Eviston v. Cramer

Oole, C. J. It is to be regretted, in this case, that the special verdict does not cover more issues or facts than it does. There were really but three controverted issues or questions submitted. In answer to them the jury find that the article in question, published by the defendants, was false; that it was published with the-intent to injure the plaintiff’s feelings, and to degrade him in the estimation of the public; and the amount of damages which he had suffered by reason of its publication. Now, what inference must we make from these findings ? Can we infer anything more than that the jury found from the evidence that the matters stated in the article, of and concerning the plaintiff, were untrue; that the defendants had .shown no legal excuse or justification for publishing it; and that the plaintiff had sustained actual damages thereby to the amount given? By actual damages must be understood pecuniary compensation for injury to his feelings; injury to his reputation by being degraded or lessened in public esteem, in consequence of the [575] publication of the libel, including, of course, mental suffering, so far as the same could be estimated in money. This is the reparation which the law would require the defendants to make for their wrongful act. And we cannot presume, in view of the questions submitted, that the jury considered any other matters in estimating the plaintiff’s damages. That being the case, the verdict appears to us excessive, and out of all proportion to the actual damages proven. It is true, in this class of cases, actual malice, or a bad and wicked motive on the part of the defendant, may be shown to enhance the damages beyond mere compensation. This court and other courts have sanctioned punitory damages by way of punishment to the defendant and for a public example where the act complained of was characterized by a bad motive or a malicious intent. But what fact in the special verdict warrants such damages under that rule? The facts in the special verdict, as we have said, are that the article was false, and was published with intent to injure the plaintiff’s feelings, and to degrade him in public estimation. But this is the implied malice which the law imputes to a charge made that is false and injurious to another, and where no proper motive appears for making it. “ In all ordinary cases, if the charge complained of is injurious and no justifiable motive for it is apparent, malice is inferred from the falsity of the charge. • The law -in such case does not impute malice not existing in fact, but presumes a malicious motive for making a charge which is both false and injurious where no other motive appears.” Selken, J., in Lewis v. Chapman, 16 N. Y., 372. But ill-will, bad motive, or malevolent intent are elements of the wrong where punitory damages are allowed. And these are something more than the implied malice or the malice which the law imputes to a false and injurious charge or accusation which is not privileged. In order, therefore, to justify punitory damages in this case, the question should have been submitted whether the evi576 deuce showed that the defendants were prompted by special ill-will or bad intent towards the plaintiff in making the publication. The jury should have stated in the special verdict the facts upon which punitory damages were predicated, so that the court could determine from the verdict whether they had been properly allowed. It was not enough for the jury to find that the charge was false and was published with intent to injure, because this only means or implies the legal malice which the law infers from the falsity of the charge. It is true, there is some refinement or subtlety of reasoning in some of the cases, calculated to show that malice in law and actual malice are in their nature the same, only differing in the modes of proof by which they are established. Be this as it may, in the affairs of life and in the redress of legal wrongs a distinction is made. If A. publishes a false and defamatory article charging B. with the commission of some offense or immoral conduct, declaring that he does so for the purpose of inflicting mortification and mental suffering, to ruin B.’s credit as a business man, and destroy his good name and fame among his neighbors, is not A.’s guilt greater than it would be had he made the publication without any such "bad intent or motive, repeating, perhaps, a charge which he had heard and supposed to be true? It seems' to us so.