Stacy v. Portland Publishing Co.

Peters, J.

A witness for the plaintiff testified thus: “ He (the author of the publication complained of) in a cool manner, which excited my laughter, remarked that he thought a very proper thing was to shoot him ” (plaintiff). The plaintiff finds fault with the court in allowing the witness to be asked on cross examination whether he really apprehended the speaker was going to shoot Mr. Stacy. This did not transcend the discretionary power of the presiding judge. The statement of the witness naturally enough called for the question. At the same time, it was unimportant and immaterial. It is evident enough that no one apprehended such a thing. The expression was rhetorically extravagant, merely. Besides, a witness could be asked whether words were spoken angrily or not, or earnestly or not, which would have been tantamount to the question put. Haynes v. Haynes, 29 Maine, 247.

Upon re-examination, the witness was not permitted to state what he did understand Mr. Smith to mean by the threats of ferfifing and shooting the plaintiff. The plaintiff contends that this inquiry was rendered permissible by the admission of the previous question and answer. ~We think otherwise. The plaintiff could have shown the condition of feeling that the speaker was in, and any extrinsic facts and circumstances, in order to elucidate what was meant. Anything more was needless, as the words speak for themselves. Snell v. Snow, 13 Met. 278. Where the speaker’s meaning is conveyed, not in direct terms, but by incomplete expressions, or by signs or gestures or tones of voice, it might be competent in some cases for witnesses to testify what they understood by them. It was so held in Leonard v. Allen, 11 Cush. 241. This rule, however, was construed quite strictly in White v. Sayward, 33 Maine, 322.

A witness was allowed to slate that at a certain time — ihe fact being material — the plaintiff was intoxicated. This was objected to as being the expression of the opinion of a witness. Such testimony was directly decided to have been admissible in People v. Eastwood, 14 N. Y. 562. In a certain sense, a vast deal of testimony is but statements of opinion. But it is not opinion in an objectionable sense. It is every day practice for witnesses to swear to such facts as the quantity, weight, size, and dimension of a thing, to heat and cold, age, sickness and health, and many other matters of the kind. In such eases, witnesses do not express an opinion founded on hearsay or the judgment of other men. It is not an opinion based upon facts recited and sworn to by other witnesses. It is their own judgment, based upon facts within their own observation. It is, so far as such a thing can bo, knowledge of their own. It is an opinion which combines many facts without specifying them. It has been described as “ an abbreviation of facts,” a “ short-hand rendering of facts.” It is an inference equivalent to a specification of the facts. Whar. Ev. § 510. The witness in effect describes the facts when he gives his opinion. It is his way of stating them. Such testimony is admitted from necessity. A witness can seldom give in detail all the points and particles which go to make up his belief, but he can characterize them. Practically, the rule admitting such quasi opinion is convenient and safe. Trials would be almost endlessly protracted without it. Of course it must be applied with discrimination. Vide Whar. Ev., section cited supra, and following sections; and notes. State v. Pike, 49 N. H. 399, 408. Hardy v. Merrill, 56 N. H. 227. Commonwealth v. Sturtivant, 117 Mass. 122. Dunham’s probate appeal, 27 Conn. 192, 193. Robinson v. Adams, 62 Maine, 369, 410, 411.

The plaintiff contends that it was error for the judge to rule that the defendants could justify as to a part of the libel without justifying all of it. This was too obviously correct to require more than a word of comment. It might with as much force be asserted that a plaintiff cannot prevail unfess he proves all he alleges, as that a defendant cannot defend against a part of the charges against him. A justification in part does not, of course, exculpate a defendant, but would have a tendency to reduce the damages.

