Holmes v. Jones

• Decision Date: 08 October 1895
• Citation: 147 N.Y. 59,41 N.E. 409
• Parties: HOLMES v. JONES.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 59

41 N.E. 409

HOLMES

v.JONES.

Court of Appeals of New York.

Oct. 8, 1895.

Appeal from supreme court, general term, Fifth department.

Action by Ebenezer Holmes against George Jones, treasurer of the New York Times, for libel. After the commencement of the action, defendant died, and it was continued against Gilbert E. Jones as treasurer. From an order of the general term (28 N. Y. Supp. 1117) affirming a judgment entered on a verdict for plaintiff, defendant appeals. Reversed.

For prior report, see 24 N. E. 701.

This is the second appeal to this court in this action. On the former appeal the judgment in favor of the plaintiff was reversed because of the refusal of the trial judge to instruct the jury that the defendant had established a justification of the charge in the article of November 22, 1886, imputing dishonesty and unfair dealing on the part of the plaintiff in presenting an unjust and exaggerated claim to the family of Gen. Grant for his services as undertaker on the occasion of the death of Gen. Grant, July 23, 1885. On the second trial the plaintiff, although he had set forth in his complaint this charge as to the unjust and extortionate character of the claim of Holmes & Co. as one of the grounds of action, omitted to read this part of the libelous article to the jury, but put in evidence and read to the jury that part only which alleged, in substance, that on the afternoon and evening of the 23d of July, during the time when, as the plaintiff claimed, he was rendering service as undertaker, he was intoxicated. The defendant, in his answer, justified both the charge of attempted extortion and the charge of drunkenness, and also alleged, in mitigation of damages, the circumstances under which the publication was made. The defendant, after the plaintiff had rested, put in evidence and read to the jury the whole article, and gave evidence tending to justify the charge of drunkenness. This was met by counter evidence on the part of the plaintiff, and upon this issue (the only one which was submitted to the jury) the jury found for the plaintiff, and rendered a verdict in his favor for $3,500. During the course of the trial the defendant offered to prove in mitigation of damages that the plaintiff presented to the family of Gen. Grant an exorbitant bill for his services, and, in substance, to prove the truth of the alleged libel relating to that subject. The plaintiff objected to the evidence, and the court excluded it, and the defendant excepted. The question is, was it competent for the defendant, in mitigation of damages as to that part of the alleged libel charging drunkenness, to show that the charge of attempted extortion made in the article was true? The plaintiff, who carried on the business of an undertaker at Saratoga Springs, was, through Mr. Arkell, and by direction of Dr. Douglas, notified from Mt. McGregor, on the morning of July 23, 1885, to come to the latter place, and immediately responded to the notification, and took charge of the body, and proceeded with the process of embalming. In the afternoon of the same day Mr. Merritt, an undertaker from New York, who had been sent for by the son of Gen. Grant, arrived, and from that time assumed control. He superseded the plaintiff, and practically the whole service rendered by the plaintiff was confined to what he did preceding the arrival of Merritt. He, however, visited Mt. McGregor daily until the 30th of July, the day when the body was taken to New York. Subsequently the plaintiff sent a bill for $500 to Col. Grant for his services and disbursements. The bill was given by Col. Grant to Merritt. Correspondence ensued between Merritt and the plaintiff. At Merritt's suggestion, the plaintiff had an interview with an army officer of the United States with respect to the bill, but it was not paid. Several months later the plaintiff sent the bill again to Col. Grant, who returned it, accompanied with a letter, in substance denying the validity of the claim, and stating that Mr. Merritt was alone employed to superintend the preparations for the funeral of Gen. Grant, and advising plaintiff that the bill should be presented to Merritt. On the 30th of September of the next year a telegraphic dispatch, purporting to have been sent from Saratoga Springs, was printed in the Sun, a newspaper of the city of New York, stating that the plaintiff's firm had notified Mr. Arkell of a suit about to be brought against him for services rendered by the firm in embalming the body of Gen. Grant, and purporting to give an account of the services. It stated that the bill (a copy of which was given) had been presented to everybody connected with the family of Gen. Grant except Mrs. Grant, and had been ‘repudiated all around,’ and that the attorney for the plaintiff said ‘that he had found no one connected with the deceased general who seems to feel any moral obligation to pay for the care of his remains and their preservation for burial, and so they decided to sue Mr. Arkell.’ Appended to the dispatch as published was a statement from the editor of the Sun that, ‘If Messrs. Holmes & Co. will be good enough to send the bill in question to the editor of the Sun, he will remit them the amount.’ A few days later, on the 4th of October, 1886, a letter from Holmes & Co., addressed to the editor of the Sun, was printed in that paper, purporting to be ‘a plain statement of the facts' relating to the bill of Holmes & Co., in answer to the many statements made in the public press, ‘which are either perversions of the truth or positive falsehoods.’ The letter then proceeded to narrate the circumstances of the employment of Holmes & Co., the services rendered, the efforts made to collect the bill, and their failure, and that as a last resort they were advised to fall back on Mr. Arkell. Referring to the circumstances of this employment, and their subsequent treatment, the writers said: ‘We feel a degree of certainty, however, that if the dead general were now alive, he would see that similar services rendered to his household should not remain long unpaid, nor hesitate to acknowledge a claim in favor of those who performed them.’ The letter concluded with an intimation that if the offer of the Sun was still open, and those whom the writers deemed ‘legally and morally bound to pay the claim’ do not pay it, the offer would be accepted. Subsequently, and on the 13th of October, 1886, the bill was paid to Holmes & Co. by the Sun, and the fact of such payment was announced in that paper. Meanwhile, after the publication of the letter of October 4, 1886, and the payment of the bill, letters were written to the Sun by Harrigan and Sullivan, who assisted Merritt in taking charge of and embalming the body, controverting in many respects the statements in the letter of Holmes & Co.; but these letters the Sun did not publish. Subsequent to the payment of the bill by the Sun, and before the publication of the alleged libel, correspondence took place between Col. Grant and the Sun, in which Col. Grant, while denying the justice of the claim, stated that the family were unwilling that the bill should be paid by the Sun, and he inclosed a check for the amount, which the Sun declined to receive, and it was returned to Col. Grant. On the 22d of October, 1886, a communication from Harrigan, the embalmer employed by Merritt, was published in The Press &...