
    William Lynch, Respondent, v. The New York Times Company, Appellant.
    First Department,
    February 18, 1916.
    Libel — publication of proceedings in criminal court in which person arraigned had assumed plaintiff's name — damages — practice — when verdict for defendant will not be set aside so that plaintiff may have verdict for nominal damages.
    In an action for libel based on the publication by defendant of the proceedings in a criminal court in which the person arraigned had assumed plaintiff’s name, it appeared that the defendant had published certain statements concerning plaintiff which were false and were derogatory to him, but would have been true if spoken of the person arraigned. The plaintiff alleged no special damages, and it was apparent that the publication was without actual malice and the result of a mistake. The jury were fully instructed on the question of damages, that the article was libelous per se, and that the defendant was not entitled to the plea of privilege.
    
      Held, that the plaintiff under the instructions of the court was entitled at least to nominal damages, and that a verdict for the defendant was technically erroneous.
    But, it appearing that the erroneous verdict was not induced by any error or misdirection on the part of the court, and that another jury would take the same view of the plaintiff’s damages, the verdict should not be set aside and a new trial ordered merely to enable the plaintiff to recover a verdict for nominal damages.
    Page and Laughlin, JJ., dissented, with opinion.
    
      Appeal by the defendant, The New York Times Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of June, 1915, setting aside the verdict of a jury in defendant’s favor and granting plaintiff’s motion for a new trial.
    
      Alfred A. Cook, for the appellant.
    
      Judson G. Wells, for the respondent.
   Scott, J.:

The action is for libel based on the publication by defendant of the proceedings in a criminal court in which the person arraigned, a relative of the plaintiff, had assumed plaintiff’s name. In connection with this report defendant had published certain statements concerning plaintiff which were false and were derogatory to him but would have been true if spoken of the person who was arraigned and who had assumed plaintiff’s name. The plaintiff alleged no special damage, and it was quite apparent that the publication was without actual malice and the result of a mistake.

The trial justice charged the jury very fully on the question of damages and apparently to the entire satisfaction of plaintiff, who took no exception thereto. The jury were instructed that the article complained of was libelous per se and that the defendant was not entitled to the benefit of the plea of privilege which it had interposed. On the question of damages the jury were given the widest latitude, being instructed that they might award only nominal damages if they found that the article had been published without malice and that plaintiff had suffered no appreciable damage therefrom, or might award substantial damages if they found that the plaintiff had been damaged, and even exemplary damages if they found that the article had been inspired by malice. The jury rendered a verdict for the defendant and this the court set aside. There can be no doubt that the verdict was "technically erroneous, for, under the law as expounded to the jury by the court, the plaintiff was entitled at the least to nominal damages. Having in mind the instructions of the court, it seems evident that this verdict must have been the result of a conviction in the minds of the jurymen that the plaintiff had in fact suffered no damage at all, but, being laymen, they failed to distinguish the nice, perhaps artificial, distinction between a verdict for the defendant and one for plaintiff with nominal damages. They doubtless considered, as most laymen would unless carefully instructed to the contrary, that if a plaintiff had suffered no damage he was entitled to no verdict.

In a libel case, more, perhaps, than in any other, the jury is generally considered to be the supreme arbiter on the question of damages. In actions for other torts there is generally to be found some standard by which the reasonableness of an award of damages may be tested, but it is seldom so in actions for libel and slander where the elements of wounded sensibilities and the loss of public esteem play a part. If the jury in the case at bar had given expression to the opinion that plaintiff had suffered no injury by rendering a technically correct verdict for nominal damages no fault could have been found with their verdict on the record before us. Assuming, as we are entitled to do, that another jury would take the same view of the plaintiff’s damage that the first one took, the result of an affirmance of the order appealed from would be to set aside the verdict and order a new trial in order that the plaintiff might recover a verdict for nominal damages. It has now become the established rule that a verdict will not be set aside for this reason. (Funk v. Evening Post Pub. Co., 76 Hun, 497; affd., 152 N. Y. 619; Throckmorton v. Evening Post Pub. Co., 35 App. Div. 396.)

In the case first cited Presiding Justice Van Brunt discussed numerous cases bearing upon the question both in England and in this State, and found the established rule to be that where there is shown no error on the part of the court, by which the jury were misled, and no property rights are involved, a verdict will never be set aside upon a motion for a new trial, simply because the verdict has been for the defendant, instead of for the plaintiff for nominal damages. That is precisely the case as we find it presented here. The charge to the jury, at least from the plaintiff’s point of view, seems to have been considered entirely satisfactory and no fault is found with it by plaintiff upon this appeal. It cannot well be said, therefore, that the technically erroneous verdict was induced by any error or misdirection on the part of the court. In that regard the case is similar to the Throckmorton Case (supra), wherein the rule above stated was reiterated and applied.

It follows that the order appealed from should be reversed, with costs, and the verdict reinstated.

Clarke, P. J., and McLaughlin, J., concurred; Laughlin and Page, JJ., dissented.

Page, J. (dissenting):

The article was libelousper se. George M. Lynch, on being arrested, gave the name of his brother William and was tried and convicted. The article publishing an account of this proceeding contained statements identifying William Lynch as the former manager of the store of his mother, Theresa Lynch, and then falsely alleged that William had dissipated a fortune in riotous living and had disappeared. The court properly ruled that the article was not privileged.

The answer contained a third and partial defense in mitigation of damages that the article was published in good faith in reliance upon the truth of information received by reporters and agents, and that the publication was made without malice, express or implied.

The justice erroneously charged that this could be taken into consideration generally in the mitigation of damages, whereas he should have limited it to the question of punitive damages.

The belief in the truth cannot be taken to mitigate general damages. No exception was taken to this portion of the charge and I only mention it, as accounting in some degree for the verdict.

The defendant proved no defense, and the justice practically although not as clearly as he might, instructed the jury that they should bring in a verdict for the plaintiff for damages in such sum as they thought proper.

I do not think that this is a case for merely nominal damages, but that the publication concerning the plaintiff was made without any investigation or foundation in fact and called for substantial damages,

In my opinion the order should be affirmed.

Latjghlin, J., concurred.

Order reversed, with costs, and verdict reinstated. Order to be settled on notice.  