Van Ingen v. Mail & Express Publishing Co.

Martin, J. The decision of this case turns upon the question of the admissibility of evidence of the previous publication of articles by the Plew York morning papers, which mentioned the plaintiff as the guilty party, and who, in the publication by the defendant which related to the same subject, was described as “ the London head of a Plew York firm of cloth jobbers.” Was this evidence admissible to show that the plaintiff was the person referred to in the defendant’s article, and that it would be so understood by persons reading it? The defendant’s publication was in the evening of the day on which the articles in the papers mentioned were published, *386 and that it referred to the same subject is obvious. The managing editor of the defendant testified that he read the article in the defendant’s paper before it was published. He also testified that he referred in that article to whatever cables, or articles purporting to be cables, appeared in the • morning papers admitted in evidence. His testimony also shows that he had read the papers containing this account, lie knew to whom they referred, and, with that knowledge, published the article in question. Thus, this testimony disclosed the actual circumstances under which the libel was published. It showed that the person who was instrumental in its publication knew and intended that it should refer to the plaintiff, and that there had been a publication of the transaction by other papers which was such that any person having read them would at once know to whom the article published by the defendant applied. It seems to be well settled that where a libel does not name the plaintiff he may- give evidence of all the surrounding circumstances and other extraneous facts which will explain and point out the person to whom the allusion applies. (Odgers on Libel and Slander, p. 467; He well on Defamation, p. 767.) That rule is established by the adjudicated cases and text writers as well. Hence, the important question is whether evidence of the publications by the morning papers of articles relating to the same subject was a circumstance which was admissible to show that the publication by the defendant was intended to apply to the plaintiff, and would be so understood by a reading public. That those articles would produce that effect, and produce the same injury as if the plaintiff had been named by the defendant with those who had read the previous publication is manifest. The evidence of the defendant’s managing editor shows that the basis of the defendant’s publication ivas the articles which were introduced in evidence. To determine the effect of the defendant’s article and to whom it applied, it would seem proper to show the condition of the public mind, the information the public possessed upon the subject of the article, and the consequent inference which it would readily draw from reading it. As *387 bearing upon that subject, the plaintiff was permitted to show that at least three public newspapers, which had a large and general circulation in the same city, had previously and on the morning of the same day published an account of the supposed transaction in which they mentioned the plaintiff as the person who was guilty of the act alleged. After the details of this transaction had been made public and the name of the plaintiff given, the defendant, with a knowledge of those publications and that the plaintiff had been identified as the guilty person with a view of communicating the same information to its readers, published its article. Under these circumstances, it seems to me that proof of the condition of the public mind and the means of information the public had was admissible as attendant circumstances which indicated that the defendant’s article referred to the plaintiff. I am unable to satisfy myself that the plaintiff had not the right to show all the circumstances existing at the time, including the state of the public mind, the knowledge it must have acquired from previous publications, and any other extraneous matter which would tend to point out the person to whom the defendant’s article was intended to apply. Can it be where two newspapers are published in the same locality, one irresponsible and the other responsible, and the former has published an article severely reflecting upon a party it named, that the other may follow by a publication of the same transaction, omitting the name, and the party injured will, in an action against the latter, be prohibited from introducing the publication by the former as a circumstance showing the state of the public mind, and how the second publication would be understood by persons reading it ? I think not. I cannot believe that a newpaper can publish a libel which its editor knew at the time related to a particular individual, and would be- so understood by the public by reason of a former publication, and then properly have the publication excluded, although it would show that -the community would recognize the plaintiff as the person alluded to in its article. In other words, it seems to me that a defendant cannot publish a libel of another *388 and shield himself by not disclosing the name of the person to whom it was intended to refer, when he knows and understands that by reason of former publications the public mind is in a condition where it would necessarily understand the article as applying to him alone. I am also disposed to think that these articles were admissible upon still another ground. It will be seen by reference to the record that they were first proved by the defendant’s counsel, who, while cross-examining the plaintiff, elicited from him the fact that articles relating to the same subject were previously published in the Press, the Recorder and the Commercial, and-were circulated upon the morning of the seventh of November. The defendant attempted to use those publications for the purpose of convincing the jury that all the injury the plaintiff’s reputation had suffered was caused by the publication of the articles contained in those papers. After making that proof, could the defendant properly object to the admission of the articles themselves ? Were they not admissible to enable the jury to determine how far that claim of the defendant was sustained ? I am disposed to think that the defendant’s attorney, by his cross-examination, opened' the door for the introduction of the articles to which he referred, and, hence, that his objection to them as immaterial was properly overruled. These views lead to an affirmance of the judgment below.