Henderson v. Dreyfus., 2166.

• Docket Nº: No. 2166.
• Citation: 191 P. 442, 26 N.M. 541
• Case Date: May 08, 1919
• Court: Supreme Court of New Mexico

26 N.M. 541
191 P. 442

HENDERSON ET AL.
v.
DREYFUS.

No. 2166.

Supreme Court of New Mexico.

May 8, 1919.

Syllabus by the Court.

The remission by the plaintiff of a part of the verdict, at the suggestion of the trial court, followed by a judgment for the sum remaining, does not deprive the defendant of his constitutional right to have the question of damages tried by a jury.

The trial court has the power to authorize a permissive remittitur and to enter judgment for the balance, and this although the amount remaining is not capable of definite computation from the evidence.

A remittitur will not cure a verdict excessive by reason of prejudice and passion. The reason for the rule is that, where the amount of the verdict is the result of passion and prejudice, such passion and prejudice may, and probably did, influence the jury in the determination of the other issues in the case upon the decisions of which the verdict was found.

The trial court may give the plaintiff the option of filing a remittitur, and thereupon enter judgment for the balance, not only where the damages are capable of ascertainment from the evidence with reasonable certainty, but in cases of unliquidated damages, and likewise in cases where exemplary or punitive damages have been awarded.

The excess of the verdict is not the determining factor in cases where a remittitur has been allowed, unless the verdict is so outrageously excessive and beyond all reason that in and of itself it clearly shows that it was the result of passion and prejudice.

The trial court is in a much better position to determine whether the excessive verdict was the result of passion and prejudice, and its determination should ordinarily be accepted.

Evidence reviewed, and held that, while the trial court found that a verdict in a libel suit for $35,000 was excessive, there is nothing in the record to indicate that such excess was the result of passion and prejudice.

[191 P. 443] Repetition of the alleged defamatory matter or other defamatory publication of similar character are admissible to show express malice on the part of the defendant.

Where the vice in an instruction is not pointed out to the trial court and proper exceptions saved, in the event the instruction is given, the appellate court will not review error predicated upon the giving of the same.

Every impartial and accurate report of any proceeding in a public law court is privileged.

While a person may publish a correct account of the proceedings in a court of justice, yet, if he discolors or garbles the proceedings, or adds comments and insinuations of his own in order to asperse the character of the parties concerned, it is libelous, and not privileged.

Where a party in a civil case does not ask the court for an instruction limiting the effect of evidence, he cannot complain of its failure to so instruct.

An appellant in a civil case cannot urge upon the court for consideration a question not raised in his assignments of error.

Ordinarily the fact as to whether a witness is a member of one political party or the other would have no effect upon his testimony or the weight to which it would be entitled, and it would be improper upon cross-examination to inquire into such matter; but in a case growing directly out of a political controversy, where the witnesses on either side may be more or less influenced by their political affiliations, it is proper on cross-examination to inquire into such matter.

In objecting to admissibility of evidence, it is the duty of counsel to advise the court specifically of the ground of objection, so that the same may be intelligently ruled upon, and in order to enable counsel to obviate the objection if possible; and a general objection that evidence is incompetent, irrelevant, and immaterial, or that a sufficient foundation has not been laid for its admission, is too general.

Where appellant had shown by its witnesses the fact of the presentation of a flag to a party, which it was claimed in the alleged libel that appellee had desecrated, it was permissible for appellee, in rebuttal, to show that the parties who so presented the flag were intoxicated.

What is done by the judge or what occurs in his presence is within his knowledge and must be recited over his certificate, and cannot be made a part of the record by ex parte affidavits in support of a motion for a new trial.

Additional Syllabus by Editorial Staff.

In deciding constitutional questions, and especially where a construction of the United States Constitution is involved, a state court should, in construing the state Constitution, give great weight to opinions by the United States Supreme Court, and should, of course, follow that court in its construction of the United States Constitution.

Where the trial court in a libel suit made no specific finding as to passion and prejudice, its approval of the remittitur necessarily found that the verdict was excessive, but that such excess was not the result of passion and prejudice, as otherwise it would have granted defendant's motion for a new trial.

