author: Tan Brunt, P. J.:

text:
    William J. Pell and Lee Nutting, Respondents, v. Mary Ann Folger and Emily Grant, Appellants, Impleaded with Others.

      Construction of a will — substantial interest in property thereunder — right of trustees to the possession of property.

    A bequest to tbe testator’s wife, of all bis property, “tbe income from it to be received and used for tbe benefit of berself and sister, Emily Grant, during tbe natural life of my wife,” without any designation of what share of tbe income tbe sister was to receive, and followed by an apparent power of disposition given to tbe wife, held, not to give tbe sister any interest in the property which made her a necessary party to any agreement in respect to its disposition.
    Tbe parties interested in tbe testator’s property (including tbe widow, but not her sister), after tbe death of tbe testator and before tbe probate of tbe will, executed an agreement purporting to convey tbe legal title to the property to trustees; after tbe probate of tbe will and tbe appointment of tbe widow as administratrix with the will annexed, the persons named as trustees in the agreement brought an action to compel the widow and sister to account for and surrender to them the possession of certain portions of the testator’s personal property; the complaint in which action was demurred to.

      Held, that the points urged by the defendants, that the plaintiffs had no standing to compel the sister to account, she having substantial rights under the will; that she was only accountable to the administratrix, and that the appointment of the plaintiffs as trustees, if it had any force, was superseded by the subsequent appointment of the administratrix, were untenable;
    'That the action being apparently brought to recover property in the possession of the widow and sister, and that being the cause of action declared upon, they were both necessary parties, and a demurrer on the ground of an - improper joinder of causes of action against the widow, in which the sister had no interest, and vice vena, was not good.
    Appeal by the defendants, Mary Ann Folger and Emily Grant, from an interlocutory judgment of the Supreme Court, rendered at the New York Special Term, and entered in the office of the clerk •of the city and county of New York on the 5th day of December, 1892, overruling the said defendants’ demurrers to the complaint, with notice of an intention to bring up for review upon such appeal the decision and order and direction of the court upon which said interlocutory judgment was founded.

      Fisher da Voltz, for the appellants.

      H. H. Mem, for the respondents.
   Tan Brunt, P. J.:

In the consideration of the demurrer interposed by the defendants, it is not necessary to determine whether the plaintiffs are entitled to the relief prayed for in their complaint or not. , The question is whether the complaint sets forth any causes of action against the demurring defendants; and if so, whether such causes of action have been improperly united, and whether the plaintiffs have a right to enforce the same.

The complaint sets forth the death of "William B. Folger, leaving .a last will and testament; and alleges that the deceased left as his .sole representatives, heirs at law and next of kin, his widow, Mary A. Folger, his daughter, Mary E. Pell, and his grandson, Lee F. Nutting, the son of a deceased daughter of said testator. Such last will and testament is as follows:

“Brooklyn, May 280, 1882.

“In the Name of God, Amen: I, William B. Folger, of theOity of Brooklyn, County of Kings, State of New York, con. sidering the uncertainty of life and being of sound mind and memory, do make and declare and publish this my last will and testament:

First. First, paying all debts due by me at my demise.

“Second. To Greenwood Cemetery, or those in authority to-receive it, for the care and preservation of my lot in said cemetery,, the sum of five hundred dollars, the interest thereof to be devoted to the above purpose.

Third. To my wife, Mary Ann Folger, I give and bequeath all my property, both real and personal, of every description that I. may possess at the time of my death, houses, lands, mortgages, both, real estate and chattel, furniture, pictures, books, jewelry of any and every kind or description at my death that I may possess, including lot in Greenwood Cemetery. Every and all of said property to be used and the income from it to be received and used for the benefit of herself and sister, Emily Grant, during the natural life of my wife..

Foivrth. At the death of my wife, the house and lot (if in her possession), 212 South Third Street, I give and bequeath to my grandson Lee F. Nutting (if living), if not living at the death of my wife, the above house and lot, 212 South Third street, to be-disposed of as my wife in her judgment feels disposed for her own benefit.

Fifth. To Mary E. Pell, daughter of my wife, I give in cash five hundred dollars ($500). Knowing my wife will dispose of the little I have to leave, when she has no further use for it, with justice- and equity to her daughter and grandchildren, I make no further disposal, believing that they will each receive according to their merits.

“ Signed May 28th. 1882.

“WILLIAM B. FOLGER.”

The complaint further alleges: “ That a contest having arisen over the probate of the will of the said testator, a compromise was duly entered into between the parties in interest, in pursuance of which compromise • and the settlement of said controversy, there was executed in the city of New York, under seal, an instrument in the nature of a deed of trust, dated April 18,1889 (a fearfully and wonderfully-made instrument certainly), which was duly executed by said Mary A. Folger, the widow, by the said Mary E. Pell, the daughter of the said testator, and was also executed by the said Lee Nutting and William J. Pell, the plaintiffs in this action.”

It appears from this instrument (a copy of which is annexed to the complaint), after reciting the death of Folger, his leaving a last will and testament, the contest which had arisen as to its probate, and the agreement -which had been made by which it was to be admitted to probate, that the said widow Folger and daughter Pell, granted, bargained and sold one undivided half of all the property and estate, real, personal and mixed, whatsoever and wheresoever situated, of which said William B. Folger died seized, subject, as thereinafter mentioned, to William J. Pell, Jr., Albert W. Pell and Arthur C. Pell, children of said Mary E. Pell, to have and to hold the same absolutely and forever, for their own proper use and benefit; and the other undivided half thereof, subject also as thereinafter mentioned, to Lee F. Nutting, to be held by him for his own proper use and benefit, absolutely and forever. And by said instrument, the said Mary A. Folger and Mary E. Pell then sold, assigned and transferred to said Lee Nutting and William J. Pell, all the property and estate thereinbefore described, as .trustees, to have and to hold the same, for and during the life of said widow Folger; to take possession of, manage and control the same, and to pay and apply the net income arising therefrom, to the use of the said Mary A. Folger, for her life, and upon her death to divide among the parties entitled thereto under said instrument, the said personal property, if any, and any accrued income therefrom, etc., in the shares in which the principal of said personalty and said realty were to be divided, and to make partition and division of said realty among the persons then entitled thereto. From the trust therein created, there w^as excepted a certain house and lot which was thereby set off, apportioned and allotted to said Mary E. Pell, for her life, and at her death it was provided that the same should form a part of the property of said William B. Folger, by said instrument conveyed to the children of said Mary E. Pell.

This instrument being apparently executed on the 18th of April, 1889, on the 20th of May, 1889, the will of William B. Folger was admitted to probate.

The plaintiff then, after stating some legal conclusions as to the effect of the said will and trust deed, alleged the death of Lee F. Nutting, leaving as his heir at law and next of kin his father, the plaintiff, Lee Nutting, and that the defendant, Emily Grant, mentioned in the testator’s will, claims an interest in the property left by said will adverse to the plaintiffs.

The complaint then alleges that the plaintiffs have taken possession of the real estate of the deceased, but that in respect to the personalty of the estate, although they have repeatedly demanded the same from said Mary Ann Folger, she declines and refuses to surrender the same; and that the defendant, Mary Ann Folger, and Emily Grant have possession and custody of a large amount of money and other personal property, part .of the estate of said testator, of which they obtained custody by virtue of the powers of said Mary A. Folger, as administratrix of said will, and which she and said Emily Grant conceal and retain from the plaintiffs, who are entitled to the custody thereof. And judgment is prayed that the defendants Folger and Grant be decreed to account to the plaintiffs for the personal property received by them, or in their control, that was of said William B. Folger, and to deliver and pay over the same to the plaintiffs, and for such other relief as might be just.

Separate demurrers were interposed upon the part of the defendants, Emily Grant and Mary A. Folger, both demurring upon the grounds that no cause of action was stated; that causes of action had been improperly united, and that the plaintiffs had not legal capacity to sue; and the defendant Folger stating the additional grounds that no cause of action was stated for an accounting, and that no cause of action was stated to recover property which she had received as administratrix.

The points urged upon the part of the appellants are, that the plaintiffs have no standing whatever to compel the defendant Emily Grant to account to them, she having substantial rights under the will; that the estate was given to Mrs. Folger for life, for the use and benefit of herself and her sister, Miss Grant; that she is only accountable to the administratrix for any money or property that may have come' into her hands, and that the appointment of the plaintiffs as trustees, if it had any force, was superseded by the subsequent appointment of the administratrix.

