Gressman v. . Morning Journal Assn.

Gray, J. The only question, which we need consider upon this appeal, is the right of the defendants to have the trial court instruct the jurors “ that in reduction of compensatory damages, the jury may consider each and every statement in the article, which is proved to be true.” The exception to his refusal to so charge presents the question. In so refusing to instruct, and in adding the remark that “ as I have already advised the jury, compensatory damages can never be reduced, if the defendant’s liability be fixed”, the trial judge relied upon what he had said in his main charge. He had told the jurors that “when the liability of the defendant is established, the injured person, the victim of the libel, the plaintiff, is entitled to what the law calls compensatory damages, being such damages as would be full and complete compensation for the actual wrong done to him, or her. In this case that means the injury to her reputation.” He, then, *479 told them that, in addition to giving actual compensation for the injury, they might give punitive damages, if satisfied that the publication was malicious, or recklessly and wantonly done. They were told to go over the article, some part of which was true, and, after determining the disputes on the evidence, then, if finding the defendants liable, “ to,determine the damages that the plaintiff has suffered and, in addition, say whether it is a proper case to award punitive damages, or not.” While, by these instructions, the trial judge intended to have the jurors understand that they were to determine the questions of the defendants’ liability and of the amount of damages to be awarded upon a consideration of all the evidence before them, the ruling upon the request might, not unreasonably, be deemed to have left their minds in some doubt whether they could take into consideration the fact that portions of the article were proved to be true and, in consequence, reduce the amount of compensation, which, otherwise, they would be disposed to award. Had there been but one libelous statement in the publication, to which the request would be applicable, I think that the defendants would have been entitled to have that request granted. The jurors might have believed that, if they came to a determination that the defendants were liable to the plaintiff for publishing a libelous article, the amount of the damages to be awarded for the injury must not be influenced by any consideration of the fact that some of the statements were true. The effect of our Code provision, as I understand it, is to allow the influence of such consideration. Section 536 permits a defendant to plead and to prove facts “not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff’s damages.” The defendants having set up justification and having proved some of the facts pleaded and, therefore, the truth of some relevant portions of the article, the jurors were at liberty to take them into consideration, in reduction of the damages, which a wholly false and reckless publication would have justified. In Wachter v. Quenzer, (29 N. Y. 547), the opinion states the doctrine to be this : “ The defendant may set up a justification, or *480 lie may allege facts short of a fall justification, but giving some color to the charge, by way of modification, or he may do both; and in either case lie may prove the facts as they are, though they fall short of a justification; and the jury may take them into consideration for the purpose of mitigating the damages.” (p. 551.) In cases of libel, the law presumes that the plaintiff has been damaged by the publication and the jurors are to reach the amount of the damages from the nature of the libel, the extent of its circulation, the social position of the parties and the tendency to injure the plaintiff, in .the public estimation of his character. If some of the things said of the plaintiff wrere shown to be true, their truth, if establishing misconduct, should be allowed to affect the amount of the damages, which, otherwise, the jurors would be minded to award. Damages given as a compensation should be precisely commensurate with the injury; but there is, necessarily, involved in this rule the idea, as the amount of damages is peculiarly within the province of the jury, that the jurors may consider how far the truth of portions of the libelous article may tend to show that the plaintiff ought not to have that amount of compensation, which he, or she, might justly claim, if his, or her, reputation had been unaffected by the facts proved. If the facts proved established that this plaintiff’s conduct had lent some color of verity to the statements complained of as injurious, and the element of actual malice was wanting, she should not be entitled to receive the same damages for the injury as if her reputation was shown to have been wholly beyond unfavorable criticism, or comment. The principle, upon which compensatory, or actual, damages may be reduced, may be stated in the language used in Robison v. Rupert, (23 Penn. St. 523), a case which is referred to in Kiff v. Youmans, (86 N. Y. at p. 330), though not one of libel. It was there held that “ where there is a reasonable excuse for the defendant, arising from the provocation or fault of the plaintiff, but not sufficient entirely to justify the act done, there can be no exemplary damages, and the cir *481 cuinstances of mitigation must be applied to the actual damages.” In this case, while the proof falls short of establishing the charge of insanity, or the charge that the plaintiff fell in love with the patient, to her undoing, evidence was given with respect to her actions, which, if the jury believed it, would justify the conclusion that she had been indifferent to her reputation and had conducted herself in such ways as to provoke public comment. There was proof of facts that showed that her mind had been affected by her troubles and, also, of facts tending to prove some part of the statement about her conduct with Lacy. While they did not justify the publication of the article, they might bear upon the amount of the compensatory damages. But the difficulty with the defendants’ request is that it was too broad in its scope; inasmuch as it would permit the jurors, in considering the liability of the defendants for each defamatory statement, to take into consideration all of the proof, regardless of its relevancy to the particular statement under consideration. They were correctly instructed that the article contained two distinct and independent libels and the plaintiff was entitled to damages by way of compensation for either statement, if false; for each was defamatory and, therefore, presumably, injurious to the plaintiff’s reputation; which is to say, her character in public opinion. Proof by the defendants tending to show that the plaintiff had fallen in love with a patient in the hospital, and that her “ love was her undoing ”, would have constituted no justification for publishing the statement that she was insane. The facts proved by the defendants with respect to the one libelous statement in the article did not tend in justification of the other and whatever facts might properly be considered by the jurors, in mitigation, or reduction, of the damages for making the one false statement, should not, necessarily, govern their discretion in estimating the damages sustained from the other libel. I am not aware of any rule of law to that effect and I think the reason of the thing is opposed to the notion that some truth in the published state- *482 merits concerning the plaintiff’s conduct with Lacy should be regarded as a palliation of the injury done her in stating that she was insane. For these reasons, I advise the affirmance of the judgment. Cullen, Ch. J., Haight, Werner, Hiscook and Chase, JJ., concur ; Willard Bartlett, J., absent. Judgment affirmed, with costs.