
    (69 Hun, 346.)
    HOLMES v. JONES.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    1. Libel—Excessive Damages.
    In an action of libel it appeared that plaintiff was the undertaker at the funeral of Gen. Grant, and that defendant published in a prominent New York city newspaper an article charging plaintiff with being intoxicated at such time. In his answer, defendant justified, and also set forth, in detail, facts and circumstances in support of the charge. Held, that a verdict for plaintiff for $3,500 does not' show that the jury were actuated by passion or prejudice, and is not excessive.
    2. Same—Decision on Prior Appeal as to Amount op Damages.
    The fact that on a prior appeal the general term reduced a verdict of $5,000 to $2,000, and ordered that unless plaintiff stipulated to take judgment for the latter amount the verdict should be set aside, is not controlling on a second appeal, where it appears that defendant did not accept the suggestion of the court, and the jury, on a retrial, returned a verdict for $3,500.
    Appeal from circuit court, Saratoga county.
    Action by Ebenezer Holmes against George Jones, treasurer of the New York Times, for libel. After the commencement of the action, George Jones died, and it was continued, by order of the court, against Gilbert E. Jones, treasurer of the New York Times. There was a verdict in favor of plaintiff for $3,500. From an order setting aside the verdict as excessive, and granting a new trial, unless plaintiff would stipulate to reduce the amount to $2,000, plaintiff appeals.
    Reversed.
    For reports of decisions on prior appeals, see 3 N. Y. Supp. 156, and 24 N. E. Rep. 701.
    Argued before MAYHAM, P. J., and PTJTHAM and HERRICK, JJ.
    O. S. & O. O. Lester, (Matthew Hale, of counsel,) for appellant.
    Townsend, Dyett & Einstein, (Henry Yonge, of counsel,) for respondent.
   MAYHAM, P. J.

This is an appeal from an order setting aside a verdict of a jury, rendered at the Saratoga circuit, for $3,500, and granting a new trial, on the ground of excessive damages, unless the plaintiff stipulate to reduce the verdict and recovery to the sum of $2,000. The action was for an alleged libel published in the New York Times, charging the plaintiff, as an undertaker, with being intoxicated while engaged in the business of preparing for, and conducting, the funeral services of the late Gen. Ulysses S. Grant, at Mt. McGregor, in Saratoga county. The complaint sets out some portion of the alleged libelous charge, as .printed in the Times, and claimed damages in the sum of $25,000. The answer set out, at great length, circumstances and facts alleged to have occurred at and before the alleged funeral services; admits the publication of the following words:

“ ‘It has been stated that Mr. Holmes was not in a fit condition to perform his professional duties for a part of the time during which he claims he was rendering services. The night that I arrived at Mt. McGregor, Holmes was under the influence of liquor at the hotel. His conduct was patent to all who saw him.’ That the defendant alleges that the words last quoted are true. That on the night of July 23, 1885, the plaintiff was constantly drinking spirituous liquors, mixing his drinks,—drinking at one time lager beer; at another, rye whisky; then, brandy; and so on until he became very drunk. He became abusive and foul-mouthed. He was staggering and hiccoughing, When he sat down he would spread all over the seat, and let his head droop upon his arms, placed to support it. He would mutter incoherently to himself. One Dr. McBwan, a friend of the plaintiff, tried to coax hint to go to b.ed, but he would not go, and the said Dr. McBwan, and others wh® who were with him, finally went to bed, and left the plaintiff on the hotel piazza. In the morning following, the plaintiff came from his room in the hotel, displaying evidence of having slept with his clothes on during the night His clothes were dirty and rumpled. His necktie had worked np under his ear, and his shoes were c-pen.”

Other admissions of the charges contained in the complaint are set out in the answer, as are also alleged correspondence between the plaintiff and a member of Gen. Grant’s family, and also correspondence between the plaintiff and the New' York Sun.

