Bergmann v. Jones, 94 N.Y. 51 (N.Y. 1883)

Miller, J.

Upon the trial of this action objections were made, by the defendant’s counsel, to certain questions which were' put inquiring as to the losses sustained by the plaintiff in his business by reason of the publication made by the defendant and set forth in the complaint. The plaintiff was asked, whether, immediately after the publication of the article alleged to be libelous, his business fell off, which question was objected to, the objection overruled, and exception taken by the defendant. The plaintiff answered that it did. He then testified as to the amount of his sales per diem up to the time of the publication of the article in question, and he was then asked the amount of his sales immediately after said publication. The question was objected to, the objection overruled and an exception taken by defendant. The plaintiff then answered, stating what his sales were on week days and what on Sundays. The question was then asked him as to the amount of sales on Sundays immediately before the publication, which question was also objected to, the objection overruled, and exception taken, and the witness answered. The article was libelous on its face, and assailed the character of the plaintiff individually and as the proprietor of a grocery store. In the complaint the plaintiff claimed damages to his reputation, by reason of the alleged libel, to the amount of $20,000. He also alleged that by reason of the publication he had been greatly injured in his business as a merchant by the loss of good-will and patronage, and had suffered pecuniary loss thereby, to-wit: to the amount of $5,000.

The testimony objected to was offered evidently for the purpose of showing losses sustained under the last allegation, and it tended to show such losses. There can be no serious question but that a party injured has a right to recover special damages where a claim for the same is properly made in the complaint. The objections of the defendant’s counsel to the questions put were general in their character, and stated no specific ground upon which the testimony should be excluded. The counsel for the appellant claims that the proof of special damages was not admissible under the pleadings because it was not properly pleaded. Had this point been taken on the trial, and the objection held to be valid, the judge had the power to allow an amendment of the pleadings upon such terms as would be proper and just, and had he done so the objection might have been obviated. The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent. (People v. Beach, 87 N. Y. 508.) The defendant having failed to specify any such ground upon the trial he is not in a position to urge the same upon this appeal.

Numerous decisions are cited by the defendant’s counsel to sustain the position that the evidence objected to was inadmissible. From an examination of the cases referred to it appears that none of them are analogous to the one at bar. In Shipman v. Burrows (1 Hall, 442) the alleged slanderous words were not actionable per se, and were spoken of the defendant as a shipmaster, the plaintiff alleging that by reason of the same the insurance companies of the city of New York refused to insure any vessel commanded by the plaintiff or any goods laden on board the vessel by him commanded. It was held that evidence that the New York insurance companies refused to make such insurance was improperly received. The decision of the court was based upon the ground that the averments in the declaration were not sufficiently definite to allow

such evidence to be given on the part of the plaintiff. This rule might well apply in the case cited, where it appeared that there was no difficulty in showing the company or companies which had refused to insure the vessel. It may also be remarked that as no point was made to the contrary it must be assumed that the specific objection was taken upon the trial that the complaint was insufficient, and hence the point now made did not arise. ISTor should it be overlooked that at the time of the decision in the case cited the right to grant an amendment to the pleadings upon the trial did not exist and was not recognized as is the case under the present system of pleadings and practice, and hence the plaintiff lost no rights if the objection urged was not distinctly taken upon the trial. In Hallock v. Miller (2 Barb. 630) special damages were claimed, giving the names of persons specifically, and proof was offered as to other persons not named in the declaration, which was excluded. It is evident that the distinct point was taken that the complaint was insufficient to admit the evidence and hence the case is not in point. In Tobias v. Harland (4 Wend. 537) the case arose upon a demurrer, and the question was distinctly raised whether special damages were sufficiently alleged in the declaration. In Linden v. Graham (1 Duer, 670) the action was brought for slander of title, and the complaint alleged that the speaking of the slanderous words prevented the plaintiff from procuring a loan upon a mortgage upon real estate, but did not state the name of any person who would have made a loan. On demurrer the court held that the complaint did not sufficiently allege the special damages. It will be seen that the distinct point was presented as to the sufficiency of the allegations contained .in the complaint. In none of the other cases cited is it held that an objection to proof of special damages by the loss of. customers, on the ground that they are not named in the complaint, is available where this ground is not specifically stated, and hence the distinct point now raised was not presented. Cases may arise where, from the nature of the business in which the party is engaged, it would be almost impossible to prove by witnesses,

