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it to him; that the plaintiff procured the note to be discounted, had the money placed to his own credit, and on the same day drew it. Plaintiff, in answer, testified that he indorsed the note, and procured it to be discounted, at the request of the maker, and gave the proceeds to him. Other evidence was given to the same effect.' It is apparent, therefore, that to some extent, at least, the plaintiff was corroborated. How fully, the report of the case does not inform us, but it appears from the statement of the case that it was in substantial respects. The court held there was no question for the jury, saying, the "mere fact that the plaintiff, who testified to important particulars, was interested, was unimportant, in view of the fact that there was no conflict in the evidence, or anything or circumstance from which an inference against the fact testified to by him could be drawn." It will be observed that neither in the statement of facts nor in the opinion of the court does it appear that plaintiff's recovery was based solely upon testimony given by himself. But, if we assume that the fact was otherwise, and that the authority of Kelly's Case has not been impaired by the later decisions in Bank v. Diefendorf and Joy v. Diefendorf, supra, the conclusion is nevertheless required that the defendant was entitled to go to the jury, for in this case the testimony elicited from the plaintiff on his direct and cross examination was of such a nature that, considered in connection with the fact that he was a party to the action, the question of his credibility became one for the jury to pass upon. The defendants relied—whether wisely or not is of no moment in the present discussion-upon the plaintiff's testimony, and his books and papers covering the period in dispute, to show that he had failed to keep his part of the agreement not to ship cattle to the ports named therein by other than the agreed steamship lines. In order that the books and papers should be made available for such purpose on the trial, the plaintiff was duly subpoenaed to produce such of them as covered the period from December 31, 1888, to January 1, 1890. He did not produce them, assigning as a reason that the books were lost or destroyed, and the bookkeeper dead. We quote from his cross-examination some of the answers made by him to inquiries with reference to them:
"Q. And you have no books back of 1891? A. No. Q. Where were the books which covered this period as to which we are all interested when you saw them last? A. I can't remember. Q. What is the name of you book. keeper? A. That man I had at that time is dead now. He died last year. It is not quite twelve months since he died. I guess it is about-I can't remember exactly-nine or ten months. His name was Michael Epstein. Q. How many books do you think there were that related to your business, cov. ering this period in question, when you last saw them? A. I can't remember. Q. You did a pretty large business? A. I know that. Q. How many thousands of dollars worth of cattle do you suppose you shipped, in which you were interested, directly or indirectly, during the year 1889? I can't remember that. The bookkeeper knows that. He can tell you. Q. I thought you said he was dead? A. Well, I know; but he knew it at the time. You can't seriously mean that you don't remember whether there was one book or six books which covered the enormous shipments which you, the big. gest shipper in New York, made? A. I can't remember. Q. Did you ever
see, yourself, any page or any book which recorded or purported to record any of your transactions in cattle during the year 1889? A. No. Q. Do you know anybody that ever did, except the bookkeeper whom you saw buried. A. No. I bought a house about two years ago, and I kept my books up at the house, and then we moved out, and the books didn't come down, and the books were destroyed. They didn't come to the office, because we didn't have any safe. We bought a new safe down here. He [the bookkeeper] always kept those books in his power. I myself am no bookkeeper. Two years ago I bought a house, and the books were left there, and we bought a safe down here, and they commenced with new books. Q. He claimed your books as his own property? A. Yes. Q. And you didn't make any objection to his claiming your books as his own property? A. No, I always thought he was a straightforward man."
The defendants, evidently with the idea that plaintiff's bank account and checks would furnish evidence of payments to other lines for the shipment of cattle, inquired of him in what banks he kept his accounts for the year 1889. With what success, the following questions and answers, which fairly measure it, will disclose:
"Q. Did you keep more than one bank account during the year 1889? A. I can't remember. I kept one.
I can't tell you. We have got two bank accounts. I don't know where we generally put the money in. I can't remember exactly. I didn't draw the checks, I only signed them. Q. Can you tell this jury the name of any bank in which you kept an account, and upon which you were in the habit of drawing checks, or signing checks, durthe year 1889. A. I can't remember them all. Q. Can you remember the name of any bank in which you ever kept an account? A. I kept an account in the Chemical Bank. Q. Was it not in the Chemical Bank that you kept an account during the year 1889? A. I can't remember that."
