Bee Publishing Co. v. World Publishing Co.

82 N.W. 28, 59 Neb. 713, 1900 Neb. LEXIS 58

• Court: Nebraska Supreme Court
• Decided: March 7, 1900
• Docket: No. 9,105
• Status: Published

Opinion

Sullivan, J.

This proceeding in error- brings up for review a judgment of the district court of Douglas county in favor of the World Publishing Company and against the Bee Publishing Company. The action was brought to recover damages for an alleged libel published by the defendant concerning the plaintiff, and in relation to its business. Each of the litigants is a corporation engaged in the publication of a newspaper in the city of Omaha. The article complained of was printed in two editions of the Omaha Daily Bee and, in substance, asserted that the World-Herald, the newspaper published by the defendant, had been maintaining for some time a precarious existence; that it was no longer able to meet its financial obligations; that it was tottering, bankrupt and about to pass out of existence. The story was told with much detail and ornamentation, and was well calculated to convince the reader that the plaintiff was moribund and about to collapse as a business concern. The defendant, in its answer, admitted the publication of the article as set forth in the petition, and alleged that at the time of such publication it was generally believed that the plaintiff was about to sell, or had sold, its newspaper; that the article in question was published as an article of news, without malice, with good motives and for justifiable ends. It was also alleged that the plaintiff was, in fact, trying to sell its newspaper, and that its assets were less than its liabilities. During the trial the court- admitted, over defendant’s objections, evidence tending to show that the libelous article was the product of actual malice, and that it was published with a deliberate purpose to impair the plaintiff’s credit and destroy its business. These rulings are now assigned for error.

In this state the measure of recovery in all civil actions is compensation for the injury sustained. Exemplary damages are never allowed. See Boyer v. Barr, 8 Nebr., 68; Roose v. Perkins, 9 Nebr., 304; Riewe v. McCormick, 11 Nebr., 261; Boldt v. Budwig, 19 Nebr., 739. The evidence of express malice was, therefore, improper, if received for the purpose of influencing, the jury in determining the amount which the plaintiff ought to recover. If the publication was false and not privileged, legal malice was indisputably established, and the plaintiff-was entitled to full reparation for the wrong done it, without proving that the defamation was inspired by resentment, malevolence or a desire on the part of the defendant to be rid of an offensive business competitor. But it seems clear to us, from a careful examination of the entire record, that the evidence in question was not given to enhance damages, but to disprove the defendant’s claim that in libeling the plaintiff it acted in good faith, and from motives altogether proper and justifiable. The plea of justification was defective, no doubt, in alleging evidence of plaintiff’s insolvency instead of setting forth the ultimate facts, but it was treated by the court and the litigants as a sufficient plea; and it was, we think, such an evident and obvious attempt to justify the libel that it might have been amended and its infirmity cured, without terms, during the trial, or even after verdict. It was within the doctrine of McCleneghan v. Reid, 34 Nebr., 472, a denial of malice and a substantial justification of the act of which plaintiff complains. That the Bee Publishing Company relied on the truth of the article and the motives for its publication as a complete defense, is shown by the fact that it produced testimony tending to prove that the plaintiff was insolvent and that the defendant acted in good faith and under a sense of duty to the public. If this evidence was not designed to sustain a plea of justification, it is difficult to conceive for what purpose it was offered. The trial court charged the jury that exemplary or punitive damages were not recoverable, and, in effect, advised them that neither malice nor good faith could be taken into account, or given any weight whatever, in the assessment of damages. So it appears that the evidence of express malice was not only properly received, but was, under the instructions of the court, kept within its legitimate sphere of influence.

