
    Franklin P. Saunders, Respondent, v. The Post-Standard Company, Appellant.
    
      Libel suit—proper, charge where two divisible statements are made and one is pyroved by the defendant to be true■— competency of proof as to the public positions held by the plaintiff—punitive damages — empress malice need not be proved—amount of verdict.
    
    Á. newspaper account of a collision between a train and a' herd of cattle, resulting in the death of one cow and the injury of two others, alleged that the owner of the cows had hitched a pair of horses to the two injured cows and dragged them along the track about 600 feet, breaking bones that were not already broken, and also that the injured animals were left in a dying condition until late in the afternoon when they were killed by an officer of the Society for the Prevention of Cruelty to Animals.
    
      
      Reid, that hoth the statements contained in the account were libelous per se; That the two statements being divisible,- if the defendant proved that one of the charges was true, there could be no recovery with respect to such charge, even though the other charge was found to be false;
    That the trial court, when giving the following instruction to the jury: “ That the defendant in order to justify the publication of * * * the alleged libel, must prove the entire charge to be true, and in case the defendant fails to prove the truth of the entire publication, then there is no justification thereof,” intended to charge in accordance with and not in contravention of the above rule;
    That it was proper for the court to allow the plaintiff,, over the objection of the defendant, to prove that he had been supervisor of his town, a member of the State Legislature, trustee of his church, director of a hank and had held other positions indicating that he was a man of standing and prominence in the community in which he lived, as such evidence was competent to show the circumstances surrounding the plaintiff and as bearing upon the hurtful tendency of the libel and the general damage to which he was exposed;
    That proof of express malice on the part of the defendant was not necessary to justify the court in submitting the question of the allowance of punitive damages to the jury;
    That it was sufficient to prove that the article was false and was recklessly and carelessly published, notwithstanding that the defendant secured thé article in question from one of its ordinary channels for procuring news; that the accuracy of such channel had not been previously questioned and that the managers of the defendant did not know the plaintiff and had no pique or spite against him;
    That in this class of cases the damages are peculiarly within the province of the jury and that in this case a verdict of §500 could not he said to be excessive.
    Appeal by the defendant, The Post-Standard Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of April, 1904, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 1st day of April, 1904, denying the defendaht’s motion for a new trial made upon the minutes.
    
      Ceylon H. Lewis and Will B. Crowley, for the appellant.
    
      Thomas H. Dowd, for the respondent.
   Spring, J.:

On the 12th day of December, 1900, a herd of cattle owned by the plaintiff was run into by a train on the Delaware, Lackawanna and Western railroad at Dunlap’s Crossing in Onondaga county and one was killed and two injured. The appellant was the publisher of the Post-Standard newspaper, and its issue of the morning following the accident contained the alleged account of the transaction which gave rise to this action for libel.

There were two specific offenses charged against the plaintiff. The first and perhaps the gravest was that Saunders had hitched a pair of horses to these two injured cows “ and dragged them along the tracks about 600 feet, breaking bones that had not already been broken.” The second is that these animals were left in a dying condition until late in the afternoon,” when they were killed by the superintendent of the Society for the Prevention of Cruelty to Animals.

Each of these statements was libelous per se (Triggs v. Sun Printing & Publishing Association, 179 N. Y. 144; Morrison v. Smith, 177 id. 366; Penal Code, §§ 655, 656), and unless the defendant was able to sustain their truthfulness it, was liable in damages to some extent to the plaintiff. Saunders was not present when the train collided with his cattle. He had engaged one Fairbanks to meet the herd at this crossing and unload, them, which Fairbanks did, taking his own men to assist him. One of the cows was seriously injured and unable to walk and was lying on the railroad track and was drawn off by one of these men. The plaintiff had nothing to do with this affair and was not cognizant of it. As to this charge, therefore, there was no defense or justification interposed or proven.

The plaintiff was notified of the accident and reached the crossing about two hours after it occurred. The cow which had been taken off the track was lying on the ground. The plaintiff testified that she was lying naturally, without any indication of pain, and he made no examination of her injuries. He and the local agent of the railroad company had a dispute, over the ownership of this cow and the one which had been killed. The plaintiff contended that the company must look after them, which the agent refused ,to do? and the plaintiff shortly after drove away. The defendant in its answer set forth certain facts in justification of its statement that the plaintiff had abandoned these cows in a dying condition.” There was a question of fact as to the pith of this accusation-and it was submitted to the jury.

The trial judge instructed the jury in a very fair and comprehensive charge. The appellant, however, contends that there are certain errors which call for a reversal of the judgment. The court at the request of counsel for the plaintiff instructed the jury: “ That the defendant in order to justify the publication of plaintiff’s Exhibit 1, the alleged libel, must prove the entire charge to be true, and in case the defendant fails to prove the truth of the entire publication, then there is no justification thereof.” The appellant’s counsel excepted to this instruction and claims it is reversible error.

