Warner v. Press Pub. Co.

• Decision Date: 15 March 1892
• Parties: WARNER v. PRESS PUB. CO.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 181

30 N.E. 393

WARNER

v.PRESS PUB. CO.

Court of Appeals of New York, Second Division.

March 15, 1892.

Appeal from common pleas of New York city and county, general term.

Action by Sarah M. Warner against he Press Publishing Company for damages for the publication of a libel. From a judgment of the general term entered on an order affirming a judgment for plaintiff, defendant appeals. Affirmed.

James M. Keatinge, for appellant.

A. W. Gleason, for respondent.

PARKER, J.

The judgment under review awards to the plaintiff damages against the defendant for publishing in the New York World what purported to be a brief report of a judicial proceeding which contained matter imputing unchastity to her. The defenses sought to be interposed were (1) that the publication was privileged, because a fair and true report of a proceeding in court; (2) that it was true.

Ordinarily, whether a publication is privileged is a question of law for the court; but in this case the evidence presented by the plaintiff was to the effect that the matters in the publication of which complaint is made were neither introduced in evidence nor presented in court for such a purpose, and therefore formed no part of the hearing which the defendant pretended to report. The defendant sought to show the contrary; and thus the case was brought within the rule that, where the facts upon which a defendant bases a claim of privilege are challenged by the plaintiff, it then becomes the duty of the court to submit to the determination of the jury whether there exists the facts upon which the privilege was sought to be founded. Lovell Co. v. Houghton, 116 N. Y. 425, 22 N. E. Rep. 1066. This was properly done, and, as one result of the verdict, it must be deemed established that the objectionable publication was not privileged. An effort was also made on the part of the defendant to prove that the matter contained in the report was true. This attempt was met by the testimony of the plaintiff asserting its falsity; and whether true or false was one of the questions properly submitted to the jury, who by their verdict have settled that feature of the controversy favorably to the contention of the plaintiff.

But the appellant now insists that the court erred in refusing to charge the following request: ‘If the jury find that the defendant was not actuated by actual malice against the plaintiff, they cannot award any damages to her for injured feelings, or mental or bodily suffering.’ It asserts that, in the absence of actual malice, injury to feelings or mental or bodily suffering are not elements of compensatory damages, but of exemplary damages; therefore, the request called for less than was the defendant's right. This contention we regard as not well founded. From the stand-point at which we are required to view the case, it appears that the defendant published of and concerning the plaintiff matters imputing unchastity to her; that it was not privileged, and was false. The plaintiff gave evidence of malice when she proved the falsity of the libelous publication; and, in the absence of evidence on the part of the defendant tending to show that it had neither the desire nor the intention to wrong her, it would have been the duty of the court to instruct the jury that the plaintiff might be awarded exemplary damages, in their discretion. But testimony was adduced on the part of the defendant tending to prove the absence of actual malice on its part towards the plaintiff, which, taken in connection with the evidence of malice, which the law imputed when the falsity of the libel was established, presented a question of fact, whether malice existed in the publication. If found to exist, then, in their discretion, the jury could award exemplary damages. Samuels v. Evening Mail Ass'n, 75 N. Y. 604, 9 Hun, 288;Bergmann v. Jones, 94 N. Y. 51-61.It...