In reference to tlie point that Miss Grant has any legal claim under the will of "William B. Folger, deceased, it seems to be only necessary to say that no such intention is expressed in the will. Whatever claim Mrs. Folger has upon the property left by her husband, by reason of the devise to her, the extent of which it is not necessary now to determine, there is no gift whatever of any portion of that property or of the income thereof to the defendant Grant.

And that there was no intention upon the part of the testator to-make any such gift is evident from the last clause of the will in which he apparently gives his wife a power of disposition, by inference, if not by direct language. What portion of the income was Emily Grant to receive ? What portion did the testator intend she should receive ? Was she to share equally with her sister ? Clearly such is not the intention of the testator, because, as already observed in the latter part of the will, he gives the wife an implied power of disposition, no mention being made of Emily Grant in connection therewith. If she was not to share equally with the widow in this income, what share was she to receive ? Emily Grant was to receive-only that which the widow should choose to give; because it is plain that Mrs. Folger was to receive the income and to use the income. For the benefit of herself and her sister, it is true; but it is equally evident that it was optional with her what amount should, be used for the benefit of her sister, and no legal obligation which could be enforced rested upon her in that regard. It is manifestly so indefinite and so vague that Emily Grant never acquired any interest in this estate which she could enforce.

In the case of Hawley v. James (5 Paige, 318-324, 451) it was. * held that where a testator gave an annuity of $3,000 to his wife for-her own support and for the education of her children, such bequest, being in lieu of dower, and the widow having elected to take dower, no trust was created in favor of the children. And in the case of Clarke v. Leupp (88 N. Y. 228) it was held that a bequest to the wife of all the property of the testator, to take charge of his property after his death and to dispose of the same for the benefit of' herself and children, gave no interest whatever in the property to-the children, but the widow took an absolute title. The same principle is illustrated in the case of Foose v. Whitmore (82 N. Y. 405). And other cases might be cited to the same effect. Therefore, the claim that Emily Grant has any interest in this property which made her a necessary party to any agreement in respect to its disposition is entirely unfounded ; and if the parties in question chose to confer upon these trustees the legal title to this property, Emily Grant cannot be heard to say that she will not deliver property in her possession to anybody but the administratrix.

It is further claimed that there is an improper joinder of causes of action against Mrs. Folger in which Emily Grant has no interest and vice versa.

This action is apparently brought to recover property in the possession of the defendants, Folger and Grant, and that is the cause of action declared upon in the pleadings. Such being the nature of the cause of action, Mary A. Folger and Emily Grant were both necessary parties.

The claim that none but executors, administrators or trustees can bring an action to construe a will or other instrument has little pertinence to the questions involved upon this demurrer. The question here is whether any cause of action is made out, and not a question as to the ultimate or temporary disposition of property under the will.

As already observed, the question as to whether an action for ane accounting will lie, it is not necessary now to determine, because if the plaintiffs are entitled to any relief upon the facts set out in their complaint the demurrers, must be overruled.

Upon a careful consideration of these three remarkable instruments, viz., the will, the agreement and the complaint, each being’ sui generis, we’have come to the conclusion that the complaint, states a good cause of action to recover some property of some value from the demurring defendants, and that the demurrers were, properly overruled.

The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    Therese Murphy, as Administratrix, etc., of Patrick Murphy, Deceased, Respondent, v. Frank K. Hays and Another, Appellants.

      Death alleged to ha/oe been caused by negligence — unexplained standing up of an elevator — hypothetical theories not sufficient to support a chan'ge of negligence.

    On. the trial of an action brought to recover the damages resulting from the death of plaintiff’s intestate through the alleged -negligence of the defendants, who 'were the owners of a building, evidence was given by the plaintiff that the deceased, who was an employee of a safe company, was killed by the starting up of an elevator, after it had stopped at an upper story of the defendants’ building, and while a safe which had been carried up by it for a tenant was being removed by the deceased and others; it was not claimed that the elevator or its appliances were defective, hut the plaintiff contended that the accident resulted from the negligent management of the elevator by the defendants’ servants; no direct proof of the canse of the elevator’s starting up was given, hut experts introduced by the plaintiff offered as theories to explain it, that the engineer had pressure on at the time or that there was air in the cylinder, hut these theories were not supported by facts ; it was also shown that there was no conductor in the elevator at the time of the accident, but it appeared that this was in accordance with the advice of experts, in order that the engineer might better manage the movements of the elevator.

      Held, that the plaintiff failed to show affirmatively that the accident was caused by the defendants’ negligence, and, therefore, that the complaint should have been dismissed.
    Appeal by tbe defendants, Frank E. Hays and William H. Hays, from a judgment of tbe Supreme Court in favor of tbe plain-, tiff, entered in tbe office of tbe clerk of tlie city and county of New York on tlie 22d day of November, 1892, upon a verdict rendered at the New York Circuit, and from an order entered on the lYth day of December, 1892, denying the defendants’ motion for a new trial made upon the minutes.

      Thomas 8. Moore, for the appellants.

      W. G. Smith and Nelson Smith, for the respondent.
   O’Brien, J.:

The plaintiff sues as administratrix to recover damages for the death of her intestate, caused, as alleged, by the negligence of the defendants. The intestate was in the employ of the Marvin Company as a safe-mover and was killed while 'transferring a safe to an office on the seventh floor of defendants’ building. In this building were two passenger elevators, one of which was constructed for the purpose of carrying freight as well as passengers.

The complaint alleged that the defendants, “by and through their wrongful, negligent and careless acts and omissions in the management of the said elevator, while the safe was being taken up and off the said elevator, caused the death of the said Patrick Murphy, without fault on the part of the said deceased.” The defendants’ building had been recently constructed, and no claim is advanced but that the machinery and elevators were of the newrest and most approved pattern and in all respects suitable for the uses for which they were designed, including the hoisting of safes from the ground floor to any of the other floors occupied by tenants.

The evidence shows that on the day of the accident plaintiff’s intestate, with several others who were in the employ of the Marvin Safe Company, had placed the safe on the elevator, which was then set in motion and rose until it reached the seventh story of the building, at which place it was intended to remove the safe and place it in one of the offices on that floor. When the elevator stopped, two iron shoes were put under and the car lowered so as to rest thereon. These iron shoes, which had been made according to the recommendation and under the direction of an experienced man, were for the purpose of bracing the elevator when it had arrived at the proper floor and so relieve the strain on the cables while the safe was being removed. They consisted of two broad pieces of iron which extended beneath the floor of the car and then, making a double angle, projected out over the floor of the hallway. After the elevator was thus lowered upon the shoes, according to the testimony of certain of plaintiff’s witnesses, the car began to sag and the janitor shouted down the elevator shaft to the engineer in the basement to put on some pressure. Whether the pressure was put on or not, it is uncontradicted that the car was brought to a standstill, the flooring was evened up and four or five men got hold of the safe, some at the sides and some in front, and pulling at it to run it out into the hall. While so engaged and after the safe got partly out of the car, plaintiff’s witnesses testify that the elevator rose suddenly but gradually about three feet, tipping the safe over and throwing Murphy, the intestate, who was standing in the hall in front of the safe, through the grating and down the opposite elevator shaft, killing him instantly.

Although a different view as to the cause of the tipping over of the safe was advanced by the defendants, we shall in our discussion assume the claim as to the rising of the elevator having caused the safe to be overthrown, to be the correct theory.

The fact that the accident occurred under the circumstances 'narrated would not, under the well-settled rules, entitle the plaintiff to recover. The burden was upon her to establish the liability of the defendants, and to do this she was bound to show that the death was caused solely by the defendants’ negligence. The plaintiff, recognizing this to be the rule of law, undertook to support this, burden by endeavoring to show that what produced the movement of the elevator and the throwing over of the safe was the result of such negligence. She did not claim, as shown, that any reliance-was placed upon defective machinery or appliances, but rested upon the contention that the accident resulted from the negligent management of the elevator while the safe was being taken off. Expert testimony was introduced directed towards establishing that the jumping up of the elevator was caused in one of two ways: First, because the engineer had pressure on, or, second, because-there was air in the cylinder ; and that to whichever of these causes, it was due, it was equally the negligence of the defendants. One of the experts, in answer to the question, What would cause it (the elevator) to ascend if it has stopped and is stationary % ” said: “ That would be caused, in the experience I have had, in two or three ways. One cause would be that it would have to be operated by somebody operating the hand-rope. Another cause would be that when the car was brought to a rest with a heavy load on it, this valve below here, the operating valve, wasn’t closed, or there-may have been air in the cylinder. Some additional force or pressure would have to be applied. If pressure was suddenly put. on, the car would ascend.”

