News Leader Co. v. Kocen

• Decision Date: 12 June 1939
• Court: Virginia Supreme Court
• Parties: NEWS LEADER CO. . v. KOCEN.

3 S.E.2d 385

NEWS LEADER CO. .

v.KOCEN.

Supreme Court of Appeals of Virginia.

June 12, 1939.

[COPYRIGHT MATERIAL OMITTED]

HOLT, J., CAMPBELL, O. J„ and GREGORY, J., dissenting.

Error to Law and Equity Court of City of Richmond, Part 2; Frank T. Sutton, Jr.,}udge.

Action for libel by Bessie Kocen against the News Leader Company. To review a judgment for the plaintiff, the defendant brings error.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Stuart G. Christian, Brockenbrough Lamb, and A. Hamilton Bryan, all of Richmond, for plaintiff in error.

Harry M. Herman, of Richmond, for defendant in error.

HUDGINS, Justice.

This writ of error brings under review the proceedings in the trial of an action for libel and insulting words against the News Leader Company, which culminated in a judgment for $2,500 on the verdict for plaintiff.

The News Leader Company publishes, in the city of Richmond, the Richmond News Leader, a daily (except Sunday) newspaper which has a large circulation. The article upon which the action is based was published in the "Home Edition" of the News Leader on August 18, 1937, under the heading,

"Police Arrest One as Gambler, "Charged with Promoting Cigarette Machine."

The body of the article, with the pertinent statements in italics, is as follows: "Richmond police, continuing their drive against cigarette or pin-ball machines and other gambling devices, arrested Douglas Schools, 18, of 614 North Twenty-third Street, on a warrant charging him with violating the State's anti-gambling laws. Officers Dalton and Brooks, who made the arrest, said Schools was promoting a cigarette machine game. The machine was con fiscated and Schools was released on bail, pending a hearing in Police Court tomorrow. Young Schools is the first person taken into custody for operating a gambling machine since Justice Folkes announced that the next conviction on this charge would draw a fine of $250 and costs. At the same time, Commonwealth's Attorney Haddon declared he would prosecute distributors of such machines, as well as proprietors of stores in which they were seized. In this instance, however, the distributor of the machine was not arrested, Police Chief R. B. Jordan explained, because the machine itself does not 'pay off'. The player receives extra packs of cigarettes, which are handed across the counter, when the machine registers certain numbers, he said.

"Police also issued a warrant against Mrs. Bessie Kocen, of 2317 Floyd Avenue, charging her with operating a clearing house game. For this offense, Justice Folkes recently has been dealing out fines of $100 and a sentence of one month in jail, in an effort to break up the 'numbers' racket by imposing severe penalties. Mrs. Kocen furnished bail for her appearance in Police Court Friday."

Defendant, in its grounds of defense, states:

"2. The circumstances of the publication and the sources of information upon which the defendant relied are as follows:

"On August 18, 1937, there appeared on the Case Book in the Police Court of the City of Richmond, Virginia, an entry to the effect that Mrs. Bessie Kocen had been charged with operating a certain game of chance commonly called 'clearing house, ' and that she had furnished bail for her appearance in that Court on Friday, August 20, 1937. The address of the accused did not appear on said Case Book. One of the reporters of the defendant, on the morning of August 18, 1937, went to said Police Court and, upon examining said Case Book, made a note of the facts there shown about the said Mrs. Bessie Kocen, but before leaving said Court, he inadvertently failed to look at the criminal warrant against Mrs. Kocen upon which her address was given as 1000 St. John Street, Richmond, Virginia. Said reporter, arriving at the office of the defendant, consulted the City Directory of the City of Richmond, Virginia, to ascertain the address of the accused and there finding listed a Mrs. Bessie Kocen, the plaintiff, whose address is 2317 Floyd Avenue, Richmond, Virginia, he er-roneously used this as the address of the accused in the publication complained of. Said reporter, thinking the name of Kocen to be an unusual one, and assuming that there was only one Mrs. Bessie Kocen living in said City, did not, after finding therein the name of Mrs. Bessie Kocen, whose address is 2317 Floyd Avenue, search said City Directory further and, therefore, failed to see there listed another Mrs. Bessie Kocen, the accused, whose address as aforesaid is 1000 St. John Street.

