Hunt v. Bennett , 4 E.D. Smith 647 ( 1855 )

By the Court.

Daly, J.

After hearing the questions which I passed upon, on a motion for a new trial at the special term, re-argued, my opinion remains unchanged. I still think that the case of Root v. King, 4 Wend. 113, is decisive upon the point whether or not the publication was privileged, and that we would not be justified in granting a new trial on the ground of excessive damages.

All that was said in respect to vindictive damages was, that where the circumstances of the case warranted it, a jury had the right to increase the amount of damages as a punishment to the slanderer; that it was not usual to give vindictive damages, or smart money, except in cases where, in addition to the legal presumption of malice which the law inferred from the want of truth in the defamatory matter, it appeared that the publication had been dictated by a purely malevolent motive. This was merely saying, that in a proper case, the jury had the right to give vindictive or peremptory damages, and this we have frequently held. (See Taylor v. Church, 1 E. D. Smith, 279, and cases there cited.) But the jury were also told that this was not a proper case to give such damages; that the plaintiff was absent in Europe at the time of the publication, and that there was nothing to show that the publication was dictated by a malevolent motive on his part; that there was nothing in the case that called for vindictive damages. This was instructing the jury not to give vindictive damages, and was certainly going as far as the defendant could have asked.

The complaint averred that the defendant was the proprietor of the paper, and that the libellous matter was published in his paper. This was' a sufficient averment of a publication by him. (The King v. Gutch, 1 Mood. & Mal. 433; The King v. Alman, 5 Burr, 2,689; 2 Starkie on Slander, 30.)

The publication was admitted by the answer, which set up the matters as a justification. The answer contained a general averment, upon information and belief, that if the words and figures in the complaint set forth were of and concerning the plaintiff, they were true. Regarding this averment as equivalent to an averment of the truth of the publication, the defendant undertook thereby to justify it by proving its truth. He also, in addition to the general justification, set out facts and circumstances alleged in the publication, (but not every fact or circumstance therein stated, as, for instance, the fact that Hunt accepted the office of police justice without fee ¡ to reform the morals of the sixth ward,) and then alleged that Hunt did the act in the answer set forth, and in the words and figures in the complaint alleged. Giving this, also, the effect of a general justification, the defendant took upon himself the burden of showing that the publication was true, unless the- plaintiff, by his reply, admitted its truth. It is urged that the reply did not take issue upon the truth of the allegations in the answer. The reply is somewhat loosely drawn, a circumstance that may well be attributed to the confused and formless character of the answer; but, taking the two together, the reply traverses with sufficient certainty the justification set up by the answer. It denies that the circumstances therein set up were all the facts and circumstances mentioned in the complaint, and this was true; but the reply controverts these allegations, as well as each allegation in the answer, other than those which had been previously replied to or avoided. This was specific enough. The issue to be triéd was the truth of the publication, the duty of proving which rested upon the defendant, and his motion for judgment upon the pleadings was properly denied.

The evidence given by the defendant fell short of the proof of a justification, but he was entitled to rely upon it in mitigation of damages. The plaintiff also gave evidence on his part. He examined the witness, Hasbrouck, and his account of the transaction respecting the woman, Mary Ferris, conflicted with that of the defendant’s witness, Martin, as to the extent or severity of the alleged assault upon her by Hunt, as well as to the cause or provocation for it. The plaintiff’s witness, Martin, and the defendant’s witness, Hasbrouck, both testified that the complaint upon which Hunt was arrested for the alleged assault upon the woman, was made by Martin. Hasbrouek testified that Martin preferred the complaint, and that the woman did not; and upon his cross examination by the defendant, reiterated this statement. Upon the close of the witness’ cross examination, the defendant offered in evidence the original complaint in the form of an affidavit, appearing to have been made by Mary Ferris, which, being objected to, was excluded by the judge, and the defendant excepted.

Though the plaintiff had shown by his own witness, Martin, that he (Martin) made the complaint, the defendant was not precluded thereby from showing, if it was material, that the fact was otherwise. (1 Greenleaf Ev. §443.) The ground upon which the complaint was excluded does not appear from the case, nor have I any recollection of the circumstances attending the offer, and the rejection of it as incompetent testimony. From the case, it appears to have been offered as the original complaint; and it must now be assumed that it was conceded on the trial to be the original complaint, or that the defendant, in connection with his offer, was prepared to show that it was; and the question we are now called upon to determine is, whether the defendant was entitled to give the affidavit in evidence ?

