Colbert v. Journal Pub. Co.

• Decision Date: 15 June 1914
• Docket Number: No. 1620.,1620.
• Citation: 142 P. 146,19 N.M. 156
• Parties: COLBERTv.JOURNAL PUB. CO.
• Court: New Mexico Supreme Court

19 N.M. 156

142 P. 146

COLBERT

v.JOURNAL PUB. CO.

No. 1620.

Supreme Court of New Mexico.

June 15, 1914.Rehearing Denied July 20, 1914.

Syllabus by the Court.

An erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment, unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges.

Where a libelous article does not name the person alluded to therein, witnesses may testify that on reading the article they understood, from their acquaintance with the plaintiff and the circumstances alluded to in the article, that it was intended to refer to him.

The admission of improper evidence of a fact in issue is harmless when the verdict is supported by sufficient competent evidence, which is uncontradicted.

Any false and malicious writing published of another is libelous per se, when its tendency is to render him contemptible or ridiculous in public estimation, or expose him to public hatred or contempt, or hinder virtuous men from associating with him.

“Malice in law” is implied malice, and arises by operation of law when a publication is made without lawful excuse.

“Actual malice,” or malice in fact, sometimes denominated as express malice, implies personal hatred or ill will towards the plaintiff, or wanton disregard of the civil obligations of the defendant toward the plaintiff.

Repetitions of the alleged defamatory matter, or other defamatory publications of a similar character, are admissible to show actual or express malice on the part of the defendant.

It is a well-established principle of the common law that in actions of trespass and all actions on the case for torts a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant in a proper case, having in view the enormity of his offense rather than the measure of compensation to the plaintiff.

A wrongful act punishable as an offense does not preclude exemplary damages therefor in a civil act sounding in tort.

Where specific objection is urged to an instruction of the trial court, a ground other than that so presented for the consideration of the trial court cannot be urged as the basis of an assignment of error on appeal.

Appeal from District Court, Bernalillo County; before Justice Raynolds.

Action by John W. Colbert against the Journal Publishing Company, for libel. From judgment for plaintiff, defendant appeals. Affirmed.

This cause comes up on appeal from a judgment for $3,000 against the appellant, rendered on the verdict of a jury in the district court of Bernalillo county. The action was brought by appellee for damages against appellant for an alleged libel. The complaint, after formal allegations of the residence of the parties and the corporate character of appellant and the fact that said corporation was the owner and publisher of the Morning Journal, thus sets out its alleged cause of action:

Where a libelous article does not name the person alluded to therein, witnesses may testify that, on reading the article they understood, from their acquaintance with the plaintiff and the circumstances alluded to in the article, that it was intended to refer to him.

“That on or about the 17th day of November, 1912, and in its issue of the Morning Journal of that date the defendant wrongfully, unlawfully, willfully, and maliciously, and with intent to injure and degrade this plaintiff and to cause it to be believed among his friends and associates and the public generally that he had been guilty of acts and conduct disgraceful to him as a member of society, and which should bring him into contempt among honorable persons, published and circulated of and concerning this plaintiff, who, though not expressly named in the article, was therein described and intended to be referred to as a certain benedict, the said article containing, among other things, the false and libelous matter set forth in the statement annexed hereto and marked ‘Exhibit A,’ which is to be taken and considered as though here set forth in full, to the damage of this plaintiff in the sum of $10,000.”

The answer admits the ownership and publication of the paper by appellant and the publication of the article set out as Exhibit A of the complaint, and denies each and every other allegation of the complaint. Upon this issue the cause was tried to a jury, and verdict for $3,000 returned, upon which the court rendered judgment. A motion for a new trial was heard and overruled, where-upon appellant brings this appeal.

Summers Burkhart and Edward A. Mann, both of Albuquerque, for appellant.

Marron & Wood, of Albuquerque, for appellee.

HANNA, J. (after stating the facts as above).

