BMITH 11. BUN
CO.
399
SUN
PUB. CO.
(Of.rcu{t Court, S. D.New York. March 8, 1892.) 1. Where a libelous article is ambiguous, a witness may not state as to whom, in his 'opinion, it refers, but after simply replying in the affirmative to the question, "Did you know to whom it a,ppliedl" he may subsequently give the facta and circumstances which show who was pointed to by the publication. Van Vechten v. Hopk.{ns, 5 Johns. 211,' distinguished. Where, in an action for libel, evidence ofrered by the plaintiff has been excluded on t.he motion of defendant's counsel. on the strength of their statement that they made no attack upon the character or standing of the plaintifr, they are estopped from introducing testimony to show that she had been, or proposed to be, a singer upon the stage. SAME-ExCESSIVE DAMAGES. ARTICLE-OPINION EVIDENCE. ,
B.
8.
In an action for libel, the amount of d!lmages is almost entirely within the discretion of the jury, and the court 'will not set aside the verdict as excessive, unless it is satillfied that it is the result of gross error, prejudice, perverseness, or co... .ruption. Gibson v. O£nc£rmatl. Enquirer, 2 ]j'lip. 121, followed.
At Action by Smith against the.Sun Publishing Company for libel. Verdict for plaintiff. Defendant moves for a new trial. Denied. Hamman&; Fessenden, for plaintiff. Franklin Bartlett, for defendant. SHIPMAN, District Judge. This is a motion by the defendant for a new trial of an action at law for libel, wherein the jury rendered a verdictfor the plaintiff to recover $7,500. The motion is principally based upon exceptions to the admission of evidence and upon the amount of damages, which are alleged to be excessive. The plaintiff is a married woman, and neither her full 'name nor the full na.me of her husband was stated in the libel, butdrcumstances were given from which the person who was intended to. be designated could easily be identified. As a part of the testimony in regard to identity, the plaintiff's counsel asked one witness, "Did you know to whom the article related, when you read it? Answer. Yes. Question, State the reasons why you knew." Each of these questions were objected to and admitted. Another witness was asked, "Did you know to whom it [the article] alluded? An.. swer. I did. Question. State hoW you knew." The first question only was objected to. The decisions in the state of New York are that when a libel is ambiguous, a witness cannot be permitted to testify that from reading the libel he applied it to, or understood it to mean, the plaintiff. These decisions are based upon Van Vechten v. Hopkins, 5 Johns. 211, which is commented lipon and enforced by Chancellor WALWOR'TI'r in Mayna1'dv; Beardsley, 7 Wend. 561. They relate to the bare question, "To whom did the witness apply the article or publication?" and not to questions which call out the circumstances, the facts,and the reasons which would enable the jury to draw their own conclusions. His true that the dedsions are not uniform, but the reason for the exclusion of the question,which merely compels the witness to say that he applied
Law.
FEDERAl.
vol. 50.
the libel to the plaintiff, is a sound one, because the admission of such a question and an answer ·substitutes the opinion or conclusion of the for a statement "of the facts, from which the jury should make their own finding. As it was said by Chancellor WALWORTH, in 7 Wend. 5'60: "The witness must etate the facts on which the opinion might.,he founded, and leave it to the court and jury to draw the conclusions."Butthe exclusion 0(' such a general question does not exclude 11 statement of the facts arid circumstances in detail, from which the jury can see the meaning or intention of the publication and of the facts whiphcaused the witness to know to whom the article applied. The .admissibility of such questions is recognized in the Maynard Case, $upra,aild by the text 'writers. qdg. Sland. & L. 94, note, and 540, are also collected. Indeed, Mr. Greenleaf goes furwhere the ther., ',' " "It[the'rneaning of the defendant] may be proved by the testimony of any persoll ,conversant with the parties and circumstances; and, from the nature of the case, they must be'permitted to some extent to state their opinions. oonclul:lion8. and belief, leaving thegrouuds of it to be inquired into upon iiross.-exar,nination." 2 Ey.'§417. The in this to whose testimony'exception was taken were not asked to whom, in their. opinion, or within their knowledge, the article applied. They were asked if they knew to whom the article applied, to which they replied, "Yes," and were then asked to give the rea,sqn why they, kneW;iJl' \lthel;, words, to state the facts and circumstance$which showed who was pO,inted at by the publication. The teg,. timony WallJ;lOt rule which excludes the opinions or conclusions of a witne:ss. ,But"if this particular testimony had been inadmissible, that fact would create no ground for a new trial. The testimony that. the plaintiff wastt\eperson named in the libelous matter witS The made no substantial attempt to deny it. As was said in the charg!,!, "th,e only, question in real and actual isthe questionof The improper admission of a singleite:r:poftestimony upon the,qWlstion of identity would have been an UQimportantII,latter upon a motion, for a new trial. The second subject ofexception was the refusal of the court to permit. the defendant to show that after. the plaintiff left school, and before her between five years and nine years before the date marriage, BOrne. of the libel, she studied singing in, New York, for the purpose of becoma upon the stage, and it was also said that the defendant proposed to ,prove that she bad sung ,upon the stage. This evidence was. exqluded, becal,1$e in a previous Plirt of the trial evidence offered by the had been excluded upqQ the defendant's motion, upon the that he."made no attack upon strength of the statement of its the chluacter, social standing, or position of the lady." The only object of the offered evidence was ,to mitigate damages by attempting to diminish her position or, standing or character, as the result, in some way, of the circu'mstance that she had been, or proposed to be, a singer stage. In my defendant was est\lpped from that.