It was at least quite remarkable that the plaintiff, who was the largest shipper of live cattle from the port of New York, and who during the year 1889 shipped between 60,000 and 70,000 head of cattle from that port to Liverpool, London, Glasgow, and Hull, should within a short time thereafter permit the books showing all these transactions to be lost or destroyed under the circumstances testified to by him. The care which he says he took of them was not such as would ordinarily be expected of a reasonably prudent man engaged in business of such magnitude. Clearly the jury should have been permitted to say, in view of the character of his answers to defendants' inquiries on cross-examination, of which we have given specimens merely, whether they believed his testimony in such respect. And if the conclusion should have been reached that his testimony in that regard was untrue, they would have been at liberty to disregard the rest of his evidence. In addition, the defendants produced two witnesses, who were shipping agents of other lines, who testified that in the year 1889 they had seen plain. tiff's foreman, Mr. Hirsch, on several occasions, superintending the loading of cattle on boats belonging to their lines. In view of the general rule which obtains, when the testimony of a party is wholly uncorroborated, coupled with the improbability of many of the plaintiff's statements, the defendants were clearly entitled to have the jury pass upon his credibility. It was for them to say, after weighing the entire testimony in the light of the witness' interest in the result, whether they believed that he had met the burden
resting upon him of establishing full performance of the contract on his part. The judgment should be reversed, with costs to the appellant to abide the event.
VAN BRUNT, P. J., concurs.
FOLLETT, J., (dissenting.) The circumstances disclosed by the record made the credibility of the plaintiff a question for the jury, and the court erred in directing a verdict. But I am not prepared to hold that the credibility of a party must, in all cases, be submitted to the jury. In case the testimony of a party is wholly uncontradicted, is not improbable on its face, and there is no circumstance which tends to discredit the credibility of the party or the testimony given, the court may direct a verdict based on such testi. mony. Lomer v. Meeker, 25 N. Y. 361; Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109. I do not understand that the court of appeals has laid down as a general rule that in all cases the credibility of a party or of a witness interested in the event of the action must be submitted to the jury, but in the particular cases considered it was held that the credibility of the party or of the interested witness should have been submitted to the jury.
(6 Misc. Rep. 162.)
SMITH V. MATTHEWS et al.
(Superior Court of Buffalo, Special Term. May, 1893.) LIBEL-PUNITIVE DAMAGES-WANTON PUBLICATION.
Where defendant was guilty of such carelessness as constituted a wanton publication of a falsehood, punitive damages may be awarded, though there was no actual malice. Action by Smith against Matthews and others for libel. Defend ants move for a new trial on a case and exceptions. Denied.
Lyman M. Baker, for plaintiff.
HATCH, J. Plaintiff recovered a verdict for libel in the sum of $4,000, which defendants now move to set aside, mainly upon grounds of alleged error contained in the charge. It was admitted that the article complained of was libelous, that defendants published it in two issues of their paper, and the jury found that it was written of and concerning the plaintiff, which latter fact the answer put in is. sue. Further allegations of the answer plead matters in mitigation of damages. The libel charged plaintiff, a married woman, with eloping with a man named Rutherford. It therefore imputed to her unchastity, and was libelous per se. Neither this fact, nor the conclusion of law arising therefrom, was controverted upon the trial, nor is it now. The defendants, however, showed that their agent, an editor, charged with the duty of editing telegraphic matter, received the article in the usual course, by telegraph, with other mat.