How sound are these theories, supported as they are by the-opinions of experts, must be determined by the facts proven upon which they rest That anyone operated the hand-rope was discarded.

The plaintiff called the engineer of the defendants, who was in charge of the elevators at the time of the accident and who testified that the equipment of the elevators consisted of the regular pump and tank-pressure system used for passengers, in which the water is pumped into a tank and thence into the cylinders, and the pressure is regulated hy the elevator conductor by means of the wire rope which passes through the car and connects with the valve, and that in addition there was provided for the freight elevator, to raise the heavy safes, another pump, known as the “ higli-duty pump,” which forced the water directly into the cylinder without the intervention of a tank ; that upon this day the power communicated to the elevator was not from the pressure tank at all; that in hoisting up this safe that day the power was communicated directly into the circulating pipe. The valve of the pressure tank has to he closed when we are using the freight pump, so we can’t work both of those pumps at the same time with the same elevator. Upon this day, when this accident happened, we were using only one pump, the pump that I call the higli-duty pump.” He further testified that after the elevator became stationary and the shoes had been placed beneath it there was no pressure, it having been entirely shut off.

Against this positive evidence we have the testimony of witnesses who claim to have heard the janitor on the seventh floor call down to the engineer to hold the pressure,” or “ keep up .the pressure,” which the engineer states he did not hear, and as matter of fact, did not do, followed by opinions of experts that if the pressure was on, upon the weight of the safe being partially removed, it would result in the rising of the elevator.

We do not think such evidence sufficient to justify the inference that there was pressure on, particularly when we remember that the car did not continue to rise after the safe had fallen. *It would be difficult to understand, upon the theory that the rising was due to continuous pressure, how the elevator, with the safe partly upon it, could have risen three feet, upsetting the safe, and then have stopped when relieved of the weight after the safe had fallen. It would seem that the effect of such pressure, if it had existed, would have been not only to upset the safe after raising the elevator, three feet, but to cause the elevator to rise until it reached the top of the building, unless sooner stopped by the engineer cutting off or removing such pressure.

Equally without evidence to sustain it is the hypothesis that there was air in the cylinder. One of plaintiff’s witnesses testified that the engineeer in charge could have known if there was air in the cylinder, and although this very person was examined upon the other point, he was not questioned as to whether or not such fact existed. In the absence, therefore, of some evidence, it would be mere conjecture and guesswork to assign as-the cause of the elevator’s rising that there was air in the cylinder.

Apart from these theories, the plaintiff lays great stress upon the fact that there was no conductor in the elevator car, and this is assigned as an act of negligence. When, however, we consider the reason given by the engineer, of the possible danger of having a conductor on the car, though one was provided for the elevator when Used by passengers, and who upon this occasion was present, but not in the car, we do not think that upon this circumstance negligence can be predicated, notwithstanding the opinions of some of the experts to the contrary. The failure on this day to make use of the conductor was not a thoughtless omission, but a deliberate act. It was the result of advice received and the judgment of the engineer himself as to the best and safest way of running the elevator, it being thought best to keep the entire control in the hands of the engineer, and permit his being directed from above by orders, which on the day in question were given by the janitor, who was on the floor with the elevator, and without the intervention or assistance of any conductor upon the elevator car itself.

That it was not negligent to act upon their best judgment, and the advice of those who had constructed the elevator, must become apparent if for a moment we stop to consider what would be the effect of their acting contrary thereto in the event of an accident occurring. It was the view and judgment of those who constructed the elevators, and who knew the character of the pumps and the extent of the power required for raising large safes, and of the engineer who had prior to this time adopted the system, that the safest and best mode was for the engineer to have complete control over the movement of the car, and that the interference of a conductor on the car would be a source of danger on account of the high pressure employed. Under such circumstances the permitting of a conductor on the car to interfere with the movements thereof, should it result in injury to a third person, would leave the defendants in a position that they would have no ground of escape from their liability for negligence. And this liability would follow, notwithstanding they were able to show that janitors or engineers in other buildings approved of this very method of operation.

In this discussion we have confined ourselves entirely to the evidence presented on the part of the plaintiff, and which we have considered with a view to determine whether the motion made at the end of plaintiff’s case to dismiss the complaint should or should not have been granted. On this record, if not controlled by the disposition which we think should be made of the case upon the motion to dismiss, we could not consider the cpiestion as to whether or not the verdict is against the weight of evidence, for the reason that there is no statement that the case contains all the evidence, and under the well-settled rules of practice the only matters presented for review would be the judgment roll and exceptions. An exception having been taken, however, to the denial of the motion to dismiss the complaint, we are at liberty to consider whether or not such exception is well taken; and in determining that, we must assume that the plaintiff has included all the testimony produced by him upon the trial which he regarded as essential to sustain the ruling made by the court in refusing to dismiss his complaint.

~We have examined all of plaintiff’s evidence, and unless we were to hold, contrary to the rule laid down in Cosulich v. Standard Oil Co. (122 N. Y. 118), and kindred cases, that the fact of the elevator’s rising and causing the safe to tip over, raised a presumption, or was a fact, from which an inference of negligence could properly be drawn, then there was no other evidence in the case to prove that the death of plaintiff’s intestate was caused by defendants’ negligence. The only direct or positive evidence given as to the manner in which the pumps and machinery which raised the elevators were actually handled, was that given by the engineer of the defendants, when called as a witness for the plaintiff, and his testimony was directly opposed to any suggestion or inference of negligence. And apart from him, the only evidence having the slightest tendency to show defendants’ negligence consists of the opinions of experts, who suggest possibilities and theories to account for the movement of the elevator. These suggest causes which, if proven as facts, might be sufficient to present a question for tlie jury; but where, as here, plaintiffs proof of the cause of the elevator’s movement begins and ends in a theory, and the cause itself, is not proved, no definite theory or opinion being given as to exactly what occasioned such movement, a verdict founded upon such hypotheses and theories, in the absence of testimony to support them, cannot be sustained.

“ Whatever might have been the cause of death, it was for the plaintiff to show how it occurred. The burden of proof lay upon her to establish the liability of the defendants, and to do this she Was bound to show affirmatively, not only the absence of contributory negligence on the part of her intestate, but the negligence of the defendants in respect to some matter which caused the injury complained of.” (Per Ruger, Ch. J., in Dobbins v. Brown, 119 N. Y. 195.) As in that case, so it may be said here: “ Any inference that the accident happened in the manner suggested would, it seems to us, have been substituting conjecture for proof, and violated the rule requiring proof always to be made the basis of a recovery.”

We are of opinion, therefore, that the motion to dismiss the complaint should have been granted, and this necessitates that judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment reversed and new trial ordered, with costs to the appellants to abide event.


author: O’Brien, J.: ■ Yan Brunt, P. J.

text:
    Arthur J. Connelly, Respondent, v. The Manhattan Railway Company, Appellant.

      Actions for negligence — multiplicity of requests to charge — when an error in refusing a request, does not call for a reversal.

    After the trial court, in a civil action at law, has charged repeatedly the same proposition, the failure of the court to apprehend the exact proposition, or shade of the proposition, contained in a particular request, is not sufficient to require the reversal, for the second time, of a judgment which, in other respects, ia substantially correct, and which should be upheld.
    On the second trial of an action brought to recover damages from a New Yorl? ■city elevated railroad company for personal injuries received by a passenger in a collision on tlie day of the “great blizzard,” in March, 1888, the defendant, among other requests, asked the court to charge “that a railroad company is not bound to anticipate, or provide against storms of extraordinary and unusual violence, and such as have not within practical experience been known in the locality in which the railroad is operated;” the court answered: “I so charge;” adding, however, that “ the railroad and its servants and agents must exercise the care which is necessary under those circumstances to prevent accidents from occurring the defendant excepted to this qualification, and to . the refusal of the court to charge as requested.

      Held, that this refusal to charge, and the qualification by the court, was, in itself, ( error; but, that as substantially the same proposition as was involved in this request was contained in several other requests which were given, and as by the charge as a whole, the questions as to the defendant’s negligence and liability were fairly submitted to the jury, the error was to be deemed a harmless one, and that the judgment should not be reversed by reason thereof (Van Brunt, P. J., dissenting).
    Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 25th day of March, 1892, upon a verdict rendered at the New York Circuit, and from an order entered on the 28th day of March, 1892, denying the defendant’s motion for a new trial made upon the minutes.