Another reason assigned for reversing the judgment is that the damages awarded are excessive. In this connection it is insisted that the defamatory article was not libelous per se, and that the loss of advertising patronage, not having been specially pleaded, was not recoverable under a general allegation of damages. The article was libelous per se; it contained a distinct imputation on the plaintiff’s solvency; its natural and inevitable tendency was to produce injury. The law presumes that some damage did result from, the publication, and it was the business of the jury to determine the amount. See 1 Jaggard, Torts, 493; Republican Publishing Co. v. Miner, 12 Colo., 77; Hubbard v. Rutledge, 52 Miss., 7; Boogher v. Knapp, 76 Mo., 457; Mitchell v. Bradstreet Co., 116 Mo., 226; Lock v. Bradstreet Co., 22 Fed. Rep., 771; Newell v. How, 31 Minn., 235. In Odgers, Libel & Slander, 293, it is said: “Even if no evidence be offered by the plaintiff as to damages, the jury are in no way bound to. give nominal damages only; they may read the libel and give such substantial damages as will compensate the plaintiff for such defamation.” See Lick v. Owen, 47 Cal., 252; Tripp v. Thomas, 3 Barn. & Cres., 427*. In this case there was evidence showing that plaintiff was conducting a very extensive business, requiring an annual outlay of about |180,000; that the Omaha Bee had a wide circulation in this and other states, and reached a great many of plaintiff’s advertising customers; that in the year following the publication of the libel there was a considerable falling off in plaintiff’s advertising patronage. There was also testimony of a general character tending to show the mischievous effect of a charge of insolvency upon the advertising business of a newspaper. This evidence was competent and material. It was proper to be considered by the jury in determining what sum would afford just reparation to the plaintiff for the injury resulting from the defendant’s wrongful act. In assessing the damages the jury were authorized to take into account the probable future as well as the actual past; they were required to assess the damages once for all. See Odgers, Libel & Slander, 292; True v. Plumley, 36 Me., 466. Under the general allegation of loss of business, it was competent for the plaintiff to prove a general loss or decline of patronage without naming particular customers, or proving that they had ceased to advertise with it. See Odgers, Libel & Slander, 319; Weiss v. Whittemore, 28 Mich., 366; Mitchell v. Bradstreet Co., 116 Mo., 226; Evans v. Harries, 38 Eng. Law & Eq., 347; Trenton Mutual Ins. Co. v. Perrine, 3 Zab. [N. J.], 402; Broad, v. Deuster, 8 Biss. [U. S.], 265; Newell, Slander & Libel, 868. But even if it were necessary to plead specially the items of loss occasioned by the libel, the jury were justified in considering the evidence introduced by the plaintiff, because no attempt was made to exclude it on the ground that the allegation of damage was general. See Bergmann v. Jones, 94 N. Y., 51. Everything considered we can not say that the damages awarded by the jury are so large as to indicate that the verdict is the result of passion or prejudice, and yet they exceed, we think, the actual loss suffered'by the plaintiff in its business. One who deliberately libels another can not justly insist that every pecuniary loss caused by the defamation shall be pointed out with precision. There is no unerring standard for the measurement of damages in this class of cases. Much latitude must of necessity, be given'to the practical wisdom and sound discretion of the jury. They should be put in possession of the material facts, and directed to make their award, bearing in mind that the relation of cause and effect must always exist between the conduct complained of and the loss for which damages are given.

We will now consider some objections to evidence introduced by the plaintiff to prove the extent of the injury inflicted upon it. Cadet Taylor and Gilbert M. Hitchcock were called as witnesses and testified in a general way to the conditions upon which the successful prosecution of a business like that of the plaintiff depends. The tendency of the evidénce was to show the importance and value to a newspaper of a reputation for stability and permanence, and the disastrous, consequence of the want of such a reputation. We are of the opinion that the evidence was competent and its reception proper. The business of a great newspaper is something with which the average juror is not familiar. The considerations which influence advertisers to give or withhold patronage are not known to him; and it is, therefore, permissible for persons of special experience to testify to what extent the success of a publisher in getting and retaining business depends upon his good repute. The defendant has referred us to no decision holding evidence of this character inadmissible, and we have found none in the course of a somewhat extended investigation of the cases dealing with the subject of expert proof. It is true that both Hitchcock and Taylor testified to some facts which are trite and known of all men, but this was in no respect prejudicial to the defendant; it could not have been injured by the affirmation of facts of universal recognition.

