Action for libel. The Supreme Court, Clinton County, Trial Term, Charles M. Hughes, J., rendered judgment on verdict, which separately stated awards for compensatory and punitive damages, and defendant appealed. The Supreme Court, Appellate Division, Zeller, J., held, inter alia, that evidence was insufficient to sustain award for punitive damages.
Judgment to be reversed unless plaintiff should stipulate to reduce verdict to amount of compensatory damages.
[136 N.Y.S.2d 450] Sidney Schreiberg, New York City, for appellant.
Feinberg, Jerry & Lewis, Robert J. Feinberg, Plattsburg, for respondent.
Before FOSTER, P. J., and BERGAN, HALPERN, IMRIE and ZELLER, JJ.
‘ True Cases of Women in Crime’ is a magazine published by the defendant and circulated in the United States and Canada. A news photograph of the plaintiff, Mrs. Geraldine Frechette of Plattsburgh, New York, sitting at the side of her sister, Mrs. Irene Burowsky of Chicago, Illinois, appeared in the January 1954 issue of the magazine and, as the only printed matter in connection with it, had the following caption:
‘ Another case of infanticide. Faced with a murder charge in the senseless killing of her 3-year-old son, Peter, Mrs. Geraldine Frechette, of Plattsburgh, New York, breaks down after describing to police how she beat him, then tied him to a hot water pipe in a dark closet-‘ To discipline him,’ she said.'
The caption would have been true if Mrs. Burowsky's name had been used in place of the name of the plaintiff. It was Mrs. Burowsky who was arrested in Chicago and charged with the death of her son. When the picture was taken, Mrs. Frechette was with her sister to extend comfort to her after her arrest. The caption as printed was libelous per se and the plaintiff brought an action to recover damages. The answer admitted the publication and that it was untrue and set up facts in mitigation of damages. Upon the trial, the magazine was introduced in evidence and the plaintiff, after testifying in her own behalf, rested. The defendant offered no proof. After summation of counsel and charge by the trial judge, the jury deliberated and returned a verdict in favor of the plaintiff for $15,000 indicating that $5,600 was allocated for compensatory damages and $9,400 for punitive damages.
Although malice sufficient to support an award of compensatory damages is presumed where the publication is libelous per se, proof [136 N.Y.S.2d 451] of actual malice or its equivalent is necessary to support an award of punitive damages. Carpenter v. New York Evening Journal Publishing Co., 111 A.D. 266, 97 N.Y.S. 478. Actual malice may be proven by showing acts or utterances or other publications of the defendant which display hatred, spite or ill will toward the plaintiff and, in some cases, it may be implied from the falsity of the publication itself. Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 66, 126 N.E. 260, 263, 10 A.L.R. 662. The equivalent of actual malice may consist of publishing a libel with such negligence and carelessness as to indicate a wanton or reckless disregard of the rights of others. Holmes v. Jones, 121 N.Y. 461, 24 N.E. 701; Amory v. Vreeland, 125 A.D. 850, 110 N.Y.S. 859. Upon the trial of this action, the plaintiff did not attempt to prove actual malice nor did she seek to have it inferred. She sought punitive damages solely on the ground that the news photograph and caption were published with gross
carelessness. Upon this, as in a case where punitive damages are sought on the ground of actual malice, the plaintiff has the burden of proof. Cohalan v. New York Press Co., 212 N.Y. 344, 106 N.E. 115; Devoy v. Irish World & American Industrial Liberator Co., Inc., 208 A.D. 319, 203 N.Y.S. 369.
On the subject of punitive damages, the trial judge instructed the jury, in part, as follows: ‘ before you can find a verdict of exemplary damages, this plaintiff must establish to you by a fair preponderance of the evidence that the defendant, in its publication, was wanton and reckless and guilty of gross negligence and carelessness which in a sense amounts to a spirit of mischief or which might be inferred as malicious, but we are not confronted here with malice. Counsel for the plaintiff and the defendant have stated to you that that element is not here, but, as to the punitive damages, you do have that matter as to what duty was the defendant here called upon to inquire about before publishing this article.’ In general, this was a correct statement of the law applicable to the theory upon which the plaintiff was seeking an award in excess of compensation. But the defendant argues that the plaintiff did not meet the burden of proving that the defendant was ‘ wanton and reckless and guilty of gross negligence and carelessness'.
No testimony was given to show where or how or by whom the name of the plaintiff was substituted for that of her sister. The plaintiff asserts that the defendant's answer contains evidence of its gross and wanton negligence and points particularly to those paragraphs-parts of which were addressed to the plaintiff's cause of action for invasion of privacy which was withdrawn at the commencement of the trial-which allege that the occurrence was a subject of great public interest and was featured in various newspapers and described on the wire news services. However, we do not construe the answer or any part of it as furnishing the basis of an inference that the defendant was grossly careless ...