      Samuel Blythe Rogers, for the appellant.

      Jacob Fromme, for the respondent.
   O’Brien, J.: ■

This action was brought for the personal injuries sustained by the plaintiff while a passenger on the defendant’s railway during what is known as the “ blizzard ” of March 12, 1888. ■ The injuries resulted from a collision of two trains upon the defendant’s elevated railroad at Seventy-sixth street and Third avenue.

By an amendment made at the first trial, the defendant admitted that the plaintiff was such passenger, and also admitted the collision, and further admitted that that admission, in and of itself, entitled the plaintiff to recover damages; .and the defendant still further then and there amended its answer by setting up the affirmative defense that the accident happened notwithstanding the exercise of the highest degree of care on the part of the defendant; that it was an unavoidable accident within the meaning of the law, and attributable to what is known in the law as an act of God, and could not be prevented by the exercise of that degree of care which the law required of the defendant under the circumstances existing at the time the accident happened.

Under the pleading as amended, together with its admission, it was only necessary for the plaintiff to prove as his case in chief the nature and extent of his injuries. The burden of proving the affirmative defense was on the defendant.

The first trial resulted in a verdict for the plaintiff for $10,000, which judgment was reversed by this court (one judge dissenting), upon the ground of error in the admission of a single question and answer, the judge writing the prevailing opinion, saying: “ There is evidence enough in this case to sustain the judgment, and I should be in favor of affirmance were it not for an error which, it seems to me, was committed * * * in the admission of testimony.” (60 Hun, 495.)

It is unnecessary to give all the facts appearing upon the second trial, the principal ones relied upon to sustain the burden assumed by the defendant of showing that this was an unavoidable accident, and those militating against this view presented by plaintiff, all suf, ficiently appearing in the opinions upon the former appeal. Again the plaintiff has been successful, and this time has succeeded in obtaining a verdict for $20,000, double the amount awarded by the jury upon the first trial.

Upon the merits, we concur with the view expressed in the opinions written-in this case upon the former appeal, that sufficient appears from the testimony to have justified the denial of the motion to dismiss the complaint, because upon the testimony it was clearly a question for the jury, and, as we shall see, the escape of the defendant from what, by the two verdicts rendered against it, would seemingly be the just consequences of its negligence, is attempted to be secured by again finding some error in the record sufficient to-justify a reversal of the judgment.

It is insisted that it was error to submit to the jury the question of whether the defendant should have operated its road at all on that day. This naked proposition was nowhere charged, and if we take the exact language of the learned trial judge, in connection with the context as it appears in the charge, we do not think that any exception to it will lie. He says : “ If they (meaning defendants) have established to you that by the action of the elements,, under the circumstances of the case, they not being guilty of any want of care, the accident happened, then I charge you they are entitled to a verdict. But you must take into consideration the day itself. It is for you to say whether, under all the circumstances, it was an exercise of proper care for them to have started that train at that particular time, and under those particular circumstances, or to have tried to bring it on under circumstances which were found to exist' when the train which collided with the plaintiff’s train approached the vicinity of Seventy-ninth or of Seventy-sixth street. I do not intimate any opinion upon the facts. If you find that, under all the circumstances of the case, the defendant had furnished proper appliances, proper engines and cars, and proper and competent employees, that this accident was caused without any negligence on the part of the defendant, but was due entirely to the storm and the elements, unaided by any negligence on the part of man, because that is the meaning of the act of God, if man’s agency intervenes, no accident can be attributed to the act of God alone — then it ,'s your duty to render a verdict in favor of the defendant. But if you believe, under all the circumstances of the case, and all the evidence before you, that the defendants or their servants were guilty of negligence in starting that train, or in the conduct of it, I charge you the plaintiff is entitled to recover, because then the defendant has not sustained the propositions which it has advanced in the amended answer.”

Considering the questions which were to be submitted to the jury, involving not only the conditions under which the train was started from Harlem, but also those under which it was started from Eighty-fourth street, with instructions “ to skip the Seventy-sixth street station,” it will be seen that the court was right in its charge, when it is read in the light of the facts appearing upon the trial.

Another error assigned is said to be the admission to the jury of the question whether the' failure to set the hand brakes caused the accident, it being claimed by defendant that the uncontradicted evidence shows that that could not have possibly been the cause. The evidence upon this subject may be as conclusive in defendant’s favor as claimed, still the form of the request will show that the court was justified in not charging it.- ,The request was in these words: “ That if the power brakes were applied properly, the train brake would not add to the retarding force, and any omission to put on the train brake in that case would not constitute negligence.”

Undoubtedly, if the power brakes were properly applied, nothing Would he gained by the application of the hand brakes. But there was testimony in the case showing that the wheels themselves might, by reason of the snow and ice clinging thereto, have been rendered irresponsive to such power brakes; and it was no doubt for this, or .some similar reason, that the engineer, out of abundant caution, whistled just prior to the accident for the hand brakes. We think that the trial judge was justified in refusing to charge the proposition in the form in which it was presented, and say that it was a question of fact for the jury.

Error is also assigned for the refusal of the court to charge, at defendant’s request, that “ if the brakes and appliances for stopping the train were properly applied at a distance from the .first train, always before found sufficient to stop a train under the most adverse conditions known in the operation of that line of railway, the defendant is not liable.”

The judge was justified in refusing to charge this proposition, because it was tantamount to saying that the whole theory of plaintiffs case was predicated upon negligence of the defendant in the handling of the brakes and appliances for stopping the train; but, as said by Mr. Justice Barrett, upon the former appeal: The defendant seems to think that its responsibility rested solely upon the manner in which the colliding train was run. But it was also called upon to exercise due care (regard being had, of course, to the exceptional circumstances with which it was dealing) in the dispatch and movements of its trains. Then as to the running of the colliding train, we think it was for the jury to. say whether the engineers did their full duty in the premises.”

We have now disposed of every question which the appellant invokes for the purpose of obtaining a reversal of this judgment, except two, which require more serious consideration. One relates to the refusal of the learned trial judge to charge a request of the defendant, and the other to the amount of damages.

To appreciate fully the force of the exception as to tlie request refused, those immediately preceding and following it should be considered as they appear in the record, viz.:

“ ‘ 4. In order to hold a railroad company liable for an injury, the plaintiff must prove that the injury resulted from the failure of the company to perform some duty which it should have performed in the circumstances under which it was placed.’

“ The Court.— I so charge.

“ ‘ 5. A railroad company is not liable for the unexpected results produced by the elements, which results it could not be expected to foresee.’

“ The Court.— I so charge.

6. The defendant is not liable for injuries arising from violence of the elements which could not be guarded against by one using due care.’

“ The Court.— I so charge.

“£ 7. It was the duty of the defendant to run its trains when the accident happened, unless, when it attempted to run them, accidents could have been foreseen by a person of due prudence.’

“ The Court.— I so charge.

££ Counsel for the defendant also requested the court to charge the ,Fry:

“ ‘ 8. A railroad company is not bound to anticipate or provide against storms of extraordinary and unusual violence, and such as have not, within practical experience, been known in the locality in which the railroad is operated.’

“The Court.— I so charge, adding, however, that the railroad and its servants and agents must exercise the care which is necessary under those circumstances to prevent accidents from occurring.

Counsel for the defendant excepted to the qualification of the charge by the court, and to the refusal of the court to charge as requested.

“£ 9. If the jury find that the tracks, brakes and all the appliances used by the defendant were the best known for their purpose, and that the trains were operated with due care, and that in spite of such appliances and care the collision occurred owing to the slippery condition of the tracks, or otherwise, the defendant is not liable for the accident.’

“ The Court.— I so charge.”

The refusal to charge and the qualification by the court of the eighth request was error, and was no doubt the result of a failure to apprehend the exact and precise proposition which had been requested by the defendant. That this is not to be wondered at becomes apparent when we examine this record and see that, in spite of a clear, fair and exhaustive charge, covering all the questions to which the j ury’s attention should properly have been called, the defendant thereafter submitted twenty-eight requests, “ which repeated in difference forms and with a varied verbiage substantially the same proposition.” Thus substantially the same proposition as involved in the eighth request was contained in the fourth, fifth, sixth and ninth requests, as shown by the record.

