News Leader Co. v. Kocen

• Decision Date: 12 June 1939
• Docket Number: Record No. 2042.
• Citation: 173 Va. 95
• Court: Virginia Supreme Court
• Parties: THE NEWS LEADER COMPANY v. BESSIE KOCEN.

Page 95

173 Va. 95

THE NEWS LEADER COMPANY v. BESSIE KOCEN.

Record No. 2042.

Supreme Court of Virginia, Wythebille.

June 12, 1939.

Present, All the Justices.

1. LIBEL AND SLANDER — Malice — Effect of Absence of Malice on Punitive Damages. — Where the record in an action for libel and insulting words contains no evidence of actual malice or of a reckless disregard of plaintiff's rights, no question of punitive or exemplary damages is involved.

2. LIBEL AND SLANDER — Right to Recover — Words Charging Crime — Case at Bar. — In the instant case, an action against a newspaper for libel and insulting words, the evidence showed that in an article published in the newspaper the correct name but the wrong address of a person charged with a crime was given in the publication through the negligence of a reporter, and that plaintiff, having the same name as the person charged with the crime, lived at the address given in the newspaper account.

Held: That since a careless mistake resulted in an innocent person being falsely charged with the commission of a criminal act, plaintiff was entitled to recover.

3. LIBEL AND SLANDER — Report of Judicial Proceedings — Defendant Not Relieved of Duty to Be Fair and Accurate — Case at Bar. — In the instant case, an action against a newspaper for libel and insulting words, the evidence showed that in an article published in the newspaper the correct name but the wrong address of a person charged with a crime was given in the publication through the negligence of a reporter, and that plaintiff, having the same name as the person charged with the crime, lived at the address given in the newspaper account.

Held: That the fact that defendant was engaged in publishing the proceedings of a criminal case, which is a matter of more or less public concern, did not relieve it of the duty of being fair and accurate in identifying persons charged with criminal offenses.

4. LIBEL AND SLANDER — Damages — Mistake in Address of Person Charged with Crime — Reasonable and Fair Compensation — Case at Bar. — In the instant case, an action against a newspaper for libel and insulting words, the evidence showed that in an article published in the newspaper the correct name but the wrong address of a person charged with a crime was given in the publication through the negligence of a reporter, and that plaintiff, having the same name as the person charged with the crime, lived at the address given in the newspaper account.

Held: That in vindication of the private rights of plaintiff, defendant should not be made to pay more than a sum sufficient to afford a reasonable and fair compensation for the injury inflicted.

5. LIBEL AND SLANDER — Damages — No Rule of Law for Fixing Measure of Damages. — There is no rule of law fixing the measure of damages in an action for libel and insulting words, nor can such a measure be reached by any process of computation.

6. LIBEL AND SLANDER — Damages — When Verdict Set Aside for Excessiveness or Inadequacy. In an action for libel and insulting words, 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.

7. LIBEL AND SLANDER — Damages — Evidence Creating Suspicion of Attempt to Magnify Damage — Case at Bar. — In the instant case, an action for libel and insulting words, plaintiff had been erroneously identified in a newspaper article as having been arrested on a criminal charge. The reporter who made the mistake apologized immediately upon notification and a correction was published by the paper. Plaintiff testified that she was not satisfied with the apology and that the paper should have "given me a better write-up than they did." There was evidence tending to show that plaintiff was mortified by people telephoning her about gambling, and because the matter was mentioned in a derogatory manner to her children; that she was hysterical, sleepless, had headaches, and declined to go out because she thought people were thinking about the insult to her.

Held: That while the weight to be given the evidence was peculiarly a question for the jury, nevertheless it created a strong suspicion that under the circumstances plaintiff had made a deliberate attempt to exaggerate and magnify the amount of her damage.

8. LIBEL AND SLANDER — Damages — Large Verdict as Incentive for Minute Examination of Instructions. — In an action for libel and insulting words, where the size of the verdict would not justify the Supreme Court of Appeals in disturbing the verdict on the sole ground that it was excessive, such verdict would be an incentive for the Supreme Court of Appeals to examine the instructions with minute care to ascertain whether or not they were couched in language which might have been calculated to mislead the jury or to give them some misconception of the merits of the case.

9. LIBEL AND SLANDER — Instructions — Instruction That Plaintiff Was Entitled to Recover "Substantial Compensatory Damages" — Case at Bar. — In the instant case, an action against a newspaper for libel and insulting words, plaintiff had been erroneously identified in a newspaper article as having been arrested on a criminal charge. The court instructed the jury that since plaintiff was charged with the commission of a crime, the newspaper article was libelous per se and plaintiff was entitled to recover "substantial compensatory damages." Defendant introduced evidence of a published retraction and apologies by its reporter in mitigation.

Held: That the instruction was erroneous, since, by the express mandate of section 6240a of the Code of 1936, certain evidence in mitigation, designed to mitigate general damages which plaintiff theretofore had been entitled to recover, was made admissible, and the jury might have determined that the evidence introduced under the provisions of this section eliminated all general or compensatory damages not "actual pecuniary," and might therefore have allowed plaintiff only nominal damages.

10. LIBEL AND SLANDER — Questions of Law and Fact — Weight of Evidence Introduced in Mitigation of Damages. — The weight to be given evidence introduced, in an action for libel and insulting words, in mitigation of damages under section 6240a of the Code of 1936, is peculiarly within the province of the jury and not of the court.

11. DAMAGES — Nominal Damages — When Awarded. — Nominal damages are those recoverable where a legal right is to be vindicated against an invasion that has produced no actual present loss of any kind or where, from the nature of the case, some injury has been done the amount of which the proofs fail to show. The law infers some damage from the invasion of a right; and if no evidence is given of any particular amount of loss, it declares the right by awarding what it terms "nominal damages."

12. DAMAGES — Compensatory Damages — What Constitute. — Actual or compensatory damages, the terms being synonymous, are damages in satisfaction of, or in recompense for, loss or injury sustained. Either term covers all loss recoverable as a matter of right and includes all damages other than punitive or exemplary damages.

13. DAMAGES — Compensatory Damages — Not Dependent upon Proof of Malice. — Actual or compensatory damages are not dependent upon proof of malice.

14. INSTRUCTIONS — By Whom Prepared — Effect. — Instructions are usually prepared by attorneys, but, when given to the jury by the trial judge, they are the instructions of the court and contain the principles of law by which the jury are to be guided.

15. INSTRUCTIONS — Form and Requisites — Use of Language of Appellate Court. — The mere fact that certain language has been used by a judge of an appellate court in rendering an opinion is not of itself sufficient to justify the use of the same language by a trial court in its instruction to the jury.

16. LIBEL AND SLANDER — Instructions — Instruction That Plaintiff Was Entitled to Recover "Substantial Compensatory Damages" — Case at Bar. — In the instant case, an action against a newspaper for libel and insulting words, plaintiff had been erroneously identified in a newspaper article as having been arrested on a criminal charge. The court instructed the jury that since plaintiff was charged with the commission of a crime, the newspaper article was libelous per se and plaintiff was entitled to recover "substantial compensatory damages." Defendant introduced evidence of a published retraction and apologies by its reporter in mitigation.

Held: That the instruction was erroneous because it emphasized the right of plaintiff to recover substantial damages without any instruction laying equal emphasis on the fact that the jury might return a verdict for nominal damages.

17. LIBEL AND SLANDER — Instructions — Damages — In Absence of Proof of Actual Damage — Case at Bar. — In the instant case, an action for libel and insulting words, the publication was libelous per se and the trial court refused to give an instruction to the effect that if the jury believed from the evidence that "there is want of proof of actual damage to the plaintiff resulting proximately from the defendant's acts, you may award her nominal damages only."

Held: That since the words uttered were actionable per se, there was no error in refusing the instruction.

18. LIBEL AND SLANDER — Damages — Proof of Actual Loss Unnecessary Where Words Actionable Per Se. — In an action for libel and insulting words, where the libel or the words uttered are actionable per se, it is not necessary in order for plaintiff to recover to prove actual or pecuniary loss, as the law presumes general damages in such cases.

19. LIBEL AND SLANDER — Damages — Jury's Duty to Consider Mitigating Circumstances. — Where, in an action for libel and insulting words, the grounds of defense and the...