Holmes v. Jones

• Decision Date: 03 June 1890
• Citation: 121 N.Y. 461,24 N.E. 701
• Parties: HOLMES v. JONES.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 461

24 N.E. 701

HOLMES

v.JONES.

Court of Appeals of New York.

June 3, 1890.

Appeal from supreme court, general term, third department.

This is an action of libel brought against the New York Times by the plaintiff, who was engaged in the business of an undertaker and embalmer at Saratoga Springs. He was employed in his business about the body of Gen. Grant, at Mount McGregor, in July, 1885, and subsequently in the fall of 1886 rendered a bill of $500 for his services to the family of the deceased, and, the bill not having been paid, the same was voluntarily paid by the proprietors of the New York Sun. The alleged libel concerned the presentation and payment of the bill, and was published on the 22d day of November, 1886. In separate paragraphs in his complaint the following language was complained of as libelous: ‘(1) No consultation was had with General Grant's family to determine as to the justice of the demand, although such consultation could easily have been had and the injustice of the claim have been made manifest. (2) That the editor of the Sun saw fit to pay a claim that the family of the deceased pronounced blackmailing in color, and in no way meritorius, is a matter in which the public has no concern; but the editor cannot plead that he was unaware of the facts of the case, as Prof. Sullivan and myself notified him, and publication of our letters was refused. (3) It has been stated that Mr. Holmes was not in a fit condition to perform professional duties for a part of the time during which he claims to have been rendering services.’‘The night that I arrived at Mount McGregor Mr. Holmes was under the influence of liquor at the hotel. His condition was patent to all who saw him. (4) He was there at six in the evening, and Mr. Holmes had nothing to do with it while he was there. Mr. Holmes was drunk at the hotel that evening, and was going to and coming from the bar all the time. This was before the body was placed in the casket. Anxiety was felt lest he should insist upon going to the cottage and create an unseemly scandal there by his condition and appearance.’ The defendant, in his answer, justified all the language complained of as libelous, and set up matter in mitigation. The action was brought to trial, and resulted in a verdict of $5,000. The defendant made motion for a new trial on the minutes of the trial judge, which was denied, and then he appealed to the general term from the order denying his motion and from the judgment entered upon the verdict. The general term reversed the judgment, and granted a new trial unless the plaintiff stipulated to reduce the verdict to $2,000. The plaintiff gave such stipulation, and the judgment was reduced and affirmed as reduced; and then the defendant appealed to this court.

B. F. Einstein, for appellant.

Matthew Hale, for respondent.

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

Several rulings of the trial judge made during the progress of the trial upon questions of evidence are complained of. Those rulings were clearly correct, and need no further notice. The counsel for the plaintiff, while summing up to the jury, read to them the following paragraph from the answer: ‘That the plaintiff has been for a long time immediately prior to and was on November 22, 1886, and has been since, addicted to drinking spirituous and intoxicating liquors, and also to drinking such liquors to excess, and had been on various occasions prior to November 22, 1886, visibly under the influence of such liquors while attending funerals in his capacity as an undertaker in the village of Saratoga Springs, and that all these matters were known to a great number of residents of the said village prior to November 22, 1886.’ To the reading of this the counsel for the defendant objected, for the reason that it had not been read in evidence. The judge overruled the objection, remarking, ‘It is not the evidence, but it is part of the record, and for the purpose of asertaining what the issue is it may be referred to.’ This matter was set up in the answer in mitigation of damages; but no evidence whatever was given to prove these allegations. There is no rule of law which requires a party in any action to put his adversary's pleadings in evidence before his counsel can be allowed to comment upon them in his address to the jury. Statements, admissions, and allegations in pleadings are always in evidence for all the purposes of the trial of the action. They are made for the purpose of the trial, and are before the court and jury, and may be used for any legitimate purpose. White v. Smith, 46 N. Y. 418;Tisdale v. Canal Co., 116 N. Y. 416, 22 N. E. Rep. 700.

The judge charged the jury, in substance, that if the defendant failed to establish the justification of the libel set up in the answer, they could determine whether it was set up in good or bad faith, and that if they found it was set up in bad faith they could take that into consideration in estimating the damages to be awarded by them; and in this portion of his charge there was no error. Distin v. Rose, 69 N. Y. 122;Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. Rep. 457. So far as the libel was not justified, it was for the jury to determine the amount of the damages to be awarded therefor. If they came to the conclusion, from the circumstances and the nature of the charge made, that the publication was malicious, in bad faith, or recklessly, carelessly, or wantonly made, they could go beyond compensation and a ward punitive damages. Taylor v. Church, 8 N. Y. 452;Samuels v. Association, 75 N. Y. 604, 9 Hun, 288;Hamilton v. Eno, 81 N. Y. 116;Bergmann v. Jones, 94 N. Y. 51.

If the judgment entered upon the verdict was in other respects right, and free from error, the general term, upon the appeal to it, had the right to make the order reducing the verdict...