Moyle v. Franz

Per Curiam. Upon a prior appeal in this libel action this court affirmed an order denying a motion to. dismiss the complaint under rule 106 of the Rules of Civil Practice. (Moyle v. Rutherford, 261 App. Div. 968.) The action is predicated upon the publication by defendants in The Watchtoiver, a semi-monthly magazine, of two defamatory articles concerning the plaintiff. At the close of the case a motion to dismiss the second cause of action as against the individual defendants was granted upon the ground that they were not shown to have been connected with the publication of the article “ Snares.” The jury returned a verdict against all the defendants on the first cause of action for $5,000 in actual damages and $10,000 in punitive damages; and against the corporate defendants on the second cause of action for an [425] additional $5,000 in actual damages and an additional $10,000 in punitive damages. The trial court charged the jury that it was the law of the case that the statements sued upon were libelous. No exception was taken to the court’s charge in that respect and no request was made to have the trial court charge otherwise. Upon this appeal the appellants have restricted their arguments to the defenses which they urged upon the trial. They claim that the evidence proved the truth of the defamatory statements; that the statements were qualifiedly privileged and made without malice; and that the awards of actual and punitive damages were excessive. In considering the merits of the appellants’ arguments, we have been guided by their express disclaimer of any desire to obtain a new trial by reason of any errors that may have been committed by the trial court. In part the disclaimer reads: “ If defendants have not disproved these charges and established their defenses as a matter of law,, they do not desire a new trial.” We are unable to agree with either alternative of the appellants’ various contentions that each of their defenses is sustained by the “ undisputed evidence or overwhelming preponderance of evidence.” As to damages, we find that there was sufficient proof from which malice could be inferred and upon which an award of punitive damages could be based. In the dissenting opinion dismissal of the complaint is recommended upon the ground that the statements were absolutely privileged and that the jury, in effect, decided upon the propriety of the language used by a religious society in characterizing what it considered misconduct by one of its members. We do not intend to detract from the right of a duly constituted religious or ecclesiastical tribunal to deal with matters subject to. its jurisdiction, nor from its privilege to publish the results of its proceedings in an official organ. The jury in this case was instructed that a religious organization had the privilege of publishing such matters in its official magazine. The privilege is, however, not absolute but qualified. The jury was so instructed. Neither upon the trial nor before this court have the appellants contended that their publications were absolutely privileged. In their requests for special findings and in their requests to charge they specifically described their defense as one of qualified privilege. The qualified privilege of a religious society to publish matters of interest to its members may be •destroyed by showing excessive publication or other evidence [426] of malice. (Pecue v. West, 233 N. Y. 316, 321-322; 33 Am. Jur., Libel and Slander, § 188, p. 179; 17 B. C. L., Libel and Slander, § 90, p. 344; and see Murray v. Brancato, 290 N. Y. 52, 58.) Evidence was adduced from which the jury could have found that there was excessive publication. It was testified that The Watchtower was distributed to all persons willing to pay its subscription price and not merely to persons interested in the affairs of the appellants’ organization. The jury could, therefore, have inferred that The Watchtower was a magazine of general circulation rather than one restricted to persons having a mutual interest in the statements published. The jury was also entitled to infer malice from the tenor of the articles, from the fact that several defamatory statements had been published, and from the evidence that without knowledge, or with only fragmentary knowledge of the incidents to which their signed statement related, most of the individual defendants had acquiesced in defamation of the plaintiff. It is, therefore, impossible to hold as a matter of law that the defendants acted in good faith and without malice. Nor do we find these propositions established by the V undisputed evidence or overwhelming preponderance of evidence.” The jury’s verdict, however, was grossly excessive, and should be reduced to $7,500 on each cause of action. The judgment should be reversed on the facts and a new trial granted, with ’ costs to abide the event, unless within ten days from the entry of the order hereon the plaintiff stipulate to reduce the amount of the verdict on the first cause of action from $15,000 to $7,500, and the amount of the verdict on the second cause of action from $15,000 to $7,500, in which event the judgment as so reduced is affirmed, without costs. The order denying defendants’ motion for a directed verdict should be affirmed, without costs.