Tracy v. Hacket

• Decision Date: 25 January 1898
• Docket Number: 2,364
• Citation: 49 N.E. 185,19 Ind.App. 133
• Parties: TRACY v. HACKET
• Court: Indiana Appellate Court

49 N.E. 185

19 Ind.App. 133

TRACY v. HACKET

No. 2,364

Court of Appeals of Indiana

January 25, 1898

From the Allen Superior Court.

Affirmed.

William H. Shambaugh and Henry C. Hanna, for appellant.

Henry Colerick, J. E. K. France and Will E. Colerick, for appellee.

OPINION

BLACK, J.

The appellant brought his action against the appellee for libel the complaint showing a publication of libelous language imputing a crime to the appellant, in a newspaper of which the appellee was alleged to be the owner and publisher whereby the appellant "was injured in his reputation, to his damage in the sum of," etc. There was an answer of general denial, and there were a number of special paragraphs, but there was no answer seeking to justify by alleging the truth of the language published. A jury returned a verdict for the appellee. The appellant's motion for a new trial was overruled. It is claimed in argument for the appellant, that, as was assigned in the motion for a new trial, the verdict was not sustained by sufficient evidence and that it was contrary to law.

Counsel for appellant present as the question for decision under these assigned causes for a new trial, whether or not the plaintiff in such a case, when the libelous matter published contains a charge of felony, is entitled to nominal damages, when the defendant fails to justify by establishing the truth of the charge contained in the libelous publication. No special damages were alleged, and it was not necessary to a recovery to show special damages. The defamatory language was libelous per se; and for words actionable per se the law presumes general damages as natural and probable consequences. The wrong here involved in suit being one for which the wrongdoer would be liable both to a criminal prosecution and to a civil action, it is settled in this State that exemplary damages could not be assessed, and that the appellant would be entitled only to compensatory damages. Wabash, etc., Co. v. Crumrine, 123 Ind. 89, 21 N.E. 904, and cases there cited.

Under the general denial matter in mitigation was admissible in evidence, and the appellee might prove the appellant's general character to be bad, in mitigation of damages. O'Conner v. O'Conner, 27 Ind. 69; Blickenstaff v. Perrin, 27 Ind. 527; Mosier v. Stoll, 119 Ind. 244, 20 N.E. 752; Burke v. Miller, 6 Blackf. 155; Hallowell v. Guntle, 82 Ind. 554.

The amount of damages would be peculiarly within the province of the jury. See Alley v. Neely, 5 Blackf. 200; Indianapolis Sun Co. v. Horrell, 53 Ind. 527; Dean v. Miller, 66 Ind. 440; Marks v. Jacobs, 76 Ind. 216; 13 Am. and Eng. Ency. of Law, 432.

There is no claim on behalf of appellant that under the evidence, which we need not recount, he would be entitled to a reversal for failure to assess substantial damages, but it is insisted that for the invasion of his legal right by the defamatory publication which has not been justified, he was entitled to a verdict for nominal damages.

Assuming this claim to be correct, it does not necessarily follow that the appellant is entitled to a reversal of the judgment on appeal. In Crawford v. Bergen, 91 Iowa 675, 60 N.W. 205, it was held that a failure of the jury to award nominal damages in slander, where the plaintiff was only entitled to nominal damages, was not sufficient ground for reversing a judgment for the defendant.

In Funk v. Evening Post Pub. Co., 27 N.Y.S. 1089, which was an action for libel, wherein the jury found for the defendant, notwithstanding an instruction of the court that the plaintiff was entitled to at least nominal damages, the court on appeal refused to reverse the judgment. It was held that unless some permanent right is affected, or some error of court has crept in, by which the jury has rendered an erroneous verdict, the court will not set aside the verdict upon appeal because the plaintiff was entitled to nominal damages.

In Jennings v. Loring, 5 Ind. 250, the action being for false imprisonment, where there was a technical right to recover, and the plaintiff was entitled to nominal damages, but to nothing more, it was held that the failure to assess nominal damages was not good ground for a new trial. See, also, Tate v. Booe, 9 Ind. 13; Patton v. Hamilton, 12 Ind. 256; State ex rel., v. Shackleford, 15 Ind. 376; Hudspeth v. Allen, 26 Ind. 165; Black v. Coan, 48 Ind. 385; State, ex rel., v. Cloud, 94 Ind. 174; Platter v. City of Seymour, 86 Ind. 323; Hacker v. Blake, 17 Ind. 97; ...