In the sixteenth paragraph of the defendant’s answer the defendant admits that the New York Times, on the 22d of November, 1886, contained the following words:

“‘He was then- at 6 in the evening, and Holmes had nothing to do with it Mr. Holmes was drunk at the hotel, and was going to and coming from the bar all the time. This was before the body'was placed in the casket. Anxiety was felt lest he should insist upon going to the cottage and create an unseemly .scandal there by his condition and appearance.’ That tins defendant denies that these words are false, scandalous, or defamatory, or that they were published maliciously of or concerning the plaintiff. That this defendant: denies that the said association, the New York Times, meant, or was understood to mean, that the plaintiff was, on the evening of July 23, 1883, while he claimed to he taking carp of, embalming, and preparing for burial the remains of the late Gon. Ulysses S. Grant, in fact at the hotel at Mt. McGregor, and drunk and drinking all the time, and so drunk that anxiety was felt lest he should go to the cottage where the body of Gen. Grant was lying, and create scandal by his intoxicated condition and drunken appearance. That the defendant alleges that the words quoted as last aforesaid arc true. That the plaintiff was, at the time when he claimed to be taking care of, embalming, and preparing for burial the remains of the late Gen. Ulysses S. Grant, drunk at the hotel at Mt. McGregor, from drinking spirituous liquors. That there were many visitors at the cottage where the body of the late Gen. Grant was lying, and in the hotel at Mt. McGregor, and great anxiety was felt by those who had charge of the said body that the plaintiff would go to said cottage, as he threatened to do, and by his drunken condition, appearance, and conduct would produce and create an unseemly scandal.”

The twenty-ninth paragraph of the defendant’s answer contains the following language:

“That on the night of July 23. '1885, the plaintiff was drunk, from drinking spirituous liquors. That during the evening he was continuously going to a,nil coming from the bar of the barroom of the hotel at Mt. McGregor, engaged in taking drinks of spirituous liquors, and he was continually mixing his drinks,—drinking at one time lager beer, and, at another, whisky; then, brandy: and so on until he became very drunk. That he became abusive and foul-mouthed from his drunken condition; staggered and hiccoughed. When he sat down he would spread himself all over the seat, and let his head droop cn Ms arms, placed to support it, and would mutter incoherently to himself. That one Dr. McEwan, a friend of the plaintiff, tried to coax him to go to bed, but he would not go, and the said Dr. McEwan, and others who were with him, finally went to bed, and left him on the hotel piazza. That on the following morning he came from Ms room in the hotel, displaying evidence of having slept with all his clothes on during the night. That Ms clothes were dirty and rumpled, and that Ms necktie had worked itself up under his ear, and his shoes were open. That from his being so intoxicated, and for other reasons, he was not on the night of July 23, 1885, and for some time subsequently, in a fit condition to perform professional, or any other, duties. That at a time when the plaintiff claimed to be taking care of, and embalming, and preparing for burial the body of the late Gen. Grant, he was drunk at the hotel at Mt. McGregor, from spirituous liquors. That there were many visitors at the cottage where the body of the late Gen. Grant was lying, and in the hotel at Mt. McGregor, and great anxiety was felt by those who had charge of the body that the plaintiff would go to said cottage, as he threatened to do, and by Ms drunken condition, appearance, and conduct would produce and create an unseemly scandal.”

On the trial the plaintiff read in evidence from a copy of the New York Times of November 22, 1886, the following portions of the article set up in the complaint:

“It has been stated that Mr. Holmes was not in a fit condition to perform professional duties for a part of the time during which he claims he was rendering service. The rnght that I arrived at Mt. McGregor, Mr. Holmes was under the influence of liquor at the hotel. His condition was patent to all who saw him. He was there at six in the evening, and Mr. Holmes had nothing to do with it. While he was there, Mr. Holmes was drunk at the hotel that evening, and was going to and from the bar all the time. This was before the body -was placed in the casket. Anxiety was felt lest he should insist upon going to the cottage, and create an unseemly scandal thereby, by his condition and appearance.”

