Appolinary Karwowski, Respondent, v. John Pitass, Appellant

Appolinary Karwowski, Respondent, v. John Pitass, Appellant. Libel—when vindictire damages are proper—a second, and further cross-examination rests in the discretion of the court. Vindictive damages may be given in. an action for libel, where the jury considers that the defendant was incited by actual malice or acted wantonly or carelessly in making the defamatory charge. The extent to which a further cross-examination of a party, who has already been quite extensively cross-examined, shall be carried, is in the discretion of the court. Appeal by the defendant, John Pitass, from a 'judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 23d day of November, 1896, on the verdict of a jury, and. also from an order entered in said clerk’s office on the 23d< day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes. This action was brought on'to trial on the 13th day of October, 1896, at a Trial Term held by Hr. Justice Lewis, and after a trial of five days in length the case was committed to the jury and a verdict of $3,500 in favor of the plaintiff was returned. ■ John W. Fisher, for the appellant. E. G. Mansfield, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: Defendant was the owner of a newspaper in the city of Buffalo in which were published the several articles mentioned in the plaintiff’s complaint. At the close of the plaintiff’s evidence the defendant moved for a nonsuit, and at the close of the whole evidence the- defendant again moved for a nonsuit, and on each occasion took an exception. The learned trial judge carefully defined libel, and he stated, to the jury that the publication of the articles was not deniedj and that it was conceded that the various articles that, were read to the jury were published by the defendant, and he added: “ It is - not claimed by the defendant that they were true. That is to say, he does not plead the truthfulness of them in justification of the articles. But he does plead that these various things that we have listened to here occurred prior to the publication of the articles, and that being annoyed, and thinking that it was for the interests of the people over whom he had jurisdiction to attack the plaintiff, he published these articles. That the articles are libelous — that is to say, that they tend to disgrace and degrade and lessen the esteem of the plaintiff among the people with whom he is acquainted, you will, perhaps, not have any very serious .difficulty on that question. There is some dispute as to the correct translation of these articles, and I have had the reporter give me the testimony of the witnesses in translating the articles.” The judge then']3roceeded to read the translation made in behalf of the plaintiff and the translation made in behalf of the defendant, and he then instructed the jury, viz.: “ One question is, whether this article is of such a character that it tends to disgrace, to degrade and to bring the plaintiff into disrepute among those who knew him. If so, it is libelous.” . Pie then adverted to the fact that there were other articles that had been read, and added :. “ Yon will probably not have any very serious difficulty in coming to the conclusion that these articles, under the definition of libel, as I have given it to you, were libelous.” He then submitted the other questions of fact to the jury in a cool, careful, deliberate charge. Reviewing it in the light of the recent enunciation .of the Court of Appeals in Smith v. Matthews (152 N. Y. 157), we think the trial judge committed no error in the body of the charge, or in the refusals to the requests that were made, or qualifications given in answer thereto. He seems to have been very patient and indulgent during the progress of a long