"3. The defendant denies any malice on its part in making said publication and shows that the error which it made in giving the address of the accused as 2317 Floyd Avenue was an honest, unintentional mistake, and that with the exception of said error, the publication complained of is a true and accurate account of the charges against the said Mrs. Bessie Kocen of 1000 St. John Street.

"4. On the afternoon of August 18, 1937, the plaintiff telephoned the defendant and advised it of the error which had been made and asked for a correction thereof. The defendant, through said reporter, explained to the plaintiff how said error had occurred, apologized for having made the mistake, and assured the plaintiff that the defendant would print a correction. This the defendant did in a later edition of its newspaper that same day, and, in addition thereto, it also printed in its newspaper on the following day, that is, August 19, 1936, a blocked-off correction, under prominent headlines, as follows:

" 'Wrong Name Given in Court Case.'

"Mrs. Bessie Kocen, of 2317 Floyd Avenue, was erroneously reported as having been summoned to appear in Police Court to answer a charge of operating a 'clearing house' game. The person summoned was another Mrs. Bessie Kocen who lives at 1000 St. John Street."

The uncontradicted evidence fully establishes the material statements set forth in the grounds of defense. Even so, this evidence convicts the writer of the article of negligence, as the correct address of the woman charged with the crime was written on the warrant. Her name and address were also listed on the next line following the name of Mrs. Bessie Kocen, of 2317 Floyd Avenue, in the city directory consulted by the reporter.

The record contains no evidence of actual malice or of a reckless disregard of plaintiff's rights. Hence, no question of punitive or exemplary damages is involved. The. record does reveal a careless mistake which resulted in an innocent person being falsely charged with the commission of a criminal act. Under these facts plaintiff is entitled to recover. The vital question presented is the amount of that recovery.

The larger aspect of this case presents two conflicting interests. On the one hand we have a newspaper, with a large circulation in the city of Richmond, engaged in publishing the fact that the authorities were making an extensive drive on, a certain class of racketeers operating in the city of Richmond and elsewhere. During this drive numerous articles appeared in the paper relative to the activities of the police and the various parties who had been arrested and charged with some phase of this racketeering. The article in question was published as a part of the combined effort of the newspaper and the police to eliminate this form of law violation. Unfortunately and unintentionally, but by the carelessness of an agent of the newspaper, the correct name but the wrong address of one of the persons charged with a crime was given in the publication. It so happened that there lived in the city another Bessie Kocen, who is the sister-in-law of the Bessie Kocen arrested. One Bessie Kocen lived at 2317 Floyd Avenue and the other at 1000 St. John Street. The one living on 2317 Floyd Avenue was not arrested, and hence her rights as a private citizen were unintentionally invaded by identifying her as one of the persons arrested and charged with a criminal offense. As this right of a citizen was violated by the negligence of defendant, she is entitled to vindication. The fact that defendant was engaged in publishing the proceedings of a criminal case, which is a matter of more or less public concern, does not relieve it of the duty of being fair and accurate in identifying persons charged with criminal offenses. However, in the vindication of these private rights, the defendant should not be made to pay more than a sum sufficient to afford a reasonable and fair compensation for the injury inflicted.

This leads to the questions of damages and mitigation of damages, which are involved in one form or other in each of the three assignments of error stated in the petition.

f4J To ascertain what is a fair and reasonable compensation for such an injury, inflicted under the circumstances, isnot easy. It has been repeatedly stated that there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation. Corr v. Lewis, 94 Va. 24, 26 S.E. 385.

Chief Justice Campbell, in the recent case of Kroger Grocery Co. v. Rosen-baum, 171 Va. 158, 164, 198 S.E. 461, 463, quoted with approval the following statement made by Judge Buchanan in Boyd v. Boyd, 116 Va. 326, 82 S.E. 110, Ann.Cas. 1916D, 1173: "'In such cases there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation. Where that is the case, the general, if not the universal, rule in this state is that the verdict of the jury will not be set aside unless it is so grossly excessive (or inadequate) as to indicate that the jury in rendering it were actuated by prejudice, passion, or corruption, or that they have been misled by some mistaken view of the merits of the case. Southern R. Co. v. Smith, 107 Va. 553, 560, 59 S.E. 372, and cases cited; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 47 (48), 22 S.E. 811; Chesapeake & O. R. Co. v. Harris, 103 Va. 635, 643, 49 S.E. 997.'"

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