The plaintiff also offered evidence on the trial that tended to disprove the charge of drunkenness set out in the alleged libel, and substantially reiterated in the defendant’s answer. The defendant also introduced evidence tending to prove the truth of the-alleged libel. The jury rendered a verdict in favor of the plaintiff for $3,500, which the defendant moved to set aside as excessive; and from the order granting that motion, unless the plaintiff would stipulate to reduce the recovery to $2,000, the-plaintiff appeals. The only ground upon which this verdict was set aside is that of excessive damages.

The trial court, by allowing the verdict to stand at a reduced sum, disposes of the issues raised by the pleadings in favor of the plaintiff, and leaves no chance on this motion for any speculation-as to the actionable character of the alleged libelous publication.. The complaint charges that the defendant falsely, wickedly, and maliciously published in such newspaper, of and concerning the-plaintiff, the false, scandalous, and malicious libel set out in the-complaint; and the jury have, by their verdict, sustained the allegations of the complaint; and the court at special term has, by -allowing the verdict to stand if reduced in amount, acquiesced in the conclusion reached by the jury as to the publication of the libel. An action for damages for a tort is therefore clearly maintained, and stands conceded upon the record, and the alleged wrongdoer is before the court, asking that the damages which the jury have assessed against it for the perpetration of the wrong be reduced. This court has recently considered the question of the propriety of the court interfering with the verdict of a .jury in actions of tort. In Stephens v. Knitting Co., (Sup.) 20 N. Y. Supp. 916, Herrick, J., in discussing this question, says:

“In actions tor damages for tort it is well established law in this state "that verdicts o£ jurors will not be set aside for excessiveness unless the amount is so great as to manifestly show that the jury must have been actuated by passion, partiality, prejudice, or corruption.”

The judge cites in support of his conclusion a series of decisions in this state, from Coleman v. Southwick, 9 Johns. 45, to Porter v. Dunn, 131 N. Y. 314, 30 N. E. Rep. 122. Within these decisions, the only question open for our examination and decision is whether the verdict in this case was so great in amount as to show that the jury must have been actuated by passion, partiality, prejudice, or corruption. In the examination of that question we may consider that the jury, in disposing of the case, might properly take into consideration the business and situation of the plaintiff; the character of the libelous publication, and the extent to which it was circulated; the motive which the jury, from the evidence, might find for its publication; and the character of the- answer which the defendant interposed as defense, or in mitigation of damages. The evidence discloses that this libel was published at the great metropolis of the nation, hundreds of miles from the place where the events chronicled are alleged to have occurred, in a newspaper of almost worldwide circulation; that they concerned the conduct of the plaintiff, while engaged in a laudable professional or mechanical pursuit involving great delicacy and circumspection, and connected with the funeral obsequies of a man of worldwide fame, whose death had produced a profound sensation throughout the entire country, and the incidents of whose funeral were read and discussed all through •the state and nation with lively interest. The charge was of •a serious, damaging character, not only as it related to the business of the plaintiff, but also as it reflected upon him personally, and well calculated to affect him in a business point of view, and also socially, as a man, and to bring him into disgrace and disrepute by all who read and believed the article. It could only be completely justified by alleging and proving its truth. ' This the defendant undertook to do, but, in the estimation of the jury, failed in that attempt. The defendant also assumed to allege facts and circumstances in support of the charge, in mitigation of •damages. That is also allowable by way of mitigation or reductian of damages. But in setting up these defenses the defendant took the responsibility of establishing their truth, and also of satisfying the jury that these defenses were interposed in good faith, and not for the purpose of reiterating, in a more offensive manner, the same libelous accusations; and if the proof of justification failed, and the jury had reason to believe that the matters set up in mitigation were not proved, and were intérposed with" the design of repeating the libel, they could, in such case, regal'd such reiteration as evidence of malice, and take such fact into consideration, in aggravation of damage. Under such circumstances, statements and allegations in the answer were proper subjects for comment of counsel for the plaintiff on the trial, and cannot be withheld from the consideration of the jury. In Holmes v. Jones, 121 N. Y. 466, 24 N. E. Rep. 701, Earl, J., in discussing the use and effect of pleadings on the trial, says:

“There is no rule of law which requires a party in an action to put his adversary’s pleadings in evidence before his counsel can be allowed to comment upon them in his address to the jury. Statements, admissions, and allegations in pleadings are always in evidence, for all purposes of the trial of the action. They are made for the purpose of the trial, and are before the court and jury, and may be used for the legitimate purpose.”

If the jury in this case reached the conclusion that this alleged libel was not justified,—as they must have done before finding a verdict for the plaintiff,—then they were at liberty to look into proof, and all the facts and circumstances proved or set out in the pleadings of the defendant, to determine whether the libel published and proved, or the allegations in the answer, were malicious and in bad faith, and, taking all into account, determine whether to allow compensatory or punitive damages. In Holmes v. Jones, supra, the court say:

“So far as the libel was not justified, it was for the jury to determine the amount of damages to be awarded therefor. If they came to the conclusion, from the circumstances and nature of the charge made, that the publication was malicious, in bad faith, or recklessly, carelessly, or wantonly made, they could go beyond compensation, and award punitive damages.”

But it is urged that on a former trial of this case, which resulted in a verdict of $5,000 in favor of the plaintiff, the general term of this court reduced the verdict to $2,000, and ordered that unless the plaintiff stipulated to take judgment for that amount the verdict should be set aside, and a new trial granted. We have not that record before us, but cannot assume that the general term intended by that order authoritatively to declare that $2,000 was the maximum amount for which a verdict could be rendered in this case. In that case the suggestion of the general term was not accepted by the defendant, and we do not see how it can now be urged by the defendant as binding upon the court or parties in this trial. Ho such rule seems to have obtained in this court. In Peck v. Railroad Co., 8 Hun, 286, the plaintiff on the first trial recovered a verdict of $5,000, which was set aside as excessive. The case was tried again, and the plaintiff recovered $4,000. The defendant insisted, on appeal to the general term, that this verdict was excessive, but the court said, (Judge Boches writing the opinion, in which Judge Learned and Judge Boardman concurred:)

“The former verdict was $5,000. This sum was deemed quite extravagant, and palpably unjust, in view of the case made on the evidence. The verdict on the retrial was $4,000. The case is quite similar, on the proof, to-that before considered by the court; and the reduction in the sum now awarded by the jury seems much less than it should have been, in view of the remarks then made by the court. But even suppose the amount now awarded is deemed by the court large. Is it within the province and duty of the court to grant another new trial on this ground? A second jury has considered the case, under admonition from the court, and has made some deduction from the sum before awarded. The subject of damages is for the-jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, partiality, or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been about equally capricious, as has been the verdicts of juries. * * * It must be admitted, I think, that the verdict of $4,000 in this case is large, in view of the injury here proved; but this sum having been awarded by a second jury, the case-having been sent back for reconsideration on that point, and nothing appearing, except the amount, on which to predicate partiality, corruption, or improper influence, I think the court must accept it as final and conclusive." 8 Hun, 288, 289.

In the case at bar we see no reason for reducing the verdict, rendered by the jury. While every privilege which is consistent with the due protection of private character should be accorded the public newspaper press, to the end that the freedom of the-press, guarantied by the constitution, should not be abridged, still,, no invidious discrimination should be allowed in its favor, calculated to license its use to sensational and slanderous assaults upon the citizen. The interests of the public and the press are best subserved when the publishers of newspapers are held to truthful utterances, especially when the character of a citizen, public or-private, is under discussion. Under all the circumstances of this case, disclosed by the evidence, we see no element.of passion, prejudice, or corruption evinced by the amount of this verdict, nor do we regard it, in view of all the facts, excessive. The order of the special term should be reversed. • Order reversed, with costs and; printing disbursements.

HERRICK, J., concurs. PUTNAM, J., not acting.,  