Van Poole v. Nippu Jiji Co.

• Decision Date: 17 November 1937
• Docket Number: No. 2292.,2292.
• Citation: 34 Haw. 354
• Parties: GLENN VAN POOLE v. THE NIPPU JIJI COMPANY, LIMITED, AN HAWAIIAN CORPORATION.
• Court: Hawaii Supreme Court

34 Haw. 354

GLENN VAN POOLE

v.THE NIPPU JIJI COMPANY, LIMITED, AN HAWAIIAN CORPORATION.

No. 2292.

Supreme Court of the Territory of Hawai‘i.

Submitted October 5, 1937.

Decided November 17, 1937.

EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

Where the defamatory language is libelous per se general damages are such as naturally, proximately and necessarily result from the publication complained of and include those which will compensate the person defamed for the injury to his reputation, business and feelings which the defamatory publication caused.

Where the defamatory charge complained of is actionable per se the plaintiff prima facie is entitled to substantial damages.

The general damages which the law presumes to result from the publication of defamatory matter arise by inference of law and they are not required to be proved by direct evidence. If the words are actionable per se such damages may be presumed without proof of special damages.

The general damages which the law presumes where the article complained of is libelous per se are considered as compensatory of the resulting injury.

Where the charges complained of are libelous per se the plaintiff is prima facie entitled, without any direct evidence of general damages, to recover substantial damages. And the court may rightfully direct a verdict in favor of the plaintiff and instruct the jury that the charges being libelous per se “substantial damage is presumed as a matter of law.”

An instruction “if you should not be satisfied by a preponderance of the evidence that the plaintiff sustained or suffered any actual damage or injury, your verdict should be only for a nominal sum” is erroneous for the reasons (a) that the reference to the “preponderance of the evidence” incorrectly contains the implication that it is incumbent upon the plaintiff to adduce direct evidence of the actual damage or injury and to that extent neutralizes the effect of the presumption of damage flowing from charges which are libelous per se and (b) a jury may in its discretion return a verdict for nominal damages only; it is not obliged to do so and the peremptory form of the instruction is therefore objectionable.

In a jury case where the parties are represented by counsel in the absence of request therefor it is not incumbent upon the court to instruct the jury upon the law. On the contrary under the statute it is the duty of counsel for the respective parties to the cause to furnish the court with written memoranda of their request for the charging of the jury upon the points of law involved therein.

Where from plaintiff's point of view instructions requested by him and given by the court correctly stated the measure of damages, if from the defendant's point of view there was evidence entitling it to an instruction upon nominal damages, it is incumbent upon its attorney to prepare a proper request on that subject. That the case went to the jury without any instruction upon nominal damages is something (assuming that the evidence warranted such an instruction) of which the defendant cannot complain.

W. H. Heen and M. K. Ashford for plaintiff.

Kemp & Stainback and S. Shapiro for defendant.

COKE, C. J., BANKS AND PETERS, JJ.

OPINION OF THE COURT BY PETERS, J.

This is an action for damages for libel consisting of two articles, one in the Japanese and the other in the English language, which appeared concurrently in the same edition of the Nippu Jiji, a daily newspaper published by the defendant corporation. The article in the Japanese language contained two charges against the plaintiff, one: That he had been suspected of being the father of the unborn child of a Japanese barber shop girl then in a pregnant condition; the other: That he was one of three police officers who had taken two Japanese waitresses to the Ala Moana “dump” and there outraged them against their will. The latter charge was repeated in substance in the article printed in the English language. Neither special nor punitive damages were alleged. Upon the trial the plaintiff expressly disclaimed punitive damages. The answer was a general denial. There was a verdict for plaintiff and defendant appealed.

There are only two exceptions that merit discussion. The remainder are overruled without comment. One exception raises the question whether the court erred in instructing the jury that the damages which the law presumes from the publication of an article libelous per se are substantial damages (see instruction No. 1 given at request of plaintiff quoted in margin);¹ the other, whether the defendant was entitled to an instruction that if the jury was not satisfied by a preponderance of the evidence that the plaintiff sustained or suffered any actual damage or injury the verdict should be only for a nominal sum. (See instruction No. 7 requested by defendant and refused, quoted in the margin.)²

