Opinion
October Term, 1897.
Judgment and order reversed and a new trial ordered, with costs to abide the event.
Upon the trial the defendant expressly waived all effort to justify the publication of the article mentioned in the complaint. The plaintiff contends that the jury "had the right to pass upon the good faith of the defendant in interposing its plea of justification." To establish the defendant's good faith in making the answer setting up a justification, the defendant called as a witness, White, who testified that he visited Rio Janeiro and made certain investigations in respect to matters mentioned in the article, and in the course of his testimony he stated that on one occasion "we were shown the books containing the expenditures of the company at the time of the organization of the company, at the time Mr. Palmer was there." He said he reported what he found to the company in Pennsylvania — the facts. He was then asked this question: "What, if anything, was shown by those books as to the expenditure of the company for the Welsbach light and this gas governor." This question was objected to as irrelevant and immaterial, and "that it can only be shown by the production of the books themselves." The court overruled the objection and the plaintiff excepted. Plaintiff made a motion to strike out the evidence of White on the ground that it is "irrelevant, immaterial and incompetent for any purpose," The court stated, the "motion is granted so far as the motion is made generally, but I will receive the evidence simply upon the ground of the good faith of the defendant in regard to the plea of justification in this case." Plaintiff excepted. Thus it is apparent the court allowed the evidence of the witness as to what the books showed. We think this was error, and that the plaintiff's exception thereto was well taken. We cannot say the illegal evidence did not harm the plaintiff; though he recovered a verdict for ten dollars, he may have been prejudiced by the improper evidence. The trial judge in the course of his rulings made, and in his charge to the jury, allowed the evidence to be considered upon the question of good faith of the defendant in setting up a justification of the publication. The case is barren of evidence to show express malice in the defendant in publishing the article, yet we cannot say that the rulings made to which we have alluded worked no harm to the plaintiff. Therefore a new trial must be ordered.