Massuere v. Dickens

Cassoday, J. 1. This action is for damages by reason of publishing the plaintiff as a “ shunk,” with accompanying epithets. We think the article published by the defendant must be regarded as libelous per se, within the repeated decisions of this court, even when construed in connection with the card mentioned in it. It is unnecessary to restate the rule as to what constitutes such libel. 2. There was no error in excluding the conversation of the plaintiff with the witness Hensel, when he asked him to subscribe for the fund to buy the coat mentioned in the two publications. It is said to have been offered for the purpose of showing the spirit in which the plaintiff inaugurated the attack upon the defendant, which appeared in the card. The plaintiff’s publication of the card, however, cannot, as we think, be regarded as a justification of the [88] libel. It was, however, proper to be regarded in mitigation of damages, as it tended to provoke a reply. Rut what the plaintiff said to Hensel could have no such tendency, for it does not appear that, at the time of publishing the libel, the defendant knew or had any information of such conversation; and neither publication refers to it. Certainly the card cannot be regarded as libelous per se. The question here is not whether the plaintiff was moved to publish .the card by actual malice, but how far it should go in mitigation of damages. 3. The defendant was -allowed to prove the plaintiff’s “ reputation as to his business practices,” in order to meet what was said about “ business practices ” in the libel. But error is assigned because the court did not also allow the defendant to prove by the same witness what the plaintiff’s reputation was “ for meddling, making insinuations in regard to competitors in business.” But there is nothing in either publication to make it the duty of the court to allow such additional proof. Besides, the defendant was allowed to make substantially such proof by two other witnesses. 4. Error is assigned because the court said to the jury: “Now to say of a man in writing and to publish it in a newspaper that he is a skunk, if it is intended, as it ordinarily would be when such words are used, to render him ridiculous or odious in the eyes of the people who read the article, is libel.” The court here merely states that such publication as is therein mentioned when standing alone, if made with such intent, would be libelous, with the addition that it would ordinarily be so intended. Such addition is the only ground of criticism, but it was not said of the publication in question,— certainly not of it as a whole,— nor even of what was therein mentioned, if published with a different intention as the jury were at liberty to find. 5. Exception is taken because the court told the jury that “to publish in a newspaper of any one that he is guilty of [89] low business practices, meaning to have it understood that in bis business he is unfair and disreputable or dishonest, is libelous. So if you ’believe that by the publication of this article the defendant intended to represent the plaintiff as being disreputable, dishonest, and low in business transactions and in the transaction of his business, or by calling him a skunk that he meant to make him ridiculous and offensive in the eyes of the people who should read the article, then it is a libel.” "What has just been said as to the other extract from the charge, seems to be equally applicable to both of these. It is said that the language thus used by the court is, by way of intimation, a departure from the language of the article. But, like the other quotation from the charge, they were each put hypothetically, or by, way of illustration, with the qualification “ meaning to have it understood,” believing “ the defendant intended,” etc. In view of the fact that the article was libelous upon its face, and other portions of the charge submitting to the jury the question of mitigating circumstances, we do not feel authorized to conclude that the jury were liable to be misled by these portions of the charge. 6. On the subject of damages, the court, among other things, charged the jury: “ If there was an adequate and sufficient provocation for it in the publication of the article, calculating to produce a prejudice against the defendant among his neighbors, it would go to mitigate the damages; so this publication of Mr. Massuere’s is competent and proper to be considered in relation to this question whether the plaintiff is entitled to punitive damages. You want to examine that question, and see whether there is anything in that article which ought to provoke a reasonable man to call his neighbor, even if he did not like him, such names as these. Evidently the article which Massuere published was in bad taste on the face of it. It-looks like a piece of egotism, advertising his generosity in making a present to [90] the man who had done well at the fire, and I think it is difficult to see muck more of it. It does not say that Mr. Dickens was not there and that he did not give the man a present or anything of that kind. But on the face of it, it looks like a mere piece of egotism and in bad taste on the part of the plaintiff; nor was there anything about all these circumstances that appear in evidence that would justify a reasonable, careful man to publish an article in which he used opprobrious names, in calling his neighbor a skunk and disreputable in Ms business practices. If there was, that circumstance should be considered by you as going in mitigation of punitive damages, and not of real or substantial damages, which the law mentions.” Exception is taken to all of this portion of the charge except the first and last sentences. It is said the court did not instruct the jury to consider the article as a whole, but dwelt upon “ isolated words, sentences, or portions.” But a large part of the article was confessedly harmless, and was treated by the court as “ a very good reply ” to what had been published by the plaintiff. It was the “ calling names,” and the characterizing the plaintiff in the defendant’s article that the court was dealing with. Besides, the defendant made no request for the court to charge the jury to consider the article as a whole, for the presumable reason that it was at the time regarded as satisfactory. "We do not think the court here misled the jury in assuming that the defendant called the plaintiff a “ skunk ” or “ disreputable in his business practices.” It is true that at first he merely denounced the plaintiff “ as only fit to be classed with that repulsive order of creation the Mephitis Americana.” But this is immediately followed by a reference to the plaintiff’s “ ignorance ” being such as to render him “unable to comprehend the appellation applied to you’’ therefore, he said: “ I will translate for your benefit: SKUNK,— a thing as repulsive to the finer sensibilities of [91] man as your low insinuations and business practices are to your fellow-townsmen.” To say that a man is “ repulsive ” and “ low ” in his “ business practices ” is, in effect, to say he is “ disreputable ” in such practices. At all events, the departure is not such as to call for a reversal in a case where the article is libelous per se; and hence the only question is one of damages, which was fairly submitted. See note to this case in 33 N. W. Rep. 349.— Rep. 7. It is true, the court rather belittled the significance of the plaintiff’s card, in giving the opinion that.it was not tl much more ” than “ a piece of egotism ” or “ a mere piece of egotism.” This feature of the charge has generated more doubt in the minds of some of us than any other, but, after all, the question of fact upon which such opinion -was given was squarely submitted to the jury for their determination. Many courts hold that such expression of opinion on a mere question of fact, which is finally submitted to the jury for determination, is not error. Vicksburg & M. R. Co. v. Putnam, 118 U. S. 553; Porter v. Seiler, 23 Pa. St. 424, 62 Am. Dec. 341; Kirkwood v. Gordon, 7 Rich. Law, 474, 62 Am. Dec. 418; and the cases cited in these references. But here the fact upon which such opinion was given related wholly to the mitigation of the punitive damages; and it appears from the record that, under the direction of the court, one half of the verdict returned by the jury was remitted by the plaintiff. This remission seems to have been sufficiently large to remove all grievance of the defendant by reason of such expression of opinion, even if it was error. Certainly we cannot say that the damages are now excessive. By the Court.— The judgment of the circuit court is affirmed.