Mason v. Paul

Mr. Justice Waterman. At the instance of the plaintiff the court, upon the last trial, gave to the jury the following instruCtion: “ If the jury believe, from the evidence, that the defendant published the circular alleged in the declaration, and that, at the time of the publication, the matter contained therein or any part thereof was'not, in point of fact, true, then the jury must find the defendant guilty and assess the damages not exceeding the amount alleged in the declaration, which is $25,000.” The statement in the circular, “ Judge Anthony says,” it was undisputed, was untrue; by mistake the name of Judge Anthony instead of Judge Bailey being used. This error was not claimed upon the trial to have been material, or of any consequence. Yet as such error made the publication literally untrue, the jury, by the above instruction, were told to find the defendant guilty and assess the damages,, not exceeding $25,000. Mo special damages were alleged or proven. By this instruction the court assumed, under the undisputed facts, to charge that the publication was libelous, actionable, and that the jury should assess the damages, not exceeding $25,000. At the stage of the case in which the case then was, no special damages being alleged, there were no damages which could properly be called the damages. The is a definite article. Legal damages may be implied and punitive may be imposed, but the amount of each is indefinite; and where none have been proven, until some have been found, there are no defined damages. The instruction may have been taken by the jury as an assumption that there was in the case evidence showing that the plaintiff had suffered damages other than those implied from a libelous publication. The court also, at the instance of the plaintiff, gave the following instruction: “The jury are further instructed that if they believe from the evidence that in the progress of a suit between the plaintiff and the ¿Etna Life Insurance Company, the Appellate Court of Illinois said of the plaintiff in substance that “ as the evidence now stands, the plaintiff has made representations which he knew to be false,” and that afterward the final result of the suit was a vindication of the plaintiff from said charge, and that defendant knowing such final result, afterward published the words so spoken by the Appellate Court alone, and failed to publish the final result of said suit, then such publication on the part of defendant Avas in law a libel.” From the statement of facts and the opinion in the case of Paul v. The Ætna Life Ins. Co., to be found in 10 Ill. App. 431, which Avas introduced in evidence in the trial of the present case, it -appears that upon the first trial of that cause, the company defended upon the ground that the insurance canceled was procured by Paul upon false representations by him made. This court in its opinion said, in substance, that it was abundantly shown that the representations made by Paul in procuring the insurance were false; and also— “ It thus appears that the policy Avas avoided in consequence of the plaintiff’s own fraud.” It is now insisted that Paul, having upon a re-trial, obtained a judgment in that case, it was by such judgment established that Paul had not made false representations in procuring the policy of insurance. We can not assent to this. There is nothing in the record now presented to us, which shows upon what issues the case of Paul v. The Ætna Ins. Co. was finally tried. Our statute permits amendments of pleadings to be made at any time before or after verdict, and we can not assume that the case was ultimately disposed of upon the issues which were discussed in the 10 Ill. App. There was nó evidence from which the jury could find that the “ final result was a vindication of the plaintiff from said charge.” The question of whether the defendant is not, because of the fifth special finding, entitled to judgment in his favor upon the fourth and fifth pleas, not having been discussed, we express no opinion thereon. The judgment of the Superior Court is reversed and the cause remanded. Reversed and remanded.