APPEAL by the defendant, the Star Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of December, 1910, upon the verdict of a jury for $25,000; also from an order entered in said clerk's office on the 19th day of December, 1910, denying the defendant's motion for a new trial made upon the minutes, and also from an order entered on the 13th day of January, 1909, striking out certain portions of defendant's amended answer as irrelevant and scandalous.
Clarence J. Shearn, for the appellant.
James M. Gray [Joseph E. Owens with him on the brief], for the respondent.
The verdict for $25,000 damages in the plaintiff's favor is so excessive that, in our opinion, the judgment should be reversed and a new trial ordered.
It is within the province of this court to reduce the recovery, but there has been such apparent confusion, as it seems to us, in the minds of counsel and in the rulings of the court upon certain questions involved in this case that we believe the ends of justice will be promoted by a new trial, and it will not be amiss at this time to discuss some of the questions raised, for the guidance of counsel and court on such a retrial of the case.
The defendant published in its newspaper the following article of and concerning the defendant:
'OSTERHELD'S WIFE TO SUE FOR DIVORCE.
"A Hundred Reasons,' She Says; 'Humiliation Because of Women Is One.'
'She Was His Inspiration.
'I Loved Him, but Women of Church Have Turned His Head.'
'Mrs. Mary Osterheld, wife of the Reverend Dudley Oliver Osterheld of the Methodist Episcopal Church of Ozone Park, Long Island, whose domestic troubles were heard before Supreme Court Justice Garretson, in Flushing, on Saturday, declared last night she would bring divorce proceedings against her husband as soon as her attorney was able to draw up the papers.
'Mrs. Osterheld was at the home of her brother, George Schroeder, No. 365 Grove Street, Brooklyn. It was here last week that the papers were served upon her in writ of habeas corpus suit wherein the minister tried to recover their two children whom she is said to have kidnapped in January last. The house is a very neat looking one and does not bear out the impression made by the minister, who said he did not want his children in such a place.
"I will never live with my husband again,' said Mrs. Osterheld. ' There were a hundred reasons for leaving him. The principal one was his inhuman treatment and the humiliation I suffered. When I met him he was an uneducated man. He used to call me his inspiration. I induced him to study because I loved him. We were married six years ago. The first year we were forced to live on his salary of $350 a year as a lawyer's clerk.
"Then he studied for the ministry and two years ago was fully ordained. Ambition seized him and he threw himself into any crusade, such as the one against the liquor dealers, although his father was one and his brother is one. He never remained home at nights and humiliated me by his attentions to other women. The women of the church turned his head. As for money, I had no clothes and little food. He never appeared satisfied unless he had a flock of women about him.
"I know what the statutes of the State require to obtain a divorce and I am going to sue for one, and when the testimony is heard in court the Rev. Dudley Oliver Osterheld will be shown in his true colors.'
'Mrs. Osterheld is a refined little woman with a sweet but determined countenance. She is particularly incensed against the women of her husband's congregation, saying they really were responsible for the separation.'
In his complaint the plaintiff set forth as libelous the following excerpt from the entire article:
'REV. OSTERHELD'S WIFE TO ASK DECREE.
'Mrs. Mary Osterheld, wife of the Reverend Dudley Osterheld, of the Methodist Episcopal Church of Ozone Park, Long Island, whose domestic troubles were heard before Supreme Court Justice Garretson in Flushing on Saturday, declared last night she would begin divorce proceedings as soon as her attorney was able to draw up the papers.'
'I know what the statutes of the State require to obtain a divorce, and I am going to sue for one, and when the testimony is heard in court the Rev. Dudley Oliver Osterheld will be shown in his true colors.'
He thereby based his right of recovery simply on that portion of the article whereby it is alleged he was charged with adultery, omitting any reference to the other portions of the same article charging him with cruel and inhuman treatment of his wife and other dereliction of his duties as a husband and father. These omitted statements, if untrue, were certainly libelous, and a fair inference to be drawn from the omission to complain of their publication is that the plaintiff sought to avoid judicial inquiry into their truth.
In its original answer to the complaint the defendant, among other things, not only set up the entire article and undertook not only to justify by appropriate allegations the statements not complained of, but to plead them also by way of mitigation of damages.
The plaintiff moved at Special Term to strike out these allegations, as well as others contained in the answer. The motion was granted on the ground that the matter was scandalous and
irrelevant. This appeal brings up for review not only the judgment entered on the verdict, but also the order of the Special Term pursuant to the provisions of section 1316 of the Code of Civil Procedure.
The defendant has at no time attempted to justify that portion of the article complained of whereby the plaintiff is inferentially charged with the commission of adultery. It does, however, contend that it should have been permitted to have plead the entire article, and to have shown by way of reduction and mitigation of damages the truth of the statements contained in the balance of the article. On the trial, as the pleadings stood, the defendant was confined by the rulings of the court to asking the ...