FOURTH DEPARTMENT, MAY TERM, 1898.

[Vol. 29.

Incandescent Light Company for $510,000, or for any sum other than the sum reported and accounted for by him to said Welsbach Company, to wit, the sum of $80,000; or that he was a fugitive from justice, or that he had embezzled any proceeds of said sale or any moneys belonging to his employers, or to any one else, or had improperly expended such proceeds or moneys in buying farms for relatives or otherwise, were, and are, utterly false, malicious and defamatory; and plaintiff avers that he was never guilty of any of the infamous and disgraceful acts that are stated or insinuated in said article."

The complaint alleges that the printing and publishing of the article has injured his good name and reputation to his damage in the sum of $25,000. There is no averment in the complaint of special damages.

The answer of the defendants admits that they are the owners, proprietors and publishers of the newspaper stated in the complaint, and that on the 2d day of October, 1892, there was published in one edition only of the said Illustrated Buffalo Express the article set forth in the complaint. By way of mitigation of damages the answer alleges that the defendants were subscribers to and patrons of the United Press, which was an association organized and existing and engaged in the collection and transmission to its patrons and to newspapers generally throughout the United States of the general news of the whole world.

The answer also avers: "That on or about the said 24 day of October, 1892, the said United Press did transmit and deliver to the editors of the defendants' paper the article or dispatch set forth in said complaint; that said dispatch was furnished and received by said editors in the regular course of business in common with other telegraphic news; that said editors, believing in and rely ing upon the truth of the statements contained in said dispatch, and without any malice on their part, or on the part of any one connected with said paper, did in good faith publish the same in common with very many other newspapers throughout the country; that said article was published in good faith, without any malice on the part of these defendants or on the part of any of their editors or employees towards the plaintiff, but in the belief of the truth of the same; that prior to the publication of the said article com

App. Div.]

FOURTH DEPARTMENT, MAY TERM, 1898.

plained of by the said plaintiff, the same article, or articles containing the substance thereof, had been and were published by many other newspapers throughout the United States and in the community and parts of the country where said plaintiff was known." The answer contains no other matter by way of defense or in mitigation.

Plaintiff was sworn as a witness in his own behalf and produced and read in evidence a letter which had been written to the defendants, bearing date in November, 1892, which, when read in evidence, was marked Exhibit A. He testified that he wrote another letter to the defendants, bearing date November 30, 1893, which was read in evidence and marked Exhibit C. He also testified that he wrote to the defendants another letter, bearing date November 4, 1894, which was read in evidence and marked Exhibit D. He further testified that on April 19, 1894, he addressed to the defendants another letter, which was read in evidence and marked Exhibit E, and he testified that he received no answer to that letter from the defendants, and that the defendants had never made any retraction of the charge to the knowledge of the plaintiff.

During the course of the cross-examination of the plaintiff he was shown another letter written by him to the defendants which was dated Washington, Iowa, 7-17-94. Among other things contained in that letter were the following words: "The financial loss to me from the publication as a whole was most serious. However, I do not expect any one paper to bear it all, but only its due proportion. Just and reasonable reparation, coupled with broad and unequivocal retraction, is the only basis of settlement upon which I can meet any paper. Neither one nor the other has been, can be, or will be accepted alone." The cross-examination continued at great length. After considerable discussion between the counsel of the respective parties and the court, the following appears in the record: "Plaintiff's Counsel: We contend here that the fact that somebody else may have, although the fact does not appear here, published this same libel or a similar one is not competent evidence. Question read by the stenographer as follows: Had you read it elsewhere before?' Now, within the rule, it is no part of the cross-examination; it is not admissible unless it is shown that they had notice or knowledge of any previous publication. I think that is not pleaded. Defendants' Counsel: Yes. Plaintiff's Counsel:

"

FOURTH DEPARTMENT, MAY TERM, 1898.

[Vol. 29. Well, it may be. I object to it certainly as not part of the crossexamination, and it should be followed, if it can be, by proof; then the witness may be examined, perhaps, about it if the evidence is admitted. But here and now, without further discussing the main question of its admissibility, I submit it is not competent and not admissible. The Court: Well, Mr. Wheeler, you may pass it for the present."