who had dealt with the party bringing the suit, the loss of trade. The plaintiff’s business in this case was evidently a very small one, in which it would be very difficult to prove damages of any specific ¡amount, arising out of the loss of the trade of a single customer and under such circumstances, after proof of the circulation of the libel and evidence tending to show the injury to plaintiff’s business, testimony establishing a falling off of his business might be competent, not as distinct proof of loss, but as bearing upon the question of whether the plaintiff had sustained any damage. It is true such evidence would not be very strong, but from the necessity of the case we think, it might be competent to submit to the jury for what it was worth in a case of the character of the one at bar, without, alleging in the complaint specifically the names of the persons whose custom had been lost by means of the alleged libelous publication.

,It is also insisted that the judge erred in charging the jury that they could give the plaintiff damages for loss of business, and in refusing to charge at defendant’s request that “ the jury cannot award damages to the plaintiff for loss of business, no special damage having been proven.” We think there was no error in the portions of the charge referred to, or in the refusals to charge as requested. The complaint alleged an injury to the plaintiff’s business by reason of the publication of the alleged libel, and there was proof establishing the fact that the business had diminished since that time. The testimony in this respect tended to show a loss to plaintiff by reason of the alleged libelous publication, although there was no direct proof as to the amount of profits the plaintiff had realized on his sales, or the amount of the losses he had sustained. It cannot be said, we think, that there was no evidence, whatever, to show damages to the plaintiff’s business, and, under the circumstances, it was a fair question for the jury to consider the proof as to losses in business, in determining what amount, if any, should be awarded in favor of the plaintiff for his damages. The charge as made covered this. question, and fairly submitted it to the consideration of the jury. None of

the authorities cited by the appellant’s counsel in this connection are in conflict with the views we have expressed, and there is no ground for claiming that the plaintiff failed to give some evidence which established losses to his business which followed as a necessary consequence to the publication of the alleged libel. The sensible diminution of his sales after the publication was some proof to establish his claim for special damages, and unless the jury was satisfied from the evidence that it might be attributable to other and different causes it could not be overlooked by them in determining the amount. There was certainly evidence "which tended to show that the injury to plaintiff’s business was attributable to the alleged libelous publication, that it was the cause of the loss of business to him.

The evidence which showed that other papers had published the alleged libel, and that similar reports had been circulated in regard to the plaintiff was to be considered by the jury, and it is fair to assume that the defendant was not made liable in damages for other publications, or for the acts and conduct of other parties. The failure of the plaintiff to show the actual amount of the profits was a defect in his proof which might properly be urged before the jury, and it is not to be assumed that a verdict was rendered in this respect for a larger amount of damages than the evidence justifiéd.

It is also insisted that the court committed an error in charging the jury that it was in their discretion to give the plaintiff exemplary damages. The particular part of the charge m this respect to which exception is taken is to the decision of the court in favor of several requests made by the counsel for the plaintiff. The first request lays down the rule that in an action of libel the plaintiff gives evidence of malice, whenever he proves the falseness of the libel, that it is then a question for the jury to say whether it is of such a character as to call for punitive or exemplary damages, and that the question is not taken from them, because the defendant gives evidence which tends to show that there was in fact no actual malice. It must be home in mind that the article in question was libelous per se.