-SMITH!'. SUN PUB. CO.
401
line of testimony. The principal point in the case is in respect to the which are said to be excessive, and so large that the existence of prejudice or malice in the jury is clearly shown. The libel charged a married woman, in a sensational and somewhat jeering manner, with having eloped with a man, her previous intimacy with whom, it was further said, had been freely spoken of in the city of her residence. It was aprononnced statement of her disgrace as a married woman, and was d,isplayed in the columns of the paper in a manner intended to attract attet;l#on, and to give publicity to the story. It was known and commented upon by a large number of people in the city where she lived, and. was calculated to cause great injury to her reputation. No Elvidence was presented that it caused actual change in her social relatiopsor social s,tatus. The o:(Bcers of the defendant company had no personal hostility or spite against the plaintiff, and no damages were asked J9T 01) that account. Punitive damages were asked for on the ground that the article was published wantonly or recklessly; that is, without adequate inquiry as to its truth, and with reckless Jack of knowledge whether it was true or false. It was said by the defendant that it received the article in the usual course of business, from a news agency upon which it was in the nitbit of relying for accuracy, which it paid by the week, and not by the quantity, and that it published the article alrelying upon the source from which it came; and for these _though it did not take other precautions before publication to verify the accuracy of the story, it claimed to be freed from the charge of wantonness or recklessness. The jury were instructed that these were circumstal)ces'YhiGh were fairly to be taken in mitigation of the act of the defendant, and, if the)T thought that these facts were sufficient to excuse the defendant from the duty of investigation, of inquiry, of delay for the sake ofaccuracy , then they should not give punitive damages; but if they thought that the defendant was guilty of reprehensible negligenceinthe publication of the article, without further attempts to verify its truth, they were justified in giving such a reasonable sum in damages as should be an example to deter against similar future negligence. The jury evidently found that it was a case for punitive damages. In actions for libel the amount of damages is very peculiarly a matter for the jury. It is almost entirely within their discretion, because there can be no .fixed or mathematical rule upon the subject. Much depends upon the circllIllstances of mitigation or aggravation, the notoriety which was given in the newspaper to the defamatory charge, the care or lack of care, th!l malice or the recklessness which characterized the publication, allQ. the necessity of giving to the public any information in regard to the of the charge; so that it is established that courts will not interfere With verdicts in libel suits upon the ground of excessive damages" unless they are satisfied that the verdicts were the result of gross error,prejudice, perverseness, or corruption. Gibson v. Cincinnati EnquirIJ'J:, ,2 Flip. 121; Townsh. Bland. & L. § 293. "A new trial will only be granted when the verdict is so large as to satisfy the court that it was perversely in excess, or the result of some gross error on a matter v.50F.no.5-26
FEDIDtALnEtoit.'rER, vot. '50.
of pttnciple;
I it ;must be sho*n: 'thltt 'the jury either roiacOrlceived case, or acted' under' the influence of undue motives." & 11.291. ·. :':The claim of the defendapf'is,thatthe sum is so th'at the jury lnust have been infiuenbed. by prejudice, or bave been improperly inflamed againstthe defendant .Tpe jury evidently thought that so much of the mitigation as rested upon 'the fact that the article. Was published as received from a news agency in mEl usual course of business did not tend to mitigate the damages. The.amountof punishment which they chose to inflict does not indicate to' me that they' acted from prejudice against or hostility to the defendant, but that they thought that the general principle orsystem showed that its evening paper was conducted wasil. wrong' and perilous sy'stem; and that any defendant who, in the course of his business upon that system, and as the result ofit;ptiblished an artiCle which would 1lattih1.11ycause great to aplaihtiff, exposed himself to heal')' The Iriotion is denied. "
Appeal of
EATTLE
& Co. 1899.l '."'.
(CfrcuU Court, E.D. MiSSOUri, E. D. CUSTOMS
Under the tariff of October 1, 1890, chloral hydrate at 25jer cent. ad valorem. under Schedule A, par. 76, as a "chemical compound' '.* * not specially provldEld for," and not at./iQ CElnts per pound, unq.er 74, as a "medicinal preparation, * . .of which alcohol iea component part. or in the preparation of which alcohol is·used. " . ,., .
A pplica.tion by Battle & Co., .chemists, a corporation, for a review of the board of general appraisers'decision with respect to the classification of certain 'imports. Dickson &: Smith, forpellitioners. Geo. D. Reynolda, U. S. Atty. THAYER, District Judge, (orally.) This isa cage thatarises under the customs law. .The question in the case is whether chloral hydrate is dutiable at 50 cents per pound, under paragraph 74 of Schedule A of the tariff act ofOetbbel' 1, 1890, as "a medicinal pl"epliration * * * of which alcohoHs a component parh or in' thepreparation:Ofwhich alcohol is used," or whether it is dutiable at the rate of :25 per cent. ad valorem, under paragraph 76 of the same schedule; as "'a f6hemical com· ,pound * * * not specially provided for." . Tbe' eofirt is compelled to adopt the latter view, for the reasollS: :Chlortil hydrate is not mentioned bv name in' the' tariff act, and in that sense it is not "specially provided for." .Furthermore; all the experts agree that it is "a chemical compound. a It answers, therefore, au of the requirements