In an action of trespass on the case for libel similarly as in other actions ex delicto the plaintiff seeks redress by way of damages for the wrong committed. Also similarly the distinction between general and special damages is observed. (Childers v. Mercury P. & P. Co., 105 Cal. 284, 38 Pac. 903, 904.) The term “damages” has been defined “to be the compensation which the law will award for an injury done.” Scott v. Donald, 165 U. S. 58, 86. General damages are such as the law implies and presumes to have occurred from the wrong complained of. The term “general damages” is sometimes synonymous with “actual damages.” (Osborn v. Leach, 135 N. C. 628, 47 S. E. 811, 66 L. R. A. 648.) It always connotes “compensatory damages.” In the law of libel where the defamatory language is libelous per se general damages are such as naturally, proximately and necessarily result from the publication complained of (Elms v. Crane, 118 Me. 261, 107 Atl. 852, 854) and include those which will compensate the person defamed for “the injury to his reputation, business, and feelings which the defamatory publication caused.” Palmer v. Mahin, 120 Fed. 737, 741. Where the defamatory charge complained of is actionable per se plaintiff prima facie is entitled to substantial damages. (37 C. J., T. Libel and Slander, § 564. See also Murray v. Galbraith, 95 Ark. 199, 128 S. W. 1047; Barnett v. McClain, 153 Ark. 325, 240 S. W. 415, 416; Taylor v. Gumpert, 90 Ark. 354, 131 S. W. 968; Bohan v. Record Pub. Co., 1 Cal. App. 429, 82 Pac. 634; Hearne v. De Young, 132 Cal. 357, 64 Pac. 576; Moore v. Maxey, 152 Ill. App. 647; Elms v. Crane, supra; Brown v. Knapp & Co., 213 Mo. 655, 112 S. W. 474, 485;First Nat. Bank v. Winters, 151 N. Y. S. 332, 335; Barringer v. Deal, 164 N. C. 246, 80 S. E. 161 [slander]; Henry Myers & Co. v. Lewis, 121 Va. 50, 92 S. E. 988, 997; Bradley v. Cramer, 66 Wis. 297, 28 N. W. 372, 375; Lorentz v. Thiesen, 140 La. 663, 73 So. 717; First Nat. Bank v. Winters, 159 N. Y. S. 923; Smith v. Lyons, 142 La. 975, 77 So. 896; Reilly v. Curtiss, 83 N. J. L. 77, 84 Atl. 199; Williams v. Hicks Printing Co., 159 Wis. 90, 150 N. W. 183; Turner v. Hearst, 137 Cal. 232, 70 Pac. 18;Knowlden v. Guardian Printing & Publishing Co., 69 N. J. 670, 55 Atl. 287.)“Special, as contradistinguished from general damage, is that which is the natural, but not the necessary, consequence of the act complained of.” Roberts v. Graham, 6 Wall. (U. S.) 578, 579.

Where a charge is libelous per se general damages are presumed. (Kahanamoku v. Advertiser, 25 Haw. 701.) The general damages which the law presumes to result from the publication of defamatory matter arise by inference of law and they are not required to be proved by direct evidence. If the words are actionable per se such damages may be presumed without proof of special damages. (Murphy v. Maui Pub. Co., 23 Haw. 804, 808; Gomez v. Haw. Gazette Co., 10 Haw. 108, 109.) The presumption that the victim of defamatory language libelous per se has suffered general damages is not a mere fiction to be lightly disregarded. It is the common experience of mankind that injury and resulting damage is the natural, proximate and necessary result of libels which hold a subject “up to scorn and ridicule and to feelings of contempt or execration, impair him in the enjoyment of society and injure those imperfect rights of friendly intercourse and mutual benevolence which man has with respect to man.” Kahanamoku v. Advertiser, supra, p. 713. Hence it is that the general damages which the law presumes where the article complained of is libelous per se are considered as compensatory of the resulting injury. ( Palmer v. Mahin, supra; Childers v. Mercury P. & P. Co., supra.)

In the case of Hanson v. Krehbiel, 68 Kan. 670, 75 Pac. 1041, 1042, the court said: “General damages are those which the law presumes must naturally, proximately, and necessarily result from the publication of the libelous matter. They arise by inference of law, and are not required to be proved by evidence. They are allowable whenever the immediate tendency of the words is to impair the plaintiff's reputation, although no actual pecuniary loss had in fact resulted; and are designed to compensate for that large and substantial class of injuries arising from injured feelings, mental suffering and anguish, and personal and public humiliation, consequent upon the malicious publication of the false and libelous matter. The injury for which this class of damages is allowed is something more than merely speculative. While not susceptible of being accurately measured in dollars and cents, it is a real one, and more often than otherwise more substantial and real than those designated as actual, and measured accurately by the dollar standard.”

The charges complained of in the instant case were clearly libelous per se. ( Kahanamoku v. Advertiser, supra; Rice v. Star-Bulletin, 26 Haw. 196;Baldwin v. Tribune-Herald, 30 Haw. 610, 616; Baldwin v. Tribune-Herald, 32 Haw. 87.) They were presumably false. ( Kahanamoku v....