A further contention of defendant is that the court erred in permitting Mr. Hitchcock to testify to the falling off in plaintiff’s advertising business during the year following the publication of the libel. It is asserted that this evidence was incompetent, because it was merely the conclusion of the witness based on an examination of the books of the World Publishing Company. It is elementary, of course, that in all judicial proceedings disputed questions of fact must be established by the best means attainable, and that evidence can not be received which indicates on its face that it is secondary and that the original source of information is in existence and accessible. Tested by this rule, it must be conceded that Hitchcock’s testimony, to the extent that it was a conclusion from the books of the plaintiff, was inadmissible. It was certainly improper for the witness to state the result gathered by him from an examination of the books themselves, because, even if the entries were numerous and complicated, the production of the books, they being within the jurisdiction of the court and subject to its orders, was a precedent and indispensable condition to the introduction in evidence of a summary or abstract of their contents. Counsel for the defendant was entitled to cross-examine the witness with the books before him, and with the information afforded by them, test the cor-. rectness of the conclusions given to the jury. See 1 Greenleaf, Evidence [15th ed.], sec. 82; 1 Jones, Evidence, sec. 200; 1 Rice, Evidence, p. 153; Boston & W. R. Co. v. Dana, 1 Gray [Mass.], 83; Burton v. Driggs, 20 Wall. [U. S.], 125; Wolford v. Farnham, 47 Minn., 95; Culver v. Marks, 122 Ind., 554; Brayton v. Sherman, 23 N. E. Rep. [N. Y.], 471; Poor v. Robinson, 13 Bush [Ky.], 290; Insurance Co. v. Weide, 9 Wall. [U. S.], 677; Anchor Mill Co. v. Walsh, 108 Mo., 277; Greenville v. Ormand, 51 S. Car., 58; Holmes v. Marden, 12 Pick. [Mass.], 168. But while it is clear the rulings here complained of were erroneous, they were not, we think, prejudicial to the defendant, and consequently do not afford a sufficient reason for reversing the judgment. Mr. Hitchcock was thoroughly familiar with the business of the World Publishing Company. He knew from day to day the amount of its receipts and expenditures, and when asked to what extent the plaintiff’s advertising patronage had declined during the year following the publication of the libel, he testified from an abstract made up.from the advertising register, not because it was necessary for substantial accuracy of statement to refer to any memorandum, but in order, it would seem, to be strictly and mathematically correct. That the diminution of business to which the witness testified was approximately known to him, entirely independent of the books, is a conclusion from which we can not escape. He testified: “I know the volume of business transacted by the company, and I know it from constant management of the business and control of it, and also from constant inspection of the books which record the transactions.” That the testimony was in fact absolutely true, is not questioned; that actual prejudice resulted from its admission is not claimed. The contention of counsel for defendant, as we understand it, is simply this, that the evidence, being technically inadmissible, it was reversible error to permit it to go to the jury. Our view of the matter is that the credibility and worth of the evidence does not depend alone upon the books of account, or the memoranda used by the witness, but also upon his independent knowledge of the facts to which he testified. The assignments of error based upon the reception of evidence showing the loss of advertising patronage can not be sustained.

The refusal of the court to give certain instructions requested by the defendant is made the subject of complaint. So far as these requests state correct and pertinent propositions of law, they are embraced in the general charge which is, in most respects, an admirable exposition of the law of libel as applied to the facts of this case.

On the subject of damages the instructions were very explicit. The jury were told that the damages which they were authorized to allow were actual damages, and such only as resulted directly from the libelous article set out in the petition. This statement was sufficient. It could not have been misunderstood. It was all the law required.

For the reason that the damages awarded are in excess of the loss sustained by the plaintiff, the judgment will be reversed unless a remittitur for the sum of $3,000 shall be filed with the clerk of this court within thirty days from this date. If such remittitur be so filed, the judgment for $4,000, with interest on that amount, will be áffirmed. It is the settled doctrine of this court, even in actions cx delicto, that a judgment based on a verdict which is excessive, but which was not given under the influence of passion or prejudice, will be permitted to stand on condition that the excess be remitted. See Fremont, E. & M. V. R. Co. v. French, 48 Nebr., 638; Fremont, E. & M. V. R. Co. v. Leslie, 41 Nebr., 159.

Judgment accordingly.