It is insisted that he was entitled to do so, upon the grounds, first, as tending to impeach the accuracy of the witness, Hasbrouck’s, recollection of the transaction, his account of it, materially qualifying or conflicting with the account given by the defendant’s witness, Martin; and secondly, that he was entitled to show that a complaint was preferred by Mary Ferris, as one of the facts connected with the transaction, and material and important as general evidence in mitigation, to show that some foundation at least existed for the publication in question. The allegation in the publication was, that Hunt had arrested a poor drunken woman, and, for some expression of hers, beat her with a whalebone cane. The defendant had shown, by the witness, Martin, that Hunt, having Mary Ferris in custody, beat her, while she was in a state of intoxication, with a whalebone cane, because she did not walk fast enough, and that the woman screamed, &c. This was proving what was alleged in the publication, except that the beating was for some expression of hers—a fact not very material, or which might be inferred as having taken place from Martin’s statement, that she was beaten because she would not walk faster. The fact that a complaint was made against Hunt would not be evidence of the truth of this part of the publication, though it might be admissible as a circumstance in mitigation; and if admissible as in some degree extenuating the publication, by divesting it of the character of a willful attempt to injure the plaintiff, without color of excuse or palliation, it could not be material whether it was made by the woman herself, or by a spectator of what had occurred. In other words, it may have furnished some excuse for the publication to show that a complaint was preferred against Hunt for assaulting the woman; but I am at a loss to perceive what additional weight would or could have been added to that excuse by proving that the complaint was in fact made by the woman herself, and not by Martin. If the conduct of Hunt induced a bystander to interfere, and lodge a criminal complaint against him for his acts, that was a stronger circumstance against Hunt than that the complaint was made by the injured party. It is said, that if the woman did not make a complaint, that was a circumstance to show that she had not been abused ; and if she did make one, that it was a circumstance to show that she had been. Such might be the effect if the plaintiff had given evidence to show that no complaint had been made, which he did not, as his testimony showed that a complaint was actually made.

As the plaintiff’s witness, as well as the defendant’s, swore that the complaint was preferred or lodged, to use the language of the two witnesses, by Martin, proof of the fact that it was made by Mary Ferris would operate equally to impeach the general accuracy of both witnesses ; and as they were the only two witnesses who testified as to the treatment of the woman, I am at a loss to perceive how the introduction of this testimony could have benefited the defendant. If, after proving the fact to be otherwise than as stated by Martin and Hasbrouck, he had urged to the jury that Hasbrouck’s recollection of what had taken place was not to be relied on, the plaintiff was entitled to urge that Martin stood precisely in the same position. The effect of the proof of this circumstance left both witnesses, as to their general accuracy, exactly balanced. Giving it its full effect, it did not show, or have any tendency to show, which of the two was the most accurate ; and unless we can see that testimony, which was excluded, might have had an influence upon the jury in determining a question of fact upon testimony which was conflicting, we are not to grant a new trial. It is probable that Martin may have complained orally on.behalf of the woman to the justice, though the affidavit, which is the formal complaint upon which process issues, was drawn up in the name of, and sworn to by her, and that what they understood and meant to convey by the lodging or preferring of a complaint, was a representation made by Martin to the justice. But we have no right to assume that such was the fact, and I put my denial of the plaintiff’s right to a new trial, for the exclusion of the testimony, therefore, solely upon the ground already stated—that it could have no effect upon the jury in determining which of the two statements, that of Martin or of Hasbrouck, was the most accurate or the most worthy of belief. That they were not entitled to draw any inference from it, favorable to the one and unfavorable to the other, but that it left both witnesses, as to the general accuracy of their recollection, upon an exact equality; and such being the effect of it, the defendant lost nothing by its exclusion.

The jury were told that if the necessary effect of the publication was to diminish the plaintiff’s respectability and abridge his comforts, by exposing him to disgrace and ridicule ; if its tendency was to impair his condition or alter his position in society- for the worse, it was libellous, and that ■¿here could be little doubt but that the publication in question was libellous; that the whole scope añd tendency of it. was libellous. This was expressing an opinion as to whether or not the publication in question was libellous; but, as it was coupled with a definition sufficient to enable the jury to know what in law constituted a libel, it was submitting it to them to pass upon, accompanied with an opinion of the judge that it was libellous, which they might follow or not, as they thought proper. The jury found that it was, and them finding cannot be disturbed.

Order denying a new trial affirmed.