The judge had so charged just prior to the recpiest, and the portion of charge under consideration must be taken as applicable to the case before the court and jury. The second request asked the court to charge that the falseness of the libel being proof of malice sufficient to uphold exemplary damages, the right to recover them rests in the act done, in the publication of the false libel, and that the publisher is chargeable with the legal consequences, which it is the right of the jury to redress by imposing reasonable damages beyond any actual injury shown, and the court responded that he had charged this in substance in the direct language of the law. The third request was as follows: “ That in an action for libel the falseness of the libel is ah evidence of malice, and it is a question for the jury whether the malice is of such a character as to call for exemplary or punitive damages; that is, such an amount of damages as may be reasonable beyond any damages or injury actually shown.” The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintiff’s right to recover them is in the discretion of the jury. When the falseness of the libel is proved, as a general rule, it is sufficient to warrant the jury in giving exemplary damages. This principle is upheld in Samuels v. Evening Mail Association (75 N. Y. 604), where the decision of the General Term, reported in 9 Hun, 288, is reversed upon the dissenting opinion of Davts, P. J. The above requests to charge are in the language of a portion of that opinion, and neither of them go beyond that. The plaintiff having proved the libel, which the deféndant in his answer admitted he published, and its circulation, and it appearing that it was false and untrue, the plaintiff’s cause of action was established, and it only remained for the jury to determine, in view of all the facts presented upon the trial, what damages should be awarded. Upon the charge made against the plaintiff in the article published, the falsity of which was made to appear, it was for the jury to say in their discretion whether punitive or exemplary damages should be awarded. The proof on the part of the defendant that there was no actual malice was to be considered in the deter

mination of the question whether exemplary damages should be given. We have examined the authorities cited by the defendant to sustain his position, and we think that none of them are in conflict with the rule laid down in that portion of the charge which has been discussed. Some other questions are made as to the rulings of the court in reference to the admission of evidence. The question put to the plaintiff as follows: “ State what efforts you made to regain your business, and what opposition or hindrance you met with on account of this libelous article,” was properly admitted. The plaintiff having proved that the amount of his receipts had largely diminished since the publication of the alleged libel, he had the right to show that he had endeavored to counteract its effect, and in doing this he met with opposition which was attributable to the publication of the libelous article in question.

We think that the motion to dismiss the complaint was properly denied. It was made upon the .grounds that the article did not bear the construction placed upon it by the innuendo in the complaint, that is, that the defendant intended to charge the plaintiff with murder, etc., and second that there is no proof that the defendant intended to so charge the plaintiff. The article reflected severely upon the character and conduct of the plaintiff, and the complaint, after setting forth the libel, contained the allegation that he thereby meant to accuse the plaintiff of the crime of murder, or being accessory thereto, and meant and intended to have it understood that the plaintiff had been guilty of the crime of murder, and had murdered and concealed a man in his cellar, or that he was the accessory of such crime. These allegations sufficiently state that the alleged libelous matter charged the plaintiff with murder, and it is difficult to see upon what ground it can be claimed that, upon a motion to dismiss the complaint, they were not sufficient. It is no answer to say that they were ambiguous and uncertain, for even if such was the case any question as to their meaning might be submitted, upon proper requests, to the consideration of the jury. This not being done we think that the defendant is not in a position to claim that there was

error in denying the motion to dismiss the complaint upon the first ground stated. Neither can it be said, as the case stands, that there was no proof that the defendant did intend to charge the plaintiff as alleged in the complaint.

In the cases cited by the appellant’s counsel to sustain the point last urged, the distinct question was raised and left to the jury as to the meaning of the alleged libelous publication. (See Sanderson v. Caldwell, 45 N. Y. 398; 6 Am. Rep. 105, and Maguire v. Knox, 5 Irish R. Com. L. 408.) In the case at bar the judge left it to the jury to determine whether the charge of murder was imputable to the defendant, and in this respect the charge was favorable to him. The subsequent portion of the charge, that any thing which held the plaintiff up to scorn or ridicule, any thing that degrades or disgraces him in the eyes of men is libelous, and that the article was libelous per se, was not inconsistent with the portion last referred to, and it cannot be said on that ground that the judge took away from the jury the right to consider the article and to determine whether that charged the plaintiff with murder. It might well be that the jury found that murder was not charged and still that the article in question was libelous per se in other respects.

We have examined all the other questions raised and in none of them do we find any ground for reversing the judgment.

The judgment should be affirmed.

All concur.

Judgment affirmed.