Smith v. Sun Printing & Pub. Ass'n

• Decision Date: 18 April 1893
• Citation: 55 F. 240
• Court: U.S. Court of Appeals — Second Circuit
• Parties: SMITH v. SUN PRINTING & PUB. ASS'N.

55 F. 240

SMITH v. SUN PRINTING & PUB. ASS'N.

United States Court of Appeals, Second Circuit.

April 18, 1893

[Copyrighted Material Omitted]

Franklin Bartlett, for plaintiff in error.

J. D Fessenden, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges.

LACOMBE Circuit Judge.

Plaintiff is a married woman, residing with her husband at Toronto Can. In the month of June her husband came to New York, and on the 8th of that month plaintiff left Toronto to join him there. By a prior arrangement between them, she was accompanied on her journey by a Mr. Edward Rutherford, of Toronto,--a friend of her husband and herself. When the train arrived, they were met at the station by her husband. On June 14, 1890, the following statement appeared in the Evening Sun, a daily paper published in the city of New York by the defendant:

'Did She Go with a Handsomer Man?

'Reported Sensational Elopement in Canadian High Life.

'Toronto, Ontario, June 13th. Society was excited last night about the elopement of Mrs. Smith, the wife of one of the biggest merchants in Toronto, and Edward Rutherford, who belongs to one of the first families. He is a bachelor of thirty. For some time past their intimacy was freely spoken of, and when both were missing, and no explanations were given, tongues wagged freely. A private dispatch from New York, received last night, said they were both seen in that city. Mr. Smith had paid no attention to the scandalous talk until the receipt of this message, when he at once started for New York. His friends say that he has not lost confidence in his wife, and that his object is to trace her actions in Montreal and Boston.'

The article was forwarded to the defendant, in the regular course of business, by a news agency to which it was a subscribed, and was published without any effort at verification of its statements. Although it was admitted by the defendant that the charge therein contained-- that plaintiff had eloped from her husband-- was false, no retraction was ever published in defendant's paper.

Plaintiff brought her action for libel, and upon a trial before Judge Shipman and a jury recovered a verdict of $7,500. A motion was thereupon made to the trial judge to set the verdict aside, which was denied. To review errors in the trial below, this writ of error was taken.

The general subject of the responsibility of proprietors of newspapers for libels such as this, and published in the same way, was discussed by this court in Morning Journal Ass'n v. Rutherford, 2 C.C.A. 354, 51 F. 513, where the same libel, except for the headlines, was before the court. It will only be necessary, therefore, to dispose of the several exceptions reserved in the case at bar, and argued by the plaintiff in error.

1. Defendant contends that the circuit court had no jurisdiction of the case, because the requisite citizenship of the plaintiff did not appear of record. It is averred in the first paragraph of the compliant that plaintiff 'is, and always has been, an honest, moral, and loyal subject of her majesty, Victoria, queen of England, and as such has resided for a long time, and now resides, at Toronto, Can.,' etc. The answer admits the residence at Toronto, but denies any knowledge or information sufficient to form a belief as to the other allegations set forth in said first paragraph. John C. Smith, the plaintiff's husband, testified that he had 'lived in Toronto all his life. ' If so he must have been born there, and was therefore a British subject. The plaintiff testified on October 20, 1891, that she had been married to John C. Smith 'nearly six years,' during which time she also resided there. By her marriage, her nationality became that of her husband, and the evidence is quite sufficient to establish the averments of the complaint, especially as no objection to its sufficiency was interposed at the trial.

2. Defendant contends that the court erred in allowing one witness to answer the question. 'Did you know to whom the article (the libel) related when you read it?' and another to answer the question, 'Did you know to whom it alluded? ' Having answered these questions in the affirmative, the witnesses were both asked to 'state the reasons why they knew. ' The defendant relies on the cases of Van Vechten v. Hopkins, 5 Johns. 211, Maynard v. Beardsley, 7 Wend. 560, and Gibson v. Williams, 4 Wend. 320, in which it is held that in an action for libel a witness should not be allowed to state his opinion as to whom he understood the defendant to mean, but must be strictly confined to a statement of facts, from which it is for the jury, under direction of the court, to draw such inferences as may be warranted. We do not deem it necessary in this case to enter into any extended discussion as to the authority of these cases, and to what extent, if at all, a witness who is not an expert may testify to his opinion or judgment, when said opinion is coupled with a statement in detail of the facts and circumstances upon which he founds it,-- an exception from the general rule well recognized in certain cases. Insurance Co. v. Lathrop, 111 U.S. 612, 4 S.Ct. 533. In the case at bar, although the answer denied that the article complained of was published of or concerning the plaintiff, and averred that it referred 'to some other Mrs. Smith,' there was practically no dispute as to the identity of the person referred to. No evidence whatever was introduced to show that there was any other Mrs. Smith to whom the article could apply. It was testified by a witness well acquainted with the parties, and who had resided in Toronto for 29 years, that there was not in 1890 any person in Toronto, other than the Edward Rutherford above mentioned, to whom the article could relate, or who in any way answered the description contained in the article, and that there was not at the time mentioned in Toronto any Mrs. Smith, other than the plaintiff, who was known to be on terms of intimate acquaintance with the said Edward Rutherford. To this evidence defendant did not object. Irrespective entirely of all testimony as to the opinions of witnesses, there was evidence, wholly uncontradicted and unquestioned, of facts which abundantly established the identify of plaintiff with the Mrs. Smith named in the libel. In the absence of any evidence showing the existence of any other Mrs. Smith to whom the article might apply, the circumstance that plaintiff was the Mrs. Smith who early in June went from New York to Toronto with Edward Rutherford was quite sufficient to warrant the conclusion that she was the individual referred to as an eloping wife. In this view, defendant, upon the trial, seems to have concurred, for he took no exception to the charge of the court that there was 'no room for doubt that the plaintiff was the Mrs. Smith to whom the libel was uttered by its original author,' and 'that the only question in real and actual dispute is the question of damages. ' If, then, the admission of the opinions of the two witnesses above referred to was error, it did not prejudice the defendant. Perfectly competent evidence, to which no objection was interposed, so abundantly established the affirmative of that issue against the defendant that the court was justified in taking it from the jury, as it practically did, and the objectionable evidence, which was confined to this issue, could not have operated to the defendant's detriment upon their minds.

3. The exceptions argued in defendant's 5th, 8th, 9th, and 10th points may be disposed of in like manner. They all relate to the admission of testimony bearing on the question of identity. If every item of testimony thus objected to where thrown out, there would be sufficient left in the case, in the absence of a scintilla of evidence that the article was intended to apply to any one else, to warrant a court in instructing the jury that, upon the question of identify, the plaintiff had made out her case by undisputed testimony. Therefore, if all defendant's objections above enumerated were sound, the admission of the evidence they cover has worked no prejudice.

4. The defendant also excepted to the admission of testimony by the plaintiff as to an arrangement alleged to have been made between her husband and Mr. Rutherford prior to her starting for New York, the witness not being present when such arrangement was made. This was hearsay, and improperly admitted, but as the husband subsequently, of his own knowledge, testified, without objection, to the same arrangement, which is in no way disputed or controverted by other proof, we are at a loss to see wherein the defendant has been prejudiced by the error complained of.

5. Defendant further contends that the court erred in excluding testimony as to other suits having been brought against other newspapers. This objection is unsound. Such evidence was wholly irrelevant and immaterial. It was not even suggested that any other suit was ever brought against any one for the libel counted upon in the action at bar. That other newspapers, which published similar libels, had been prosecuted by the...