The question thus presented is, whether, after having charged repeatedly the same proposition, the failure of the court to apprehend the exact proposition or shade of the proposition contained in a particular request is sufficient for the second time to reverse a judgment which in other respects is substantially correct and should be upheld. We think it would be sacrificing form to substance to so hold, and that only hy a stretch of the imagination can it be held that the failure to charge this exact proposition resulted in injury to the defendant. This case, upon two separate trials, has already occupied many days, and has twice resulted in the same conclusion in favor of the plaintiff and against the defendant. And the manner in which it was tried upon this second trial justifies the inference that, conscious and fearful of the result, every opportunity was taken by defendant to note exceptions to the admissibility and rejection of evidence, and finally to submit a great number of requests, in the hope that thereon an exception could be hung sufficient to reverse the judgment, if the damages awarded were beyond the amount which according to the defendant’s ideas seemed proper.

We have often felt, and this case furnishes a good illustration, that the submission of numerous requests, each with just a slight shade of difference, was never intended, by those who resort thereto, as an aid, but rather designed to confuse the court and jury. They may be justly characterized as a delusion and a snare ” — a delusion so far as the jury are concerned, and a snare with which to entrap the trial judge. Tims, with respect to a request already referred to, as to the brakes and appliances for stopping the train being applied at a distance before that túne found sufficient to stop a train under the most adverse conditions known in the operation of that line of railway — the defendant haying excepted to the refusal ■of the court to charge in the exact language, and to the qualification of the charge as' made by the court, this same request was repeated with the distance specified as “twice as great as heretofore found sufficient,” and as three times as great, the distance in feet being specified as 310 feet, 500 feet and Y00 feet'respectively.

It is thus apparent that these requests were not designed in aid of justice, or for the purpose of introducing clearness, but rather confusion, and thus prepare the way for an inadvertent mistake upon the part of the trial judge in failing to apprehend each particular shading of the same proposition. To hold that such failure in a single instance would necessitate a retrial of a case that has already been twice tried, occupying many days of the time of the court, witnesses and jurors, would be a travesty on justice, and, as already said, would be sacrificing substance to form and should not be sanctioned. In a criminal case, regardless of exceptions, it is within the province of an appellate court to do what substantial justice requires, and the Code makes express provision for disregarding errors in equity causes which do not result in injury to the party against whom they are made. A different ride has always been applied to actions at law, requiring that it must clearly appear that such error did not injure the party, or else the judgment for such error must be reversed.

We have examined this record, and regard being had to the number of times the jury were instructed, not only in the original charge, but in the separate requests presented by the defendant, that the railroad was not liable unless failure to perform some duty was proven, and that the mere fact that the 'accident had happened was no reason for holding the defendant liable, and in view of the statement charged in the sixth request, that •“ the defendant is not liable for injuries arising from violence of the elements which could not be guarded against by one using due care; ” to conclude that the jury were affected by the qualification inadvertently made by the judge would be to place undue stress upon what must necessarily have been, taking the connection in which it was made, a harmless error, and would subject an action like this to the test of innumerable trials before a result could ever be reached, if defendant in every subsequent trial will but resort to the same plan, with a view to introduce confusion, and dig pitfalls in the shape of a great number of requests into one of which it may reasonably hope that the trial judge will fall.

Taking the entire charge, and the many ways in which the jury were instructed as to the proof necessary to establish the defendant’s negligence and entitle plaintiff to recover, there is not the slightest possibility that they were in any way misled, or that the defendant was in any way injured by the failure to charge the eignth request in the exact language in which it was submitted, or by the qualification made thereto by the trial judge. And we are of opinion that the judgment should not for this single error, which is one of form and not of substance, be reversed.

The other serious question is that relating to the amount of damages. We think regard being had to the evidence as to the character of the injuries and the amount of pecuniary loss suffered by plaintiff, that the verdict was greater than should have been awarded, and that the amount upon the former trial was more nearly compensatory. The plaintiff, however, has been subjected to the expense and delay of a second trial, and this, together with the other facts and circumstances appearing, would justify a verdict of $12,500.

Our conclusion, therefore, is that the judgment should be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff will stipulate to reduce the verdict to $12,500, upon which amount he would be entitled to his allowance and costs'; and if so modified it should be affirmed, with costs and disbursements.

Eollett, J., concurred.

Yan Brunt, P. J.

(dissenting):

This action was brought to recover damages for personal injuries-received by the plaintiff while a passenger on one of the defendant’s trains. The injury resulted from the collision of two trains on the-defendant’s road at Seventy-sixth street and Third avenue, on the-12th of March, 1888, which collision it was claimed was caused by the negligence of the defendant.

The defendant by its. answer admitted that the plaintiff was injured, and also admitted the collision, and set up the affirmative defense that the accident was unavoidable, and was attributable to what is known in the law as the act of God, and could not be prevented by the exercise of that degree of care which the law required of the defendant under the circumstances existing at the time the accident happened.

Without considering the evidence in detail it is sufficient to say that the collision occurred during the great storm of March 12,1888, and it was claimed upon the part of the defendant that its appliances were in perfect order, but that in consequence of the condition of the tracks caused by the severity of the storm, the train could not be stopped by the brakes, and the collision thus resulted without any fault or negligence upon its part.

Evidence was offered upon the issues presented by the pleadings upon both sides, and the case submitted to the jury, who rendered a verdict in favor of the plaintiff. And from the judgment thereupon entered, and from an order denying a motion for a new trial, this appeal is' taken.

. In the disposition of this appeal it has not been deemed necessary to state in detail the evidence which has been introduced upon both sides during the progress of the trial, nor the various facts which it is claimed were established by such evidence, as the result would seem to depend upon a single exception to the charge of the learned court.

The court charged at the request of the defendant that the mere fact that an accident happened did hot entitle the plaintiff to recover damages; and that a railway company is not an insurer of the lives, or safety of the passengers on its trains; and that it was not the duty of the company to make accidents impossible; and that in order to render the company liable for an injury, the plaintiff must prove that the injury resulted from the failure of the company to perform some duty which it should have performed under the circumstances under which. it was placed; that a railroad company is not liable for the unexpected results produced by the elements, which results it could not be expected to foresee; and that the defendant was not hable for injuries arising from the violence of the elements which could not be guarded against by one .using due care; and that it was the duty of the defendant to run its trains when the accident happened, unless when it attempted to run them, accidents could have been foreseen by a person of due prudence.

The counsel also requested the court to charge as follows: “ A railroad company is not bound to anticipate or provide against storms of sxtraordinary and unusual violence, and such as have not within practical experience been known in the locality in which the road is operated.” To this request the court said: “I so charge,” adding, however, that “ the road and its servants and agents must exercise the care necessary under those circumstances to prevent accidents from occurring.” The counsel for the defendant duly excepted to this qualification of the charge, and to the refusal of the court to charge as requested.

This seems to have been clearly error, because the qualification made by the court made the railroad company insurers of the lives and safety of the passengers on its trains. It is charged that the company must exercise the care which is necessary under these circumstances, to jprmmt accidents from occurring, which entirely nullified the words of the request, and imposed not only the duty of using due diligence in preventing accidents, but of using 'such care as would absolutely prevent accidents from happening, no matter from what cause, even if such accidents arose from the existence of extraordinary and unusual circumstances, which no person of due prudence could have anticipated.

The only question is, whether the court, by charging the subsequent requests of the defendant, without in any way adverting to •the charge already made, remedied the evil.

The court subsequently charged, at the request of the defendant, that if the jury found that the tracks, brakes and all the other appliances used by the defendants were the best known for the purpose, and that the trains were operated with due care, and that in spite of such appliances and care, the collision occurred, owing to the slippery condition of the track, or otherwise, the defendant is not liable; also, that the defendant was not required to take such precautions to prevent the accident as it was apparent after the accident would have prevented it, but only such due care as would be demanded of one operating the trains who did not know that the accident would happen.

It is clear that the court had in mind the true measure of liability, and that the jury were instructed with all the liberality towards the defendants that they had a right to ask. But, unfortunately, this proposition, excepted to by the defendants, that they were bound to use such care as would, Tinder extraordinary and unforseen circumstances, absolutely prevent accidents, gave to the jury an erroneous-rule. And it is impossible for the court to determine as to whether, in arriving at the conclusion which they reached, they held the defendants liable because of the erroneous rule laid down for their guidance, or because of the correct rule which both preceded and followed that which was erroneous.

Much as we regret to direct a new trial in this case, after a second trial has been had, we see no other alternative, in view of the error which was unfortunately committed by the learned justice presiding at the trial. The confusion undoubtedly arose from the multiplicity of requests which were presented to him at the time of the charge, and which repeated in different forms and a varied verbiage substantially the same proposition.