[1] The first error presented for our consideration by appellant is predicated upon the denial of appellant's challenge for cause of the venireman, A. B. Loken. It is urged that this venireman had formed an opinion as to whether or not the article in question referred to appellee and had this opinion at the time he went into the jury box, and that his opinion was such as to require evidence to remove it. The record discloses that appellant's challenge for cause to this venireman was disallowed by the trial court, and that appellant subsequently peremptorily challenged him, and thereafter exhausted all its peremptory challenges, but it does not appear that an objectionable juror was forced upon appellant or sat upon the jury after appellant had exhausted its peremptory challenges. In some jurisdictions it is held that an erroneous ruling, upon a challenge for cause, that a juror is competent, where the challenging party exhausted his peremptory challenges before the panel is complete, is ground for reversal. It is our opinion that the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment, unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges. Spies v. People, 122 Ill. 1-258, 12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320; Graff v. People, 208 Ill. 312, 70 N. E. 299; National Bank v. Schufelt, 5 Ind. T. 27, 82 S. W. 927; Johns v. State, 55 Md. 350; Fleeson v. Savage, etc., 3 Nev. 157; Ford v. Umatilla County, 15 Or. 313, 16 Pac. 33; Wooten v. State, 99 Tenn. 189, 41 S. W. 813; Endowment Rank K. P. v. Steele, 108 Tenn. 624, 69 S. W. 336; Johnson v. State, 27 Tex. 758; Heucke v. Milwaukee City R. Co., 69 Wis. 401, 34 N. W. 243; Pool v. Milwaukee Mechanics' Ins. Co., 94 Wis. 447, 69 N. W. 65. The reason as well as the propriety, for this rule is well stated in Bank v. Schufelt, 5 Ind. T. 27, 82 S. W. 928, in the following language:

“Although the peremptory challenges may have been exhausted before the completion of the impaneling of the jury, yet those who were afterwards taken may not have been objectionable. It is true they may have been, and, if they were, then the challenging party has suffered a wrong; but, if they were not, he has not been wronged, notwithstanding the fact that he was improperly forced to exhaust one of his challenges. Whether there were or were not objectionable jurors taken after the challenges had been exhausted is a question of fact, and, as the presumptions are always to be taken favorably to the legality of the verdict and the proceedings of the court, he who charges that it was wrongfully procured must prove it, not that the juror whom the party was forced to challenge was disqualified, and subject to challenge for cause, but that some juror who tried the case was disqualified or objectionable. ‘In all cases where the rulings of the trial court are questioned on error or appeal, those rulings are presumed to be correct until the contrary is shown. It will therefore be presumed, until the contrary appears by the record, that the jurors who tried the case were possessed of the qualifications required by law.’ 1 Thompson on Trials, 118.”

See, also, Thompson on Trials, vol. 1, § 115.

For the foregoing reasons we are unable to see wherein appellant was injured by the overruling of appellant's challenge for cause of the venireman Loken, and cannot consider the assignment well taken, though it be conceded that the assignment is well taken, which we do not consider it necessary to pass upon.

[2] 2. The second assignment of error relied upon by appellant is that three witnesses, Walton, Frank, and Wroth, were permitted to testify as to the visit of the wife of appellee to California and return of the child before she returned, because the testimony was shown to be hearsay, and not upon the knowledge of the witnesses. In connection with this assignment it is urged that one of the most material questions for the jury to determine was whether or not the article in question did in fact refer to appellee, and that testimony bearing upon such question should be subject to the same rules as that of any other testimony with reference to facts material to the issue being tried. While it is undoubtedly true that the meaning of the defendant, whether the libel was of and concerning the plaintiff, are questions for the jury, under the instructions of the court, and that the authorities are in conflict as to whether the understanding or impression of witnesses who have read the objectionable article can be received as evidence of such facts, nevertheless we are of the opinion that the greater weight of authority is to the effect that when the words are ambiguous as to the person referred to, and their application doubtful, persons who read the libel and are acquainted with the parties and the circumstances may state their judgment and understanding as to whom the libelous charges referred....