Malloy v. Bennett

• Decision Date: 21 February 1883
• Citation: 15 F. 371
• Parties: MALLOY v. BENNETT.
• Court: U.S. District Court — Southern District of New York

15 F. 371

MALLOY v. BENNETT.

United States Circuit Court, S.D. New York.

February 21, 1883

Wm. L Royall, for plaintiff.

John Townsend, for defendant.

WALLACE J.

The defendant moves for a new trial upon the several grounds of surprise, excessiveness of damages, and error in the rulings upon the trial. The action is for libel. The jury found a verdict for plaintiff for $20,000.

On October 31, 1881, the New York Herald, a newspaper of which the defendant was the proprietor, published an account of a disastrous fire which on the day before had nearly destroyed the village of Edgefield, South Carolina. The account purported to be a communication from the special correspondent of the Herald. It occupied nearly a column of the paper, and was calculated to attract the attention of all the readers of the paper. After describing the incidents, and enumerating the losses and peril of life caused by the fire the account stated that the fire was supposed to be the work of an incendiary, and that the leading citizens of the place were of the opinion 'that one Malloy, a white man who some time ago was suspected of burning his own store for the purpose of obtaining the insurance, kindled the fire which resulted so disastrously. ' The account proceeded to set forth the suspicious circumstances pointing to the guilt of Malloy, and concluded by the statement that he had hastily left the place; that a party of men were out in search for him; and that the people of the place were swearing vengeance upon him, and he was to be summarily dealt with if caught.

Upon the trial it was proved that the whole account, so far as it related to the charge of incendiarism, was a fabrication. To show that the plaintiff was the Malloy referred to, it was proved that he was the only person of that name in Edgefield and that he had, a year or so before, lost his store by fire and his claim for insurance upon it had been contested by the insurer.

So far as the present motion proceeds upon the grounds of surprise, the case made for the defendant does not merit discussion. If there was surprise it was inexcusable; and if the letters which the defendant forgot to offer in evidence were of any importance, the fact cannot be ascertained, because copies of them have not been exhibited. The omission to show the letters is significant, and raises a somewhat cogent inference against their importance.

The rulings upon the trial, which are asserted to be erroneous, relate to the reception of evidence against defendant's objection, and to the instructions to the jury. Most of them involve only the application of familiar rules of evidence, and the elementary principles of the law of libel.

It is urged that it was error to permit the plaintiff to show affirmatively that the statements in the publication relating to the charge against the plaintiff were without color of truth. It is not necessary for the plaintiff in a suit for libel to disprove the truth of the criminal charges contained in it; but no doubt is entertained that it is always competent to give affirmative proof of the falsity of the statements in order to enhance damages. Fry v. Bennett, 28 N.Y. 324. It is only by such evidence that the difference between a technical or erroneous misstatement and a reckless or cruel perversion of the facts can be discriminated, and the essential character of the publication appreciated.

The instruction to the jury that the injury to the plaintiff's feelings caused by the publication was to be considered in awarding damages, was confidently challenged on the argument. All the commentators and authorities treat mental suffering as one of the elements of the injury for which compensation should be awarded. 2 Greenl.Ev. § 267. Even when the injury is not malicious, but merely negligent, the plaintiff is entitled to a solatium for his mental suffering. Blake v. Midland Ry. Co. 10 Eng.Law & Eq. 437; Seger v. Town of Barkhamshall, 22 Conn. 296, 298; Canning v. Williamstown, 1 Cush. 451; Ransom v. N.Y. & E.R. Co. 15 N.Y. 415.

It is insisted that the instructions in reference to exemplary damages were erroneous. The jury were instructed that although there was no reason for imputing personal malice towards the plaintiff to the defendant, still, they were at liberty to consider whether there was such recklessness in the publication, and such indignity in the subsequent treatment of the plaintiff by the Herald, as to entitle plaintiff to exemplary damages. It was in evidence that although the plaintiff had twice applied to the managers of the newspaper for the name of the author of the communication, no notice was taken of the request; but that a month or so after the publication an editorial paragraph was published which was capable of being construed as derogatory to the plaintiff.

The argument for the defendant seems to assume that the proprietor of a newspaper has some peculiar immunity from liability for exemplary damages; that he should not be held responsible for the acts of his employes; and that in this case if they were reckless, indifferent, or indecent in their treatment of the plaintiff, their conduct should not be imputed to him. There is nothing in the law of damages or of principal and agent to justify such an assumption. The action of libel, so far as it involves questions of exemplary damages and the law of principal and agent, is controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary and punitive damages is not peculiar to actions of defamation; it exists whenever a tortious injury has been inflicted recklessly or wantonly; and it is not limited to cases where the injury has resulted from the personal malice or recklessness of the defendant. It is recognized and enforced against employers when there has been gross misconduct on the part of their employes. Beach v. Ry. Co. 1 Dill. 569; Milwaukee & St. P.R. Co. v. Arms, 91 U.S. 489; Phila., W. & B.R. Co. v. Quigley, 21 How. 202. The authorities are ample to the effect that...