must accept it as libelous.”

The court refused to charge the following requests: That if you find the article is substantially a true report of public and official proceedings, you must find a verdict for the defendant, there being no evidence in the case that the defendant was actuated by express malice in publishing the article complained of.

“ If you find that the effect of the words set forth in the postal card complained of by Willmann was" to charge him with being a scoundrel, and if you find that this postal card was the basis of the proceedings instituted by Willmann, then you must find a verdict for the defendant.”

The defendant excepted to both rulings.

Upon the complaint, the limitation in the charge and the refusal to charge, it is evident that the theory of the complaint and of the trial was that the libel consisted only of the statements that the postal card charged the plaintiff with being a scoundrel.

Section 1907 of the Code of Civil Procedure provides that an action, civil or criminal, cannot be maintained against the proprietor of a newspaper, for the publication therein of a fair and true report of any judicial proceeding, without proof of actual malice in making the report; but section 1908 provides that this does not apply to any matter added by a person concerned in the publication, or in the report of a thing said or done at the time and place of the proceedings, which was not a part thereof.

There is no question that it is the province and duty of the court, where an article is free from ambiguity, to charge whether or not it is libelous. (Townsh. Sland. & Lib. § 286 ; Woodruff v. Bradstreet Co., 116 N. Y. 217.) In Hunt v. Bennett (19 N. Y. 173) the court, referring to English authorities, said (p. 177): “ I cannot concur, however, in the idea they seem to establish, that the judge may or may not, as he pleases, charge a jury as to whether a publication is libelous, especially if it be free from ambiguity. The rule is so well settled that it has become a maxim, that ‘it is the office of a judge to instruct the jury in points of law.’ That office he should perform whenever a legal proposition arises.”

Such a condition seems to have arisen in the case at bar. It was a question of construction, whether the language of the .postal card, could be interpreted as “accusing Willmann of being a scoundrel.” It is true that the word “ scoundrel ” tyas not used on the card, but the language thereon stated facts which were tantamount to an accusation that the plaintiff was a scoundrel. In this view it was error for the court to refuse to dismiss the complaint and to charge, as he did, that because the word “ scoundrel ” did not appear on the postal card, its use was not a true 'report of the proceedings.

Even if this view be incorrect, it was error for the court to refuse to charge the quoted requests of the defendant, and thus submit to the jury the questions whether the article was substantially a true report, and whether the effect of the words of the postal card was to charge the plaintiff with being a scoundrel.

So, whether we consider the cited charge of the court or its refusals to charge, there was error for which the judgment should be reversed.

All concurred, except Bartlett, J., taking no part.

Judgment and order reversed and new trial granted, costs to abide the event.  