Appeal from Trial Term, New York County.
Action by Bertha Burkhardt against the Press Publishing Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Affirmed.
[114 N.Y.S. 452] W. H. Van Benschoten, for appellant.
Laurence A. Sullivan, for respondent.
Argued before PATTERSON, P. J., and McLAUGHLIN, INGRAHAM, CLARKE, and HOUGHTON, JJ.
Action to recover damages for libel. The libel complained of consisted in printing what the plaintiff claimed was her picture in defendant's newspaper as the picture of one Marie Prosi Cavonne, an alleged barmaid and murderess. The article published in connection with the picture was headed:
" Marie Cavonne, Spanish Widow Who Figured in Murder and Hotel Keeper Dowling Under Arrest For Crime."
Immediately beneath the picture were the words, " Marie Prosi Cavonne."
The defendant in its answer denied the material allegations of the complaint, and as a second and partial defense alleged, in effect, that the article published was true; that before the publication one of its employés called at the home of the family of Marie Prosi Cavonne, and was given two pictures of her by her brother-one a tintype representing a group of three persons, one of whom was pointed out by the brother as being his sister, and the other a small head or button picture which the brother said was a portrait of his sister-that thereupon such employédelivered to defendant to be published with the article the pictures so given to him by the brother as being the pictures of Marie Prosi Cavonne; and that the defendant, relying upon the statements thus made to its employé, and believing them to be true, published the article and pictures. At the trial it appeared that only one picture was printed and that the small one, and it was established beyond dispute that this was not a picture of Marie Prosi Cavonne, and there was sufficient evidence to justify the jury in finding that it was a picture of the plaintiff. The evidence was also sufficient [114 N.Y.S. 453] to justify the conclusion of the jury that the defendant's employé, who was instrumental in having the picture printed, knew, or ought to have known, when it was used, that it was not a picture of the Cavonne woman. The plaintiff had a verdict for $1,000, and, from the judgment entered thereon and an order denying a motion for a new trial, the defendant appeals.
In support of the appeal, it is urged that the court erred in admitting in evidence against defendant's objection the tintype referred to. The objection was based upon testimony to the effect that, when the tintype was first handed to defendant's employé, the father of the Cavonne woman said it was a poor picture, and directed a sister to get a better one, and thereupon she went into another room and brought back the button picture. But both pictures were given to the employé, and it was proper for the jury to consider both, with the other evidence, for the purpose of ascertaining when the button picture was used, if the defendant was justified in using it as the picture of the Cavonne woman. In other words, it having been established beyond dispute that the one which was used was not the picture of the Cavonne woman and that the tintype was, the latter was properly received in evidence for the purpose of comparison and determining whether the defendant carelessly and recklessly used the one which it did.
Next, it is claimed that the court erred in instructing the jury that, if they found that the defendant in using the picture acted with wanton and willful disregard of the plaintiff's rights, they might award punitive damages. The form of the charge is not complained of, nor do I understand that the law as laid down by the trial judge is questioned by appellant's counsel, except that the same is not applicable to the facts proved, because in the brief presented he says, and this fairly presents the claim:
" In a word, the contention of the appellant is that there was no evidence or not sufficient evidence to warrant the court in leaving it to the jury to determine whether or not defendant had acted in willful, wanton, and reckless disregard of the plaintiff's rights, and, unless there was evidence sufficient to warrant such a finding, punitive damages could not be given. The error complained of is that the court left it to the jury to determine this question, when *** the court should, as defendant's counsel requested, have charged the jury that they could not find punitive damages."
What the court actually said to the jury was that:
" If you shall find in this case that the defendant acted in such a way as to show a wanton and willful disregard of the rights of the plaintiff, you may give what are called punitive damages-damages not intended to compensate the plaintiff for the injury which she has suffered, but intended to punish the defendant for the wrong which it has committed, and to discourage the commission of such wrongs in the future. The amount of such damages depends largely upon what you shall determine to have been the fact with regard to the action of the defendant and its representative on this occasion.*** If so, the defendant has committed a libel on the plaintiff, and the plaintiff is entitled to recover ...