Where express malice in the publication of libel charging a misdemeanor under the law of the state was proven, it was a proper case for the imposition of exemplary damages.

Error to District Court, Valencia County; M. C. Mechem, Judge.

Action by Henry Dreyfus against the New Mexican Printing Company and Bronson M. Cutting. Directed verdict for defendant Cutting, and verdict for plaintiff for $35,000 against the New Mexican Printing Company, its motion for new trial granted unless plaintiff remitted the verdict in excess of $10,000, which remittitur was filed, and judgment against the New Mexican Printing Company in that sum, and Ralph M. Henderson, its receiver, brings error. Affirmed.

Plaintiff's remission of a part of the verdict at the suggestion of the trial court, followed by judgment for the remaining sum, did not deprive defendant of his right under Const.N.M. art. 2, § 12, to have the question of damages tried by a jury.

E. R. Wright and Francis C. Wilson, both of Santa Fé, for plaintiff in error.

W. J. Eaton and M. C. Spicer, both of Socorro, for defendant in error.

ROBERTS, J.

On the 10th day of October, 1916, Henry Dreyfus filed a complaint against the New Mexican Printing Company and Bronson M. Cutting in the district court of Socorro county. As the trial court directed a verdict in favor of Mr. Cutting, no further[191 P. 444] mention need be made of his connection with the suit.

The complaint alleged that on the 7th day of October, 1916, the defendant corporation owned and published a newspaper known as the Santa Fé New Mexican; that said paper was a daily and circulated throughout the state of New Mexico, and especially in the county of Socorro; that on said date there appeared in said paper a statement as follows:

“This is the same county where a Bursum henchman named Dreyfus (meaning Henry Dreyfus, of Socorro, N. M., this plaintiff), in the days of Gov. Hagerman, tore down the American flag and stamped and spat upon it and got off with it.”

The complaint further alleged that this publication was a criminal charge against the plaintiff, in that to insult the Stars and Stripes is a misdemeanor under the laws of the state. The complaint set forth that the article was wrongfully, unlawfully, willfully, and maliciously published with intent to injure and degrade plaintiff and cause the public in general to believe that he had been guilty of the crime of insulting the Stars and Stripes, and of acts and conduct against the American flag disgraceful to him as an American citizen, which would bring him into contempt among the honorable people, and that the said article was false, scandalous, malicious, and libelous, and did and does expose the plaintiff to hatred, contempt, and ridicule. Judgment in the sum of $50,000 was asked.

The defendant answered, admitting the publication, but denied that the article so published was false, malicious, scandalous, and libelous, and that it did and does expose the plaintiff to contempt and ridicule. The New Mexican Printing Company further answered that the article published was true; that the matters and things therein concerning the plaintiff were, at the time they were done by him and ever since, matters of common knowledge in the state of New Mexico, and generally believed to be true by residents of the said county and state. The answer in this regard was as follows:

“And for further answer herein, and without waiving any previous or prior defense hereinbefore interposed, the defendant says that the plaintiff ought not to have his aforesaid action against him, this defendant, because he says that before the publication of the alleged injurious article described in said complaint, as this defendant is now informed, and therefore believes, the facts and acts of the plaintiff set forth in said publication did transpire and were true in substance and in fact, and that on or about the 22d day of September, 1906, the plaintiff, then probate judge of Socorro county, and at that time closely allied with a political faction which was doing what it could to oppose the then Governor of the territory of New Mexico, Herbert J. Hagerman, became angered at the preparations made for the reception of the said Governor of the territory of New Mexico, and tore down a large American flag from the decorations in front of one of the business houses in the town of Socorro, state of New Mexico, rent the said national emblem into pieces, and broke up the pole to which it was attached, and threw the pieces away, and that said incident was at the time commented upon by the said Governor at a reception tendered him in the local opera house of the said town of Socorro, state of New Mexico, in the course of an address made to some 250 citizens and residents of the said town of Socorro, state of New Mexico, all of which said facts were at the time reported in the Albuquerque Morning Journal,...