The cross-examination continued, and the following occurred: "Q. And you wrote in your letter to Mr. Matthews, did you not, 'The financial loss to me from the publication, as a whole, was most serious. However, I do not expect any one paper to bear it all, but only its due proportion.' You said that to Mr. Matthews, did you not? A. The letter speaks for itself. Q. Then you did recognize the fact, did you not, that this particular article in question had been published by a large number of other papers? Plaintiff's Counsel: That I object to. The Court: He may answer. Plaintiff's Counsel: Please note the exceptions on the grounds as before that it is not admissible in mitigation, or for any other purpose. The Court: I think that it is a proper cross-examination as to this letter. A. The letter says so. Q. Well, what is the fact? A. The letter states the fact. Q. The letter states the truth; that it had been published. I ask you if you did not know the fact that it had been published by a large number of other papers throughout the country? A. I did. Plaintiff's Counsel: That I object to the same as before. The Court: Yes, you may have the exception. Q. How many had published it? A. I do not know. Q. How many had you brought suit against, at least? Plaintiff's Counsel: That I object to, as before. The Court: He may answer. Plaintiff's Counsel: Your Honor said it was proper cross-examination of this letter. That letter was introduced by the defendant. The Court: This witness is the party himself, and the matter of the order of proof is not of note. Plaintiff's Counsel: You will note an exception. Q. How many had you brought suit against for its publication? A. I could not say, but I think I may give you an idea in this way. Q. Give us the best statement you can make? * * * Q. In that action did you testify that you had brought suit against 152, or thereabouts? Plaintiff's Counsel: I object as not competent as to the bringing of suits, and same as before.

App. Div.]

FOURTH DEPARTMENT, MAY TERM, 1898.

[Received and exception taken.] A. I did not. Q. Is it not a fact, Mr. Palmer, that you have brought suits against about 150? A. It is not. I do not personally know Mr. Matthews, the defendant here, nor Mr. Austin, his partner in business."

The fact that the plaintiff had brought suits against other parties was not relative or material to the issue formed by the pleadings. Nor was it necessary to shed light upon the direct examination, nor did it tend to impair the credibility of the witness or impeach any portion of the evidence given by him in chief. Nor do we think the fact that the defendant had put in evidence a letter from which the quotation is made warranted the cross-examination to the extent it was allowed to be carried.

In Witcher v. Jones (43 N. Y. St. Repr. 151; S. C., 17 N. Y. Supp. 491) it was held, viz.: "In an action for libel, where exemplary damages are demanded, it is competent to prove, in mitigation, previous publications of the libelous matter by others, known to defendant at the time of his publications, and relied upon by him as authority. But evidence of contemporaneous publications by others does not tend to disprove malice and is inadmissible." In the course of the opinion delivered in that case PRYOR, J., said: “If, therefore, the defendant uttered the libel in good faith upon the authority of others, that circumstance manifestly tends to disprove a malicious motive in the publication; and, accordingly, in mitigation of damages, the defendant may always show other publications, known to him at the time of his repetition of the defamatory matter. But, obviously, his motive in the publication could not have been affected by a fact of which he was then ignorant, and hence the palpable absurdity of admitting such fact in disproof of malice." (Citing Hatfield v. Lasher, 81 N. Y. 246; Willover v. Hill, 72 id. 36; Morey v. Morning Journal Assn., 123 id. 207.)

In Van Ingen v. Mail & Express Pub. Co. (35 N. Y. Supp. 842) the court was requested to charge: "That the fact that the same matter, substantially, was published extensively in the morning papers of the same day is to be considered by the jury in mitigation of damages." The court refused to make such charge, and it was held that no error was committed.

In Folwell v. Providence Journal Co. (37 Atl. Rep. 6) the Supreme Court of Rhode Island said: "The defendant's offer to

FOURTH DEPARTMENT, MAY TERM, 1898.

[Vol. 29.

show that the same article was published by other papers on the same day, for which other suits had been brought, was properly refused. The acts of other publishers are independent acts, which could in no way affect the defendant."

In Smith v. Sun Printing & Pub. Co. (55 Fed. Rep. 240) it was said: "Defendant further contends that the court erred in excluding testimony as to other suits having been brought against other newspapers. This objection is unsound. Such evidence was wholly irrelevant and immaterial. * * * That other newspapers which published similar libels had been prosecuted by the plaintiff for their acts was a matter with which neither court nor jury had any

concern."

The doctrine of that case seems to have been followed in Bennett v. Salisbury (78 Fed. Rep. 769).

It is contended by the learned counsel for the respondent that the cross-examination for the purpose of showing how many other publications had been made and how many suits had been brought by reason thereof by the plaintiff, was proper "to show the kind of a man the plaintiff is, by showing the attitude which he has assumed touching the subject-matter of the libel in question." We think there is no force in that view of the matter. The fact that numerous other parties had libeled the plaintiff, and that he had sought retractions from the several wrongs thus perpetrated upon him, did not tend in any way to impeach his general character or to mitigate the offense of the defendants in publishing the article mentioned in the complaint. As was said by KENT, Ch. J., in Tillotson v. Cheetham (3 Johus. 61): "The plaintiff is entitled to his strict compensation for every injury. A satisfaction for one tort is no satisfaction for another."

Such was the rule in England (Saunders v. Mills, 6 Bing. 213; S. C., 3 M. & P. 520) until 1888, when it was changed by the 6th section of chapter 64, 51 and 52 Victoria, which provides:

"Sec. 6. At the trial of an action for a libel contained in any newspaper the defendant shall be at liberty to give in evidence in mitigation of damages that the plaintiff has already recovered (or has brought actions for) damages or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought."