Bishop v. New York Times Co.

• Decision Date: 31 May 1922
• Citation: 233 N.Y. 446,135 N.E. 845
• Parties: BISHOP v. NEW YORK TIMES CO.
• Court: New York Court of Appeals Court of Appeals

233 N.Y. 446

135 N.E. 845

BISHOP

v.NEW YORK TIMES CO.

Court of Appeals of New York.

May 31, 1922.

Action for libel by Abigail H. Bishop against the New York Times Company. A judgment for plaintiff, entered on a verdict, was modified and affirmed by the Appellate Division (194 App. Div. 881,184 N. Y. Supp. 378), and defendant appeals.

Reversed, and new trial granted.

See, also, 230 N. Y. 612, 130 N. E. 914.

Cardozo, Hogan, and Crane, JJ., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

Alfred A. Cook, Emil Goldmark, and John M. Greenfield, Jr., all of New York City, for appellant.

Stanley C. Fowler, Grant Hoerner, and Thomas L. Zimmerman, Jr., all of New York City, for respondent.

HISCOCK, C. J.

The plaintiff became involved in bitter matrimonial controversies with her husband. This led to their separation, and later culminated in an action brought by her wherein she charged him with adulterous misconduct with various women, and sought an absolute divorce, which was subsequently granted. Counter allegations of misconduct upon the part of each were brought into court by preliminary motions in the divorce action. In one of these the husband filed affidavits charging his wife with excessive and persistent use of intoxicating liquors, with the result that an order had been made committing her to an institution for inebriates. On another application seeking an examination before trial of one of the corespondents named by the wife it was claimed that service of papers was obtained by resort to forgery. As a sequel to this last charge the attorneys for the corespondent who had thus been served wrote to the district attorney of New York county a letter calling to his attention the alleged criminal conduct of the process server, and making various accusations against plaintiff, involving the ones that she had been mentally unbalanced for some time, and had been addicted to the execessive use of alcohol and drugs. A copy of this letter was sent to the publishers of various papers in New York City, including the defendant. Plaintiff's counsel, learning of this latter fact. notified one of defendant's reporters who had charge of the matter that the accusations were untrue, and must not be published. Notwithstanding this the defendant, through the action of such reporter, did publish an article which set forth at length the letter which it had received from the attorney as aforesaid, and thereafter this action was brought against it for libel in making such publication.

[1] It is conceded that some of the statements contained in the letter of which it published a copy, if untrue, were libelous per se, and that therefore defendant is liable in damages, both compensatory and punitive, although the publication may have been due to the act of an injudicious and inaccurate reporter in violation of a general policy of care and fairness in reporting news. But of course the defendant was entitled to have this liability carefully administered in accordance with established rules which fully secured its rights and protected if from responsibility for occurrences which were not the legal consequences of the publication complained of, and the applicability of these general principles was emphasized in this case by particular facts. The nature of the article and the circumstances under which it was published after notice to the reporter were calculated to stir the antagonism and prejudices of a jury, and the very large verdict of $45,000 which was rendered at least suggests the thought that this is what happened, and that the jury exercised with liberal mind, if not passionate impulse, the right which it enjoyed of inflicting upon the defendant punitive damages. Under these circumstances, on review of the record, the justices of the Appellate Division were unanimously of the opinion that defendant's rights had not been properly protected, and that substantial errors had been committed to its prejudice in the admission and exclusion of evidence. That court, however, sought to eliminate the injurious effect of these errors and square the result with defendant's rights by reducing the verdict from $45,000 to $25,000. We are unanimously of the opinion that errors affecting the course of a trial and infecting the entire verdict may not thus be cured on the speculation that their injurious effects, when measured by the size of the verdict, have not exceeded a certain amount The practice, of course, is familiar under which the excessive size of a verdict rendered at the end of a trial properly conducted may be corrected by the Appellate Division under the powers possessed by it to review the facts, by appropriate reduction, but no such power exists in such a case as is now before us, and this was in result held by us in Cohalan v. New York Press Co., 212 N. Y. 344, 106 N. E. 115. We thus come to the question whether substantial errors were committed upon the trial as claimed by defendant. If it should appear that none were thus committed, the result now standing in the case would be very unfair to plaintiff, for she would have been deprived of a substantial amount of her verdict without any adequate cause. We are convinced, however, that there has been no such miscarriage of justice as that, but that errors were committed which entitled the defendant to have the judgment entirely reversed, and a new trial granted.