ter, from one of the news agencies of the country; that said agent caused the head lines to be written, and the article published in good faith, with a belief in its truthfulness; that defendants had no knowledge of the publication of the article, and were without such knowledge of the publication of the article in fact, and were without such knowledge until the commencement of this action, about a year after the publication; that immediately they caused to be published and circulated through their paper a full retraction of the charge, made due apology, and expressed their regret for having published it. It also appeared that the defendants had no acquaintance with or knowledge of the plaintiff or Rutherford until this action was brought, and that they were not actuated with malice towards them, or either of them, at the time of the publication or since. It further appeared that defendants had a correspondent in the city of Toronto, where the plaintiff lived, and where the alleged elopement took place, and that they could have easily verified the truthfulness or untruthful. ness of the charge in a short time at little expense, and that their agent had authority to make such inquiry, if he deemed it proper so to do, but that he made no investigation, and relied entirely upon the statements contained in the article, and the source from which it was received. Plaintiff's counsel, both before the court and in his address to the jury, expressly disclaimed any express malice exist. ing in the minds of the defendants towards the plaintiff. His claim was and now is that while there was no actual malice on the part of the defendants, or either of them, yet that they were guilty of such carelessness and negligence in its publication as characterized it as a wanton publication of a falsehood, and from that the jury would be authorized to impute malice and award punitive damages. Defendants claim there was no basis to award punitive damages upon the evidence, and plaintiff's disclaimer of any claim of actual malice expressly removed this element from the case. tive positions present one of the questions on this motion. In Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701, the rule is laid down that punitive damages may be awarded, not alone where the publication is made in bad faith, and in fact malicious, but where it is recklessly, carelessly, or wantonly made. In Warner v. Publishing Co., 132 N. Y. 185, 30 N. E. 393, this statement is made: “A libel recklessly or carelessly published, as well as one induced by personal ill will, will support an award of punitive damages.” The cases relied upon by defendants in this regard (Hamilton v. Railroad Co., 53 N. Y. 30; Cleghorn v. Railroad Co., 56 N. Y. 44; Doni. van v. Railway Co., 1 Misc. Rep. 368, 21 N. Y. Supp. 457) have no application to this case, for the reason that in each of them there was a lack of proof to show gross negligence upon the part of the corporation itself, which is a prime requisite in that class of cases, and must be established by proof extrinsic to the inquiry. In the present case, the libel being established, its falseness imputes the malice, without further proof. This distinction is very clearly pointed out in Samuels v. Association, 9 Hun, 295, in the dissenting opinion by Mr. Justice Davis, adopted by the court of appeals, (75 N. Y. 604,) and reiterated in Bergmann v. Jones, 94 V. Y. 62. The disclaimer
of plaintiff, here, went no further than to exclude personal ill will and hatred on the part of the defendants, and was so understood upon the trial. I find no distinction in the authorities between what is known technically as "actual malice," or, in other words, "hatred and ill will," as a basis for awarding punitive damages; and, where such damages rest for support upon a careless and wanton act, each alike furnishes ground for the award. It is quite likely that a jury would regard the former with more disfavor than the latter, but this only goes to the degree of punishment, not to the right to inflict it. I am of the opinion that the evidence warranted the submission of this question to the jury, for when the de. fendants had provided means of publication, and intrusted to an agent the discretionary power of publishing or rejecting, investigating or taking chances of the truthfulness of, an article, his recklessness becomes theirs, and it rested with the jury to characterize the act, and withhold or award punishment.
We are now to see if there was any error in the submission of this case to the jury. The court first instructed the jury, as applied to the facts of the case, what constituted a libel; declared the article to be a libel, if false, and submitted to them whether it was published of and concerning the plaintiff; then stated the rules gov. erning the assessment of actual damages, and how measured. With this no fault is found. The court then charged that the jury might go further, and find from the publication malice in fact, and, if such was found, then authority existed to award punitive damages. To this part of the charge, defendants excepted, and now argue that error was committed, as, defendants had disclaimed actual malice. As we have already seen, malice can be imputed from personal ill will, actual malice, or from heedlessness and wantonness. If the charge had remained silent upon this subject, doubtless the criti. cism would be effectual, in view of the disclaimer and conceded facts; but the charge did not stop here, for it then proceeded to state defendants' position as follows:
"It is expressly stated by counsel for the plaintiff that he makes no claim that they were actuated in the publication of this article by express malice, so you will see that you cannot draw from these circumstances express malice. These defendants bore the plaintiff no ill will, nor her husband, and, so far as this case discloses, had no desire to injure her, so far as they were actuated by any intent in their minds, and consequently that becomes an important matter for you to take into consideration in determining the extent to which you will punish these defendants for the injury done."
Again, in speaking of the published retraction by defendants, the court further charged:
"That, like their present disclaimer from the stand, is to be taken by you, conclusively, that in the minds of these defendants there was no intent, at any time, to inflict injury upon this plaintiff.
And that strikes out from this case, so far as the defendants are concerned, actual malice and intent."
The charge then proceeds to refer to the facts from which recklessness and wantonness could be inferred, and makes this statement:
"And if you shall be satisfied, taking into consideration all these matters, that that was the truth, why then you will see that, while there was no