The libel declared that the writer had been informed that the plaintiff some time before “ was arrested for drunkenness and disturbance.” The plaintiff’s counsel contends that this was an assertion that the plaintiff was in fact drunk, making a disturbance, and was arrested for it. The ruling was, that the language did not amount to saying that the plaintiff was in fact drunk, but that it meant that he was arrested upon a charge of drunkenness. This to our minds was exactly the true interpretation of the words used. The writer does not say that the plaintiff was drunk, but he declares that somebody else says so. He does not make the charge, but he informs the public that some one has made such a charge; or, more accurately, he states that a gentleman informed him that such a charge was made. The item does not assert the charge to be true. It asserts that an accusation of drunkenness was made against the plaintiff. To say that a man was arrested for an assault is not a declaration that he committed an assault. To say that a man was arrested for murder and indicted for murder and tried for murder, would not be saying nor be equivalent to saying that he was in- fact guilty of such a charge. If it were so, the newspaper press would be sorely perplexed for publishing the current news. Stress is put by the plaintiff upon the additional words of the article: “ A ten dollar note quieted the affair.” This, at most, was a statement that the charge subsided or the arrest was abandoned for the sum named. We think the article is not susceptible of the meaning ascribed to it by the plaintiff. The case of Haynes v. Leland, 29 Maine, 233, recognizes a distinction between the positive assertion of a fact and a statement of information as to such fact, in an action of slander.

The plaintiff’s counsel earnestly insists that it was error on the part of the court to omit (after request) to direct the jury that punitive damages might be recovered in such a case as this. Taking the case as it resulted, we are satisfied that the plaintiff has sustained no injury in this respect. Without overruling former decisions, this court cannot deny that punitive damages may be recovered against a corporation for the malicious conduct of its servants and agents, by a person injured by it. To the facts and findings, however, presented in the case at bar, our judgment is that the doctrine contended for has no reasonable application. The charge against the plaintiff was of a serious nature, calculated to wound his sensibilities and to degrade him in his personal character. A substantial, but not a full and complete, justification of the charge was pleaded by the defendants. The plaintiff was allowed to recover damages for the injury “ to his character as a man, a citizen ; for mental pain and suffering, anguish, mortification, and for loss of the benefits of public confidence and social intercourse,” resulting from the publication. The jury were permitted to add, as actual damages, for any aggravation of these elements of injury occasioned by the express malice of the person who published the article complained of. The jury assessed nominal damages only, the verdict being for one dollar. The legal signification of the verdict is, either that there was no actual and express malice entertained towards the plaintiff by the defendants’ agent, or that, if there was, it did the plaintiff no injury. There is no room for punitive damages here. There,is no foundation for them to attach to or rest upon. It is said, in vindication of the theory of punitive damages, that the interests of the individual injured and of society are blended. Here the interests of society have virtually nothing to blend with. If the individual has but a nominal interest, society can have none. Such damages are to be awarded against a defendant for punishment. But, if all the individual injury is merely technical and theoretical, what is the punishment to be inflicted for ? If a plaintiff, upon all such elements of injury as were open to him, is entitled to recover but nominal damages, shall he be the recipient of penalties awarded on account of an injury or a supposed injury to others beside himself? If there was enough in the defense, to mitigate the damages to the individual, so did it mitigate the damages to the public as well. Punitive damages are the last to be assessed, in the elements of injury to be considered by a jury, and should be the first to be rejected by facts in mitigation. We think the irresistible inference is, that, if the instruction had been given as it was requested, the verdict would not have been increased thereby to the extent of a cent. There may be cases, no doubt, where the actual damages would be but small and the punitive damages large. But this ease is not of such a kind. It would have been proper in this case for the presiding justice to have informed the jury, that, if the actual damages were nominal and no more, they need not award punitive damages. Any error in the ruling was cured by the verdict. Gilmore v. Mathews, 67 Maine, 517.

Some other points appear to have been raised at the trial, which are not discussed in the very full and able brief of the plaintiff’s counsel, and we may very well regal'd them as now waived. A motion is made against the verdict as too small. The court rarely interferes with a verdict in a case of this kind, whether moved against as too large or too small. We do not allow the motion.

Motion and exceptions overruled.

Appleton, 0. J., Walton, Barrows, Yirgun and Libbey, concurred.