Because they have been argued at length, and may arise upon another trial, we shall at the outset as briefly as may be dispose of certain questions which seem to us to be academic so far as the present record is concerned.

[2] With much earnestness counsel argues that in a case of a publication libelous per se the law presumes damage to reputation and feelings which may be assessed by the jury under general considerations of the nature of the libel, the circumstances of its publication, and the situation and standing of the plaintiff; that, if a plaintiff seeks special damages for any particular injurous result outside of those thus presumed by law, he must with appropriate completeness allege and claim such damages; that this plaintiff did not thus allege special damages, but nevertheless was permitted to introduce evidence tending to establish the same. The general principles governing the allowance of general and special damages in such an action as this are well settled, as counsel claims them to be. His deduction of error, however, is not, in our judgment, sustained.

[3] The term ‘special damages' in a libel suit based upon an article not libelous per se is ordinarily applicable to cases where, as the result of a libel, occurrences have followed to the detriment of plaintiff which resulted in loss of a pecuniary nature. Pettibone v. Simpson, 66 Barb. 492;Terwilliger v. Wands, 17 N. Y. 54, 59, 60,72 Am. Dec. 420;Pollard v. Lyon, 91 U. S. 225, 23 L. Ed. 308. If the same rule is to be applied in the case of an article libelous per se, we are doubtful if the evidence which was admitted in the present case, and of which complaint is made, tended to establish special damages within the rule. But, if we should assume otherwise, we do not think that any right which the defendant had to the exclusion of this class of evidence upon this ground was properly protected by its trial counsel (not the one arguing this appeal). This objection is based upon the form and allegations of the pleading. It is one which could have been corrected by amplification of the complaint if that were necessary, and therefore it was the duty of the defendant to make plain its objection of inadmissibility under the pleadings if such was indeed the fault of the evidence. We find no such objection. The objections of the trial counsel were indeedmultitudinous in number, but they were not appropriate to this claim, and this failure was such a waiver of any rights which the defendant had in this respect as to make this objection now unavailable. Bergmann v. Jones, 94 N. Y. 51-58.

But, regarding the matter from another viewpoint, appellant contends that, even though the evidence complained of did not tend to establish special damages, which were not pleaded, the therefore could not be proven, some of it did show specific slights upon and avoidance of plaintiff after the libel was published, thus tending to establish impairment of her reputation and standing, and furnish a cause for mental distress, and that such evidence was incompetent because there was a presumption that such consequences would flow from the publication of the libel, and this presumption could not be fortified by evidence of actual occurrences.

The question whether the presumption of injury to reputation and mental distress as a basis for general damages in the case of an article libelous per se may be supported by evidence tending actually to prove such consequences does not seem to have been very authoritatively settled. We are inclined to the view that a plaintiff is not compelled to rely upon a favorable presumption with which the law endows his cause of action, but that he may prove, if he can, that he has been avoided and shunned by former friends and acquaintances as the direct and well-connected result of the libel. This view finds support in some authorities. Nott v. Stoddard, 38 Vt. 25, 30,88 Am. Dec. 633;Kersting v. White, 107 Mo. App. 265, 80 S. W. 730. In the latter case evidence of a change in the attitude of former friends towards plaintiff was held to have been improperly received, but solely upon the ground that it was not shown that such change was attributable to the publication of the libel.

[4] But, if we are wrong in this view (Sheftall v. Central of Georgia R. Co., 123 Ga. 589, 51 S. E. 646;McDuff v. Detroit Evening Journal Co., 84 Mich. 1, 47 N. W. 671,22 Am. St. Rep. 673), we again find that the appellant has failed to present such error by any appropriate objection and exception. The one instance of such evidence which is...