Opinion
Argued May 13, 1898
Decided June 7, 1898
William Irwin and A.L. Pincoffs for appellant.
Walter S. Logan for respondent.
The decision of this case turns upon the question of the admissibility of evidence of the previous publication of articles by the New York morning papers, which mentioned the plaintiff as the guilty party, and who, in the publication by the defendant which related to the same subject, was described as "the London head of a New York firm of cloth jobbers." Was this evidence admissible to show that the plaintiff was the person referred to in the defendant's article, and that it would be so understood by persons reading it? The defendant's publication was in the evening of the day on which the articles in the papers mentioned were published, and that it referred to the same subject is obvious. The managing editor of the defendant testified that he read the article in the defendant's paper before it was published. He also testified that he referred in that article to whatever cables, or articles purporting to be cables, appeared in the morning papers admitted in evidence. His testimony also shows that he had read the papers containing this account, he knew to whom they referred, and, with that knowledge, published the article in question. Thus, this testimony disclosed the actual circumstances under which the libel was published. It showed that the person who was instrumental in its publication knew and intended that it should refer to the plaintiff, and that there had been a publication of the transaction by other papers which was such that any person having read them would at once know to whom the article published by the defendant applied. It seems to be well settled that where a libel does not name the plaintiff he may give evidence of all the surrounding circumstances and other extraneous facts which will explain and point out the person to whom the allusion applies. (Odgers on Libel and Slander, p. 467; Newell on Defamation, p. 767.) That rule is established by the adjudicated cases and text writers as well. Hence, the important question is whether evidence of the publications by the morning papers of articles relating to the same subject was a circumstance which was admissible to show that the publication by the defendant was intended to apply to the plaintiff, and would be so understood by a reading public. That those articles would produce that effect, and produce the same injury as if the plaintiff had been named by the defendant with those who had read the previous publication is manifest. The evidence of the defendant's managing editor shows that the basis of the defendant's publication was the articles which were introduced in evidence. To determine the effect of the defendant's article and to whom it applied, it would seem proper to show the condition of the public mind, the information the public possessed upon the subject of the article, and the consequent inference which it would readily draw from reading it. As bearing upon that subject, the plaintiff was permitted to show that at least three public newspapers, which had a large and general circulation in the same city, had previously and on the morning of the same day published an account of the supposed transaction in which they mentioned the plaintiff as the person who was guilty of the act alleged. After the details of this transaction had been made public and the name of the plaintiff given, the defendant, with a knowledge of those publications and that the plaintiff had been identified as the guilty person with a view of communicating the same information to its readers, published its article. Under these circumstances, it seems to me that proof of the condition of the public mind and the means of information the public had was admissible as attendant circumstances which indicated that the defendant's article referred to the plaintiff.
I am unable to satisfy myself that the plaintiff had not the right to show all the circumstances existing at the time, including the state of the public mind, the knowledge it must have acquired from previous publications, and any other extraneous matter which would tend to point out the person to whom the defendant's article was intended to apply. Can it be where two newspapers are published in the same locality, one irresponsible and the other responsible, and the former has published an article severely reflecting upon a party it named, that the other may follow by a publication of the same transaction, omitting the name, and the party injured will, in an action against the latter, be prohibited from introducing the publication by the former as a circumstance showing the state of the public mind, and how the second publication would be understood by persons reading it? I think not. I cannot believe that a newspaper can publish a libel which its editor knew at the time related to a particular individual, and would be so understood by the public by reason of a former publication, and then properly have the publication excluded, although it would show that the community would recognize the plaintiff as the person alluded to in its article. In other words, it seems to me that a defendant cannot publish a libel of another and shield himself by not disclosing the name of the person to whom it was intended to refer, when he knows and understands that by reason of former publications the public mind is in a condition where it would necessarily understand the article as applying to him alone.
I am also disposed to think that these articles were admissible upon still another ground. It will be seen by reference to the record that they were first proved by the defendant's counsel, who, while cross-examining the plaintiff, elicited from him the fact that articles relating to the same subject were previously published in the Press, the Recorder and the Commercial, and were circulated upon the morning of the seventh of November. The defendant attempted to use those publications for the purpose of convincing the jury that all the injury the plaintiff's reputation had suffered was caused by the publication of the articles contained in those papers. After making that proof, could the defendant properly object to the admission of the articles themselves? Were they not admissible to enable the jury to determine how far that claim of the defendant was sustained? I am disposed to think that the defendant's attorney, by his cross-examination, opened the door for the introduction of the articles to which he referred, and, hence, that his objection to them as immaterial was properly overruled.
These views lead to an affirmance of the judgment below.
The important question in this case is whether the alleged libel referred to the plaintiff. The article published by the defendant is libelous per se, and if the plaintiff succeeded in proving that it was written of and concerning himself, he was entitled to recover.
I am of opinion that the jury were permitted to consider incompetent evidence in reaching their verdict, which must have been highly prejudicial to the defendant.
The article in question charges that "the London head of a large New York firm of cloth jobbers is reported as the leader of the movement to get together and send to America nearly half a million of British gold with which to push the course of the anti-tariff democracy and its candidate for the Presidency," etc.
The article speaks of this and other information as having "just been cabled over."
In order to establish that the plaintiff was referred to in this publication, it was proved that he was the head of a large New York firm of cloth jobbers, and there was some evidence tending to show that he was the London head of a branch house of his firm in the latter city; also that there were no other firms of New York cloth jobbers who had London branches with London heads.