The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellants to abide the event.

Judgment modified as directed in opinion, and as modified, affirmed, with costs and disbursements.


author: O’Brien, J.: Follett, J.

text:
    Stella Stafford, Respondent, v. The Morning Journal Association, Appellant.

      Libel — evidence of plaintiff ’s good character — newspaper advertisement — knowledge by publisher — issue as to good faith in the publication-,— evidence to shorn how the publication was understood — absence of witness explained.

    The admission, on the trial of an action brought to recover damages for the publication of a libel, of evidence of the plaintiff's good character and reputation, in the absence of any testimony to the contrary, even if superfluous and immaterial, is harmless, and does not call for the reversal of a j udgment (FOllett, J., dissenting).
    On the trial of such an action, the column of the newspaper in which the article appeared in the form of an advertisement, may be given in evidence as tending to characterize the publication.

      When the question of the good or bad faith with which a libelous article, in the form of an advertisement, was published in a newspaper is at issue, evidence tending to show notice or knowledge on the part of the editor and manager of the paper, of the character of advertisements in the column in which the article in question appeared, is competent as bearing on that issue.
    On the trial of such an action, brought by a woman, evidence of insulting letters received by her, and of visits by men to her residence at night, subsequent to the publication of the libelous article, may be competent, although no special damage on that ground is alleged in the complaint, to show in what sense the publication was understood by persons who so annoyed or insulted the plaintiff.
    The publication of the following article in a newspaper, as an advertisement in a column headed “Astrology,” held, libelous per se: “Le Huray Sisters, Blanche, Stella and Allien, just from Paris; massage, French style; love secrets; how to get a husband; enclose stamp ; valuable information for ladies by aid of cards. Le Huray Sisters, 444 Snd Ave., Mount Vernon, H. Y."
    On the trial, it appeared that the libelous advertisement was inserted in the defendant’s newspaper by a relative of the plaintiff; this relative was not present at the trial, and the plaintiff was permitted to put in evidence an inquisition and adjudication that the relative was a lunatic, made some months after the publication.

      Held, that, if such evidence were not competent to show that the relative was insane at the time of the publication, for the purpose of rebutting any inference that the insertion of the advertisement by him was authorized by the plaintiff, it was admissible for the purpose of explaining why he was not produced as a witness for the plaintiff.
    Appeal by the defendant, the Morning Journal Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on, the 25th day of November, 1892, and from an order entered on’the same day, denying the defendant’s motion for a new trial made upon the minutes.

      B. JR. JRvnstein, for the appellant. .

      Roger JMJ. Sherman, for the respondent.
   O’Brien, J.:

The action was brought to recover damages for the publication in the Mornvng Journal of an article complained of as libelous and which reads as follows :

“ Le Huray Sisters, Blanche, Stella and Allien, just from Paris; massage, French style; love secrets; how to get a husband; enclose stamp ; valuable information for ladies by aid of cards. Le Huray Sisters, 444 2nd Ave., Mount Yernon, N. Y.”

The defendant did not in its answer or on the trial claim that this was in any sense a privileged communication, nor did it attempt to justify, but'set up and proved in mitigation, that the matter was published as an advertisement received from a general advertising agency in the regular course of its business, and under the honest belief that it was authorized by the plaintiff; and when it was informed by plaintiff’s husband that it was unauthorized by her, it at once offered to publish any retraction or explanation or correction, in the columns of its newspaper, which offer was declined. The trial resulted in a verdict- for $10,000, and all the questions presented upon this appeal relate to exceptions taken to the admission or exclusion of evidence and to requests to charge proposed by plaintiff, and to refusals to charge as requested by defendant.

It is not claimed that the verdict is so large as to indicate that the jury were influenced by passion, partiality, prejudice or corruption ; and having in mind the rule -that damages in cases of this kind are largely within the discretion of the jury, and regard being had to the nature of the libel, we do not _ think that we should distux-b such verdict upon the ground that the damages awarded were excessive.

The first exception ui-ged is the permitting evidence to be given of the general reputation of the plaintiff for chastity and virtue. The complaint alleged that plaintiff was of “ good character and repute, and enjoyed the respect of her friends and acquaintances and of the community.”

Tiie answer stated that the defendant had “no knowledge or infox-mation sufficient to form a belief as to the allegations contained in the first paragraph of said complaint.”

Notwithstanding the issue thus presented, it is claimed that the evidence given by plaintiff in support thereof should not have been received; that this, being a supex-fluous and immaterial allegation, invited tlxe denial which was equally immatex-ial, thus rendex-ing the issue itself immatei’ial with x-espect to which the evidence could not have been received. "We do not regard it as entirely clear that plaintiff was bound to rest xxpon the legal presumption as to her good charactex-, in view. of the issue thus x-aised, bxxt if we assume that the- appellant is x-ight and that the issue was a superfluous and immaterial one, no injury resixlted to the defendant from such proof, because apart from any testimony, the plaintiff would hare been entitled to have the court charge that the law presumed her good character, in the absence of any claim or testimony to the contrary, Was established; and we have been referred to no case wherein a judgment has been disturbed in admitting evidence in support of a fact which the law presumed.

The next excejition relates to questions asked of plaintiff upon her re-direct examination, directed to eliciting information as to whether or not her mother had succeeded in getting rid of the lease of the house in Mt. Vernon, and what difficulty was experienced in finding a place for the sister. It is true that neither the mother nor sisters were parties to this action, but when we consider the justification afforded by the defendant for such testimony, we do not think that it can be regarded as a violation of the discretion vested in the court, in extending somewhat the scope of plaintiff’s testimony. The defendant had indulged in a cross-examination, which was directed to discrediting the plaintiff’s testimony relevant to her sufferings from the publication, by showing that thereafter she continued to reside at the place mentioned in the advertisement. We think that the inference thus sought to be raised against the plaintiff it was proper to rebut on re-direct, by allowing plaintiff to state the ■efforts which her mother had made to remove therefrom, and the impediments, among other things the sister’s sickness, which delayed such removal.

The third exception relates to the introduction of the column in the defendant’s paper headed “ Astrology,” and in which column the libelous advertisement, referring to jfiaintiff, was published. This exception we regard as untenable, for as said in Kingsbury v. Bradstreet Company (116 N. Y. 215): “ The situation and surroundings of the most innocent expression may make it libelous, but they must be distinctly alleged and proved. The mere position in a newspaper of an advertisement apparently inoffensive, but surrounded by suggestive items, may make it a question for the jury Whether it is libelous or not.” The next exceptions to be considered are directed to evidence relating to the connection of Albert Pulitzer with the defendant. Such evidence tended to show that he was the editor and manager of its property and assets, and was empowered to determine what advertisements should go in or stay out; that the' character of advertisements similar to those published under the head of “ Astrology ” was called to his attention, and that he refused to exclude them from the paper. Also, that prior publications, substantially in the same form, appeared in the “ Astrology Column,” for which a higher rate was charged than for other kinds of advertisements.

Where, as here, the question of the good or bad faith with which a libelous article was published was at issue, the bearing that notice or knowledge of the character of such advertisement would have thereon, rendered, we think, such testimony competent.

The next exception relates to the excluding of certain questions asked by defendant on recalling plaintiff as to what her husband told her as to his object in going to the office of the Morning Journal. Considering the order of proof, which is always in the discretion of the court, and the absence of any good argument advanced for holding the plaintiff bound by her husband’s conduct, or by the object which he had in view in visiting the office of the defendant, wé do not think that the excluding of such evidence was error.

The next exception relates to testimony admitted of letters of an insulting character, received by the plaintiff, and also of visits made by men in the night-time to plaintiff’s residence. It is true that no Special damage upon this ground was alleged in the complaint, but we think it was competent to show in what sense the publication was understood by persons who, either by sending letters or making Untimely visits in the night, annoyed and insulted the plaintiff.

The defendant, upon the close • of plaintiff’s case, moved to dismiss the complaint, and again, at the close of all the .testimony, .asked for a direction of a verdict in its favor upon the ground that the article was not libelous %>er se. We think that the denial of both these motions was right, and in view of the very satisfactory discussion of all the questions involved upon both motions, to be found in several recent cases in the Court of Appeals upon the subject of libel, we deem further discussion unnecessary. (Moore v. Francis, 121 N. Y. 203; Moore v. The Morning Journal Association, 123 id. 211; Hughes v. Jones, 116 id. 67, and Warner v. The Press Publishing Company, 132 id. 181.)