- And while it is the law that B., ,in the latter case, should have full compensation for the actual damages he sustained by the libelous publication ( Wilson v. Noonan, 35 Wis., 321-350), in the other the bad motive or declared intent to inflict injury and destroy all that makes life desirable are deemed circumstances of aggravation to enhance the damages which B. is entitled to recover. So, under the circumstances, we are constrained to hold that there was not a proper submission of the issue whether the defendants in making the publication were prompted by ill-will or bad intent towards the plaintiff. The facts found in the special verdict do not justify punitory damages. It is evident that [577] this is a material issue, and the failure of the court to submit it, especially when a request was made that it should be submitted, was well calculated to prejudice the defendants. The cases to which we are referred by the learned counsel for the plaintiff on this point, to show that there was no error on the part of the court in refusing to submit that issue, do not apply. We will only notice one or two other points discussed by counsel for the guidance of the court on another trial. We think there was no error in the charge holding that upon the undisputed evidence it appeared the article was not a privileged communication. It clearly was not. White v. Nicholls, 3 How., 266; Hamilton v. Eno, 81 N. Y., 116; Foster v. Scripps, 39 Mich., 376. The court properly held that evidence produced on the part of the defendants which tended to show their ignorance of the publication; that there were complaints when the article was so published among the business men of the city as to the manner the plaintiff had tested and changed their weights and' scales while in office,— were matters in mitigation of punitory damages. But there was one error in the charge so vital that we deem it proper to be noticed lest it shall again be repeated. At the request of the plaintiff the court charged that if the jury found that the article was written and published maliciously by the witness Bleyer, then the defendants were responsible in damages for such malice, even though they were ignorant of the article until after it was published, and had no personal malice themselves against the plaintiff. This charge obviously made the defendants liable for the wilful and malicious act of their agent, the writer, Bleyer, though they were entirely ignorant of the article until it was published, and had themselves no personal malice against the plaintiff. The actual malice of the agent was imputed to the principals, who were held responsible for the malevolent act to the same extent as though they had themselves written and published [578] the article. Punitory damages might be given against them under this rule, however innocent they might be of any bad motive or bad intent. Such is not the law in this state, whatever may be the rule elsewhere. In Cracker v. C. & N. W. Railway Co., 36 Wis., 658-675, the learned chief justice, in considering this question, says: “ It is said in M. & M. Railroad, Co. v. Finney [10 Wis., 388], that the plaintiff in such a case is not entitled to exemplary damages against the principal, for the malicious act of the agent, without proof that the principal expressly authorized or confirmed it. Without now discussing what would or would not be competent or sufficient evidence of such authority or confirmation, we may say that we have, on very mature consideration, concluded that the rule in Railroad Co. v. Finney is the better and safer rule. We are aware that there is authority, and perhaps the greater weight of authority, for exemplary damages in such cases, without privity of the principal to the malice of the agent; and that reasons of public policy are strongly urged in support of such a rule. Goddard v. G. T. Railroad Co., 57 Me., 202; Sanford v. Eighth Ave. Railroad Co., 23 N. Y., 343; Jeffersonville Railroad Co. v. Rogers, 38 Ind., 116; and other cases. But we adhere to what is said on that point in Railroad Co. v. Finney. We think that in justice there ought to be. a difference in the rule of damages against principals for torts actually committed by agents in cases*where the principal is, and in cases where the principal is not, a party to the malice of the agent. In the former class of cases the damages go upon the malice of the principal — malice common to principal and agent. In the latter class of cases the recovery is for the act of the principal through the agent, in malice of the agent not shared by the principal; the principal being responsible for the act but not for the motive of the agent.” This rather lengthy quotation clearly states, the rule upo® [579] this question adverse to the view held by the learned circuit court. And it must be deemed the settled law of this state that the principal is not responsible in exemplary damages for the actual malice of the agent, unless he has participated, in, or ratified and confirmed, the malicious act of the agent. Of course, if the principal authorizes or directs the wrongful act, then his own bad intent will be imputable to it. It is said the answer states that Bleyer was directed by the defendants to inquire into the matter of the charges and investigation of the plaintiff’s conduct, write out the result of his examination, and publish it; therefore they ought to be held responsible to the full extent he would be. We cannot adopt that view. We cannot presume, from what is stated in the answer, that the defendants authorized or expected their reporter would write and publish a false and malicious libel upon the plaintiff. The reporter’s employment ought not to be held as authorizing him to do any such thing. Without dwelling longer upon the case, we think the judgment of the circuit court must be reversed, and a new trial awarded.