The inference sought to be drawn from this line of proof was, that the friends and business acquaintances of plaintiff would at once, upon reading the article, recognize the fact that he was charged with raising a corruption fund in England to buy votes in a presidential election about to be held in the United States.
The plaintiff sought to make this slight identification complete by offering in evidence articles published in other papers.
The "Mail and Express," published by defendant, in the city of New York, is an evening paper, and it is charged that the libel was published in it on Monday, November 7th, 1892, the day before election.
On the morning of that day three New York papers published articles on the same general subject involved in the alleged libel purporting to have been received by cable that day from London, in which the plaintiff was referred to by name as at the head of the movement in London to raise a fund to influence the approaching election.
The learned counsel for the plaintiff states that he offered these articles for the purpose of establishing the plaintiff's identity, and to show that the cable dispatches in the morning papers related to the publication in the defendant's paper the next evening, and that the latter was read by citizens in the light of the morning statements, and that the jury could read them in the same way. There was no attempt on the part of the plaintiff to prove that any friend or business acquaintance of the plaintiff had read the morning and evening publications, and thereby spelled out a libel charging plaintiff with a crime, as such evidence would have clearly been incompetent.
In the case of Bourke v. Warren (2 Car. Payne, 307) it was held in the Court of King's Bench, "that, if in a libel, asterisks be put instead of the name of the party libeled, to make it actionable, it is sufficient that the party should be so designated that those who know the plaintiff may understand that he is the person meant; and it is not necessary that all the world should understand it. But if witnesses who state that they understand that the plaintiff is the person, also say that they were enabled so to understand by the persual of another libel, with which the defendant had no concern, their evidence ought to be laid out of the case."
This rule is founded in reason, as it would be most unjust that a defendant in a libel suit should be confronted by independent libels he had not published, and subjected to the peril of submitting them to the jury.
These articles were also received notwithstanding a further objection interposed by the defendant, to the effect that they contained interviews in London with ex-Congressman Ochiltree and Captain Thompson, the London representative of the Equitable Assurance Society. There were thus introduced statements commenting on plaintiff's alleged conduct, calculated to prejudice the jury and intensify the supposed libel published by the defendant.
These statements or interviews contained direct attacks and charges upon plaintiff by name, and must have confused and influenced the jury when considering the article involved in this action.
We have admitted in evidence not only three distinct libels published in newspapers over which defendant had no control, but the libelous statements of two individuals, never printed by the defendant, in which the plaintiff is attacked personally.
This evidence was purely hearsay, and the charge of the trial judge, in substance, that these articles must not be considered by the jury in determining the question whether plaintiff was referred to in the article published by defendant did not cure the error.
The evidence remained in the record, and it needs no argument to show that its effect upon the jury was very damaging to defendant. The trial judge did not charge the jury that they were to disregard this evidence absolutely and treat it as withdrawn, but limited it to the point whether the plaintiff was referred to in the alleged libel.
The learned General Term referred on this point to Holmes v. Moffat ( 120 N.Y. 159), a case decided by the Second Division of this court. The facts there presented were quite different from those in the case at bar.
Judge PARKER pointed out that the court in the charge referring to the improper evidence, said: "I withdraw it from your consideration, as I do not believe it to be proper or material evidence. * * * I do not think my attention was directed to it with that degree of care that it should have been; and, therefore, it got in." This was a complete withdrawal of the improper evidence from the jury, and the case when in this court was properly decided.
It is assumed that the jury will follow the instructions of the court, and it is the well-settled general rule that the proper remedy is to ask the court to instruct the jury to disregard the evidence. ( Marks v. King, 64 N.Y. 628; Platner v. Platner, 78 N.Y. 90.) It is also competent for the court, in its discretion, to strike out the evidence of its own motion. ( Gall v. Gall, 114 N.Y. 109.) In the trial of a cause it frequently happens that improper evidence is admitted for the reason that at the moment the attention of the court or counsel is not called to its character. It would be a strict and unreasonable rule if the error could not be cured by motion to strike out, or for instructions that the jury disregard it.
The case at bar presents no such situation.
With the newspaper articles and London interviews stricken out, it is a question of considerable doubt whether, upon the remaining evidence, the jury would find that the alleged libel referred to plaintiff.
It is impossible to say that the verdict was not affected by the incompetent evidence, even if it were not wholly based upon it.
The case of Erben v. Lorillard ( 19 N.Y. 299) is very much in point.
Judge DENIO, after pointing out that an improper measure of damages had been established based upon evidence of the value of a lease, said: "Where the jury were finally told to disregard what had been proved respecting the lease, they had scarcely any evidence before them upon which to assess damages against the defendant; and it is not surprising that they were unable to dismiss from their minds the consideration that the plaintiff had been wrongfully deprived of a valuable lease, or to avoid making up to him at least a part of his loss."
Judge GROVER said in the same case: "It would be vain to observe the rules prescribed by law to secure an impartial jury, if their minds are to be subjected to the influence of illegal evidence after they are impaneled. It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence."
There are other points urged on behalf of the appellant, but I do not deem it necessary to consider them. I cannot agree that the articles published in the morning papers were first proved by defendant in cross-examination of plaintiff. In my opinion this cross-examination bears no such construction. The articles were first offered and read in evidence by plaintiff, and his counsel makes no claim to the contrary.
The judgment and order should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., GRAY and O'BRIEN, JJ., concur with MARTIN, J., for affirmance; HAIGHT and VANN, JJ., concur with BARTLETT, J., for reversal.
Judgment affirmed.