In addition to these exceptions which we have thus briefly referred to, a great number are presented by the refusals to charge as requested by the defendant, and to exceptions taken to- requests as made by the plaintiff. These we have considered and fail to find that any error was committed in the rulings of the trial judge, who not only passed upon an unusual number of requests presented by defendant, but in a fair and impartial charge presented every question in a manner as favorable as defendant could legally demand. The most serious exception urged upon our attention is that relating to the admissibility of the inquisition and adjudication that one George M. Storrs was a lunatic. It was shown that this man, who was the husband of plaintiff’s sister, was responsible for the insertion of the libelous advertisement. ITis relation to the plaintiff, had he not been produced, would naturally have been commented upon unfavorably, and we do not understand that the appellant contends that it was incompetent to show that at the time he presented the advertisement he was a lunatic, thus rebutting any inference that it was authorized in any way by plaintiff. The claim, as we understand it, is that the acts of Storrs given in evidence, were prior to April, 1890, while the inquisition and adjudication that he was of unsound mind were in January, 1891.' The record shows that the commissioners to inquire as to whether Storrs was of unsound mind and with respect to other matters were appointed by orders of this court, entered July 10 and 14,1890, some few months subsequent to the publication. It may be that such a record is n.ot even presumptive evidence that Storrs was of unsound mind at the time he was guilty of the acts given in evidence, but upon another ground, namely, to show the reason for the failure to produce Storrs as a witness for plaintiff, we think it was competent.

Upon examining the entire case we fail to find any error sufficient. to justify our interfering with the verdict, and are, therefore, of the opinion that the judgment should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Follett, J.

(dissenting):

I think this judgment is a meritorious one and would like to see it sustained, but am unable to concur in its affirmance, for the reason that I think the court erred in receiving evidence of the plaintiff’s good character, it not having been assailed by the defendant. (Houghtaling v. Kelderhouse, 2 Barb. 149; affd., 1 N. Y. 530; Pratt v. Andrews, 4 N. Y. 493; Pink v. Catanich, 51 Cal. 420; Matthews v. Huntley, 9 N. H. 146; 1 Whart. Ev. § 47, and cases there cited; 1 Taylor’s Ev. [8th Eng. ed.] § 362.)

In an action to recover damages caused by the publication of a libel, an allegation in the complaint that the plaintiff’s character is good and a denial thereof in the answer does not raise a material issue. (Chapman v. Pickersgill, 2 Wils. 145-147; 1 Chit. Pld. [16th Am. ed.] 243; Moak’s Van. Sant. Pldgs. 37, 255; Townsh. S. & L. [4th ed.] §§ 313, 314.)

A plaintiff idoes not become entitled to support by evidence an immaterial allegation which he has alleged in the comjflaint, because the defendant has chosen to deny it. The first fault was the plaintiff’s in tendering the issue. (Murray v. N. Y. Life Ins. Co., 85 N. Y. 236; Pink v. Catanich, supra; Abb. Tr. Brief Pldgs. § 734.)

I agree that the reception of evidence of certain facts which the law presumes to exist, would not be error. For example, if a plaintiff should allege that the Supreme Court had jurisdiction to render a particular judgment, evidence that it did have, though unnecessary, would not be a sufficient ground for reversing a judgment. And so it would be in regard to many facts which the law presumes to exist. But this is an action sounding in damages, which are largely in the discretion of the jury, and evidence that the plaintiff’s character was good, would tend to greatly increase them. More than this, the plaintiff was a witness in her own behalf and evidence of good character would increase her credit with the jury.

The law presumes that witnesses are of good .character, nevertheless it would be error for a party to show that the witnesses which he was about to call were of good character or that witnesses that he had called were of good character unless they had been assailed by his adversary.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


text:
    Jacob C. Schuyler, Respondent, v. Hamilton Busbey and Another, Appellants.

      Newspaper libel — privilege, absolute or conditional — malice, actual and presumed — questions for submission to the jury.

    When, in an action brought to recover damages for the publication of a libelous article in a newspaper, the evidence shows that the publication was made without examination or inquiry, and the only excuse advanced by the defendant is that the article was absolutely or conditionally privileged and was published in good faith, without an intention to injure the plaintiff, on the assumption, without inquiry, that it was true, it is not error for the trial court to refuse to instruct the jury to find a verdict for the defendant, on the theory that the publication was absolutely privileged, or to refuse to instruct them to find a verdict for the defendant unless they were satisfied that the publication was malicious, on the theory that the publication was conditionally privileged.

      Semble, that a newspaper is not justified in publishing false, libelous and defamatory matter concerning a person, published regardless of the injury that it may do to the person unjustly defamed, without inquiry, or taking any means to ascertain the truth thereof, and in thereafter claiming that the same is privileged because received from a correspondent.
    In case of the publication of a libel, the question of actual malice is to be submitted to the jury only where the question of an absolute or qualified privilege is present, and where, in order to recover, the plaintiff is obliged to prove actual malice; where such question of privilege is not present malice is presumed, and proof by the defendant of no actual malice does not present an issue of fact for the consideration of the jury upon which the plaintiff, in order to recover, must sustain the burden of showing actual malice, though the absence of such malice may be considered in mitigation of damages.
    Appeal by-the defendants, Hamilton Busbey and Leslie C. Bruce, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the cleric of the city and county of New York on the 5th day of December, 1892, upon a verdict for $2,500 rendered at the New York Circuit, and from an order made and entered on the 6th day of December, 1892, denying the defendants’ motion for a new trial made upon the minutes.
    The action was brought to recover damages for a libelous article published in the defendants’ newspaper.

      IT. M.' Whitehead, for the appellants.

      Be Witt O. Brown, for the respondent.
   O’Brien, J.:

The defendants were publishers of a weekly newspaper in this city, known as the Turf & Field & Farm, which was devoted to field sports, bench shows, public discussions in reference to dogs, breeding of horses, and other kindred subjects. The plaintiff was, at the time of the publication complained of, engaged in business as a trainer of sporting dogs in the State of Yirginia. On December 1 i, 1888, the defendants published a communication received from one of their correspondents, headed, “ A ICennel to Avoid,” which among other things contained the following statement:

“We have in my county a man by the name of Jacob O. Schuyler, hailing from Lehistown, Pa., and who has established what he terms a training kennel, and with a great flourish claiming the name for it as The Tammany Training Kennels, by Professor Schuyler.’ Upon my honor as a man and my character and reputation as a sportsman, I denounce this man as a consummate and unmitigated humbug, and his kennel as a pesthouse, from which the dogs are weekly dragged out to rot upon the highway.

He has several dogs of his own, which he obtained fraudulently, upon whom he lavishes all his attention, care and feed, while those of his customers are left to starve, to languish and die. If the statutes of our State recognized dogs as property, I could convict him of offenses which would send him to the penitentiary in forty-eight hours.

His terms- are so much money down, $15 or $20, and then so much per month. He receives his first payment and that is pretty generally the last of the dog, though in several instances the fact has reached my ears that he continued to receive the monthly payments months after the dog was dead and forgotten.”

This publication the plaintiff alleged was made concerning him in connection with his business and was a “ false, scandalous, malicious and defamatory article.” The answer admitted the publication and the falsity, but denied that it was scandalous, malicious and defamatory, and by way of defense and in mitigation of damages alleged that the communication was received from a person with whom they had been in correspondence for more than twenty years, on whom they had a right to rely; that they published the same in good faith, believing it to be true, and that on their attention being called to it by the plaintiff, ample opportunity was afforded him through the columns of the paper to rectify whatever injury was done by the publication, and that in pursuance of this permission the defendant used the columns of the paper, presenting testimonials and letters from many persons testifying to his good character and to his business ability.

During the progress of the trial the plaintiff was asked what became of his business after the publication. He had begun his answer when he was interrupted by the objection of the defendants, that there was no allegation in the complaint that the publication was false, and upon the further ground that, as the business was one relating to dogs and the training of dogs, which at common law were not deemed to be property, that with respect to that business one could not be libelled. The court in sustaining the objection said:

“As to the first ground it is neither necessary to plead nor prove special damages, inasmuch as this is *a case in which exemplary damages would necessarily follow unless the libel was excused or justified. Eor that reason I do not think it necessary to go into this proof. I think it is immaterial, and that it is sufficient to dispose of the objection.”

Although the ruling was in the defendants’ favor, they excepted thereto, and upon this appeal claim that they were injured by the statement of the reasons given by the court in ruling in their favor. It is conceded by the defendants that if there was any error in this statement of the ¿aw, it was subsequently cured by the charge of the court in submitting the case to the jury, and we fail to see, under those circumstances, how the defendants can avail themselves of the exception taken to a ruling or tbe judge’s reasons therefor in their own favor.' Counsel also is mistaken in his position that the complaint did not allege that the article was false, because, as we have already said, it was specifically stated therein to have been false, and this allegation of falsity was not denied by the answer.

No other exceptions were taken to the ruling of the court upon the evidence, and all the other questions raised are those presented by an exception to one statement of the judge and refusals on the part of the judge to charge certain requests presented by the defendants, many of which, relating as they do to the sam§ subject-matter, may be grouped and disposed of together.

It is insisted that the publication was either absolutely or conditionally privileged, and upon the theory that the evidence justified the court in holding that it was absolutely privileged, that it was error to refuse to instruct the jury that they must find a verdict in favor of the defendants, and that, though the evidence may not have gone to the extent of showing that it was absolutely privileged, there being no question but that it was conditionally privileged, the court was bound to instruct the jury to find a verdict in favor of the defendants unless they were satisfied that the publication on the latter’s part was malicious.

We do not think either, of these positions is sound. As remarked in Klinck v. Colby (46 N. Y. 431): As a general proposition it may he said that the question of whether a publication is a privileged communication is one for the jury. That is to say, the court may determine whether the subject-matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it, are such as to furnish the excuse.”

This view is not at variance with the rule laid down by text-writers that it is the province of the judge to decide whether a communication is privileged or not when the facts are undisputed. If, therefore, although the defendant alleges that he acted under an honest sense of duty, the judge can see no evidence of any circumstances raising such a duty, he should rule that Uo pi'ima facie case of privilege has been established.” (Odger’s Law of Libel & Slander [2d ed.], 216.)

The evidence here showed that without examination or inquiry the publication was made, and the only excuse advanced was that it was published in good faith without an intention to injure the plaintiff, on the assumption, without inquiry, that it was true.

In Moore v. Francis (121 N. Y. 207), what was said with respect to such an excuse will apply here : The evidence renders it clear that no actual injury to the plaintiff was intended by the defendants, but it is not a legal excuse that defamatory matter was published accidentally or inadvertently, or with good motives, or in an honest belief in its truth.” We have been referred to no authority, nor do we think that one can be produced, going to the length of holding that a newspaper is justified in publishing false, libelous and defamatory matter concerning a, person, without inquiry or taking any means to ascertain the truth thereof, and thereafter claiming that the same is privileged because received from a correspondent and published regardless of the injury that it may do to the one unjustly defamed and injured.

Moore v. Francis (supra) is also authority for the proposition that, in actions for libel, where the publication is admitted, and the words ai-e unambiguous and admit of but one sense, the question as to whether they are libelous is one of law, which the court must decide; ” and that it is only where the publication is privileged that the burden is upon the plaintiff to show the existence of express malice in the publication of it; that otherwise no proof of malice is needed in- the first instance. While, therefore, privilege rebuts the presumption of malice and shifts the burden so as to require proof of actual malice, it does not from this follow that, in a case where the publication is not shown to have been privileged, the defendants can entirely escape the results or consequences of a libel by showing that there was no actual malice present. A failure to note the distinction and appreciate the difference between malice presumed and actual malice as related to libel is very apt to produce confusion.

In Lewis & Herrick v. Chapman (16 N. Y. 372), it is said: Malice is essential to every action for libel. It has been sometimes divided into legal malice, or malice in law, and actual malice, or malice in fact. These terms might seem to imply that the two kinds of malice are different in their nature. The true distinction, however, is not in the malice itself, but simply in the evidence by which it is established. In all ordinary cases, if the charge or imputation complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law in such cases does not impute malice not existing in fact, but presumes a malicious motive for making a charge which is both false and injurious, when no other motive appears. Where, however, the circumstances show that the defendant may reasonably be supposed to have had a just and worthy motive for making a charge, then the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence. It is actual malice in either case. The proof only is different.”

This statement, particularly that portion which says that “ it is actual malice in either case,” is hardly exact. A more correct statement of the rule as to malice and itk bearing upon actions for libel, is to be found in the dissenting opinion in the case of Samuels v. Evening Mail Association (9 Hun, 294),- which was adopted by the Court of Appeals in disposing of that case, in 75 N. Y. 604. As therein said : The plaintiff in an action of libel gives evidence of malice whenever he proves the falsity of the libel. It becomes then a question for the jury whether the malice is of such a character as to call for exemplary or punitive damages, and that question is not to be taken away from the jury because the defendant gives evidence which tends to show that there was in fact no' actual malice. "When he gives no such evidence, it is the duty of the court to say to the jury that upon proof of the falsity of the libel the plaintiff is entitled to exemplary damages, in their discretion ” (citing cases). But where he gives evidence tending to prove the absence of actual malice, then it is the duty of the judge to submit to the jury the question as one of fact, whether such malice existed in the publication.”

This same view is well expressed by Odger on Libel and Slander (p. 3, 2d ed.), wherein it is said: “ The intention or motive with which the words were employed is, as a rule, immaterial. If the defendant has in fact injured the plaintiff’s reputation, he is liable, although he did not intend so to do, and had no such purpose in his mind when he spoke or wrote the words. Every man must be presumed to intend and know the natural ordinary consequences of his acts; and this presumption (if, indeed, it is ever rebuttable) is not rebutted merely by proof that at the time he uttered or published the words the defendant did not attend to nor think of their natural or probable consequences, or hoped or expected that those consequences would not follow. Such proof can only go to mitigate the damages.” The author, Odger, in support of this view, quotes from Lord Bramwell, in Abrath v. Northeastern Ry. Co. (11 App. Cas. 253, 254; 55 L. J. [Q. B.] 455; 55 L. T. 65), as follows: “ That unfortunate word c malice ’ has got into cases of actions for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. Therefore, the case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication, he would be liable, although he had not a particle of malice against the man.” But a plaintiff may, for the purpose of enhancing his damages, allege and prove that the defendant made the publication by reason of personal ill-will towards the plaintiff. This is particular, not general, malice, which is what the law presumes.

As already said, therefore, the question of actual malice is to be submitted only in those cases where the question of an absolute or qualified privilege is present, and where, in order to recover, the plaintiff is obliged to prove actual malice. In other cases it is presumed, and proof by defendants of no actual malice does not present an issue of fact for the consideration of the jury upon which the plaintiff in order to recover must sustain the burden of showing actual malice, though it is proper that absence of such malice may be considered in mitigation of damages.

This view, we think, is supported by the ease of Moore v. Francis (supra) which holds (head-note) that “ words written or spoken of a man in relation to his business or occupation which will have a tendency to hurt or are calculated to prejudice him therein, are actionable, although they charge no fraud or dishonesty, and were uttered without actual malice; and when proved, unless the defendant shows a lawful excuse, the plaintiff is entitled to recover, without allegation or proof of special damage, as both the falsity of the words and resulting damage are presumed.”

The numerous requests made in regard to the measure of damages were properly refused by the court. Many of them were abstract propositions of law, in no way applicable to the case at bar, and many of them were repetitions of propositions already charged by the court, and some again were propositions of what counsel thought the law ought to be, and not what the law is. The testimony adduced on behalf of the defendants as to the circumstances under which the publication was received, and the absence of any feeling towards the plaintiff or bad faith in the publication, and the opportunity afforded to repair the damage done by inserting in the columns of the paper in its subsequent issues, testimonials and certificates from those who knew the plaintiff; certifying to his character, was all dwelt upon by the judge in his charge and submitted to the jury as facts to be taken into consideration upon the question of mitigation of damages. And the court was not called upon, nor was it bound, to charge over again separately as to each particular piece of evidence, op on each particular subject, when it had once cleaPy and explicitly charged, as favorably, as the defendants had a right to expect, the very same propositions.

Upon an examination of the entire record, therefore, and the many questions presented by these requests, we fail to see that any error sufficient to authorize a reversal of the judgment was committed, either upon the question of the defendants’ liability for the publication or the extent of the damages for which they were liable by reason thereof. Nor do we think, considering the character of the publication, that the damages awarded can be regarded as so excessive as to justify our interfering with the verdict of the jury.

We are of opinion, therefore, that the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Eollett, J., concurred.

Judgment affirmed, with costs.