# Morrison v. Press Publishing Co. > The Superior Court of New York City · April 16, 1891 · 27 Jones & S. 216 URL: https://www.frixlaw.com/law-library/cases/8319220 ## Case - **Full name:** JOHN MORRISON v. THE PRESS PUBLISHING COMPANY - **Court:** The Superior Court of New York City - **Decided:** April 16, 1891 - **Citations:** 27 Jones & S. 216; 38 N.Y. St. Rep. 357; 59 N.Y. Sup. Ct. 216 - **Precedential status:** Published - **Opinion:** Concurrence by Truax - **Judges:** Sedgwick, Truax - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8319220 ## Opinion text Truax, J. (concurring). The defendant attempted to show in mitigation of damages, that some years prior to the publication of the alleged libel by the *221 defendant, an affidavit charging the plaintiff with having circulated stories concerning the chastity of women employed in a certain carpet factory, was published in another newspaper in the city of New York. In one instance the attempt was made by asking the plaintiff on cross-examination if a certain affidavit (the affidavit above referred to), did not charge him with having circulated stories concerning the chastity of girls in a carpet factory. This question was ruled out and the defendant excepted. The exception was not well taken. The evidence sought to be elicited was not the best evidence of the contents of the affidavit, nor was this the proper way of proving that plaintiff had circulated such stories, if that fact were material to the issue. ' Nor did this evidence tend to rebut the presumption of malice on the part of the defendant, for there is nothing to show that defendant was aware of the affidavit, at the time it published the libel concerning the plaintiff. Hatfield v. Lasher, 81 N. Y. 246 . Nor was it proper to show that other persons had, before the publication of the libel by the defendant, published and circulated libelous statements concerning the plaintiff. In the first place, the publication alluded to was made some four years prior to that of the defendant, and the fact that such a publication had been made did not tend to show that the damage suffered by plaintiff by the publication of the libel by the defendant was not necessarily attributable to the act of the defendant. And it is not the law in this state that the defendant, in an action for libel, can show that the plaintiff’s reputation was so bad that defendant’s libel did not injure it. Hatfield v. Lasher, supra, and cases there cited; Prescott v. Tousey, 50 Super. Ct. 12. On the trial the court asked a witnes what plaintiff’s reputation in the community in which he, the plaint *222 iff, resided, was, and the witness answered, that among laboring men with whom he, the witness, associated, plaintiff’s reputation was bad. This answer was stricken out as not responsive, and defendant excepted. The answer was not responsive, and it was not error for the court to strike it out. But even if it was error, the error was cured, for immediately afterwards, in answer to another question, the witness said that plaintiff’s general reputation in the community was bad. The defendant called witnesses to show that plaintiff’s general' reputation at the time the libel was published by the defendant, was bad. The plantiff, in rebuttal, called witnesses to show that at the time of such publication his general reputation was good. On cross-examination one of these witnesses said that he had heard among laboring people and members of laboring organizations (the plaintiff was prominent in labor organizations), stories derogatory to plaintiff’s character. The witness was then asked what these stories were generally. This question was ruled out, and the defendant excepted. No error was committed. It may be that defendant would have had the right to show what plaintiff’s reputation was, but it is doubtful if it had the right to show what his character was. It is also to be noticed that the question applied to stories affecting the character of the plaintiff, told, as well after the publication of the alleged libel. as before, while the witness on the direct-examination had limited' his testimony to the plaintiff’s reputation at the time of the publication of the alleged libel. There were two other exceptions to rulings of a like kind, but for the reason last stated they were not well taken. The trial judge charged that there was malice in the publication, and to this the defendant excepted, but the judge also charged that the evidence would *223 not warrant the jury in finding that there was actual malice toward the plaintiff; that in publishing this article, which was libelous, the law infers malice,— that is, malice in law, existed. He then defined actual malice as distinct from malice in law, to be such malice as attached to an act when committed by a revengeful or spiteful disposition. This was, in effect, charging that while there was no actual malice shown, still the jury could infer malice from the mere fact of the publication of such a libel. It was not error so to charge. In this case malice was proved when the publication was proved. Fry v. Bennett, 5 Sand. 54. This court declared in the case above cited, that when a publication was libelous upon its face the law implied that it was published with a malicious intent, and that malice in such cases is a conclusion of law which the plaintiff is not required to prove and which the defendant is not allowed to deny. Under the authority of this case it would have been error for the trial judge to submit the question of the defendant’s malice to the jury, and the fact that the trial judge charged that there was no proof of actual malice is immaterial. What the trial judge meant was, that there was no proof of malice outside of the malice that the law inferred from the mere fact of the publication of the libel, and for this malice in law the jury might, under the Samuels case, award exemplary damages. The defendant gave no evidence that tended to show that there was in fact no actual malice; but even if it had given such evidence the trial judge did not err in charging not that the jury must, but that it might give exemplary damages. The case was one within the rule laid down by Judge Davis in Samuels v. The Evening Mail Association, 9 Hun, 288 , entitling the plaintiff to exemplary damages. The publication was grossly libelous, was *224 negligently and recklessly made, and made without any regard to. the rights of the plaintiff. The last alleged error to which our attention has been called by counsel for defendant, relates to a request of the defendant to charge that in fixing the amount of damages to be awarded the plaintiff, the jury must bear in mind that the defendant did not publish any statement that the plaintiff was guilty of the charges which were said to have been made against him, but merely that he was charged with certain of-fences, and they can award only such damages as would result from the publication that Morrison had been charged with the offences, and not with such damages as might flow from the publication of a statement that Morrison was guilty of the charges. It was not error for the judge to refuse to charge as requested. The defendant cannot escape responsibility for libeling plaintiff by showing that the libeling was done on the authority of some other individual. Dole v. Lyon, 10 Johns, 447. The judgment and order appealed from are affirmed, with costs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8319220. Public record. Not legal advice.