New York Evening Journal Pub. Co. v. Simon

PER CURIAM. Only two points were presented upon this appeal, and the argument in support of neither is persuasive. 1. It is challenged as error that the trial judge allowed a witness to testify that “the captain was very much distressed about this article.” The witness was not allowed to expatiate on this subject, and other statements that he made were stricken out. The single question, then, is whether the admission of this particular piece of testimony, which no doubt expresses the conclusion of the witness, can be considered as a harmful error. Without now determining whether such an opinion is or is not competent, we are entirely satisfied that it was in no wise prejudicial to the defendant. Piad the court charged the jury that.they were warranted in finding, even without direct proof, that the plaintiff, the captain of an ocean steamer, “was very much distressed” about an article which charged him with abandoning 14 fellow seamen to a horrible death, we should not be inclined to reverse the judgment; and the simple statement of the witness added nothing to the presumption the jury was entitled to make. The •case is, very different from that relied on by defendant (Cudlip v. N. Y. Evening Journal, 174 N. Y. 158, 66 N. E. 662), where the ex parte affidavit put in evidence (against valid objection as hearsay, [225] etc.) not only averred that plaintiff was innocent of the charge of theft which the paper published, but had “really been the victim of a great outrage” and the “innocent victim of a conspiracy, while another person was the real criminal who stoic the ring” — circumstances which might not unnaturally influence the jury on the question of damages. 2. The only other exception is to the admission of evidence that the “general reputation of the plaintiff was very high as an officer and a man.” It is not necessary again to discuss this question. We considered the whole subject and the many conflicting decisions of different courts in Press Publishing Co. v. McDonald, 63 Fed. 238, 11 C. C. A. 155, 26 L. R. A. 53, and held that such general testimony, not, however, extended to minuter details, might properly be put in proof. The judgment is affirmed.