The point urged is that the publication contains two distinct divisible statements each of which was libelous j?er se ; that as- to one no justification had been attempted, while as to the other the defendant in a substantial degree had given evidence in vindication of its truthfulness, and if the jury were satisfied that the defendant had fairly proved there was no falsity as to this particular charge, then as to it no recovery should be had, even though he were liable by reason of the other accusation. The rule of law suggested seems to be the proper one. (Lanpher v. Clark, 149 N. Y. 472; Holmes v. Jones, 121 id. 461, 469; Stock v. Keele, 86 App. Div. 136.)

We think, however, the counsel misapprehends the scope of the instruction. Its purport was that even though there had been a justification as to one of the separate statements that was not a complete answer to the entire article published. In order to relieve the defendant from liability the justification must go to the whole publication or it is no justification to the statement in its entirety. The court was not considering the effect of the justification to the especial subject to which it- applied, but as to its bearing upon the whole article. Nor was his attention called to the principle which the appellant now urges. The court in its- main charge had stated: “ The rule is that the justification must be as broad as the charge, and that in order that it shall be complete he must allege the truth of all of the matters which he has published and prove them, in order to make out a complete defense.” In response to the request the court reiterated this rule. That the trial court had a very clear conception of the rule that a justification maybe made to a separate averment is further illustrated, for in his principal charge he had analyzed the testimony pertaining to. the alleged abandonment of the cow dragged from the track, comparing it with the published article and prefacing his discussion with a statement as to section 656 of the Penal Code which constituted such an offense a misdemeanor.

It is to be noted, also, he was requested by the defendant’s counsel to charge: If those averments are divisible — that is, there is one averment that he hitched the horses to the animal and dragged it, and another averment that he left the cow there through the day suffering; those being divisible averments, I ask your Honor to instruct the jury that we may prove the truth of one of those charges although we do not prove the truth of the other.” In reply the court added, I have already told them that, I think,” which apparently was satisfactory to the counsel. Before this, at the request of the counsel for the defendant, the court charged that if the plaintiff left this cow to die in the street he was guilty of a misdemeanor and offense, known as cruelty to animals.” We are satisfied that the charge made by the court, already adverted to and now complained of, was correct and that the proposition urged by the counsel was fairly before the jury.

Upon the trial and over the objection of the defendant the plaintiff proved that he had been supervisor of his town, a member of the State Legislature, trustee of the Methodist Episcopal church, director of a bank and had held other positions, indicating that he was a man of standing and prominence in the community in which he lived. This evidence was competent, showing “"the circumstances surrounding the plaintiff, and as bearing .upon the hurtful tendency of the libel, and the general damage to which he was exposed.” (Morey v. M. J. Association, 123 N. Y. 207, 210 ; Parrish v. Sun Publishing Association., 6 App. Div. 585.)

The trial judge permitted the jury in its discretion to award punitive damages against the defendant. There was no proof of actual malice. The defendant obtained its information from the officer who killed the cow injured. This was one of its ordinary channels for procuring news, and no question had theretofore been suggested as to its accuracy. The defendant’s managers did not know the plaintiff arid they had no pique or spite against him. In view of these facts it is claimed that the jury should not have been allowed to give exemplary damages, and also that the recovery of $500 is excessive.

Proof of express malice is not necessary to permit the jury to pass upon the question of punitive damages. Proof of the falsity of the article published is sufficient. The rule applicable was thus summarized in Crane v. Bennett (177 N. Y. 106, 116): “ The general rule is that in an action for libel, proof by the plaintiff tending to establish the falsity of the alleged libelous publication is evidence of malice, and if such evidence is introduced a question for the jury is presented whether the malice is of such a character as to call for punitive damages, and that question is not to be withdrawn from them because the defendant gives evidence which tends to show that there was no actual malice.”

If the article was recklessly or carelessly published punitive damages might properly be awarded. (Smith v. Matthews, 152 N. Y. 152, 158.) Whether the defendant should have made further investigation before charging the plaintiff, a reputable citizen, with misdemeanors, was for the jury to determine, and the decision of that question may have been potential in allowing or disallowing damages beyond the actual loss sustained by the plaintiff.

We cannot under the circumstances conclude that the recovery is excessive. In this class of cases the damages are peculiarly within the province of the jury. The gravity of the publication, the extent of its circulation, the standing of the person of whom the libelous article is published and the manner the information was acquired all enter into the question of damages, and unless it is apparent that the jury have gone astray the amount of the verdict ought not to be interfered with.

The judgment should be affirmed, with costs.

All concurred, except Hiscock, J., not sitting.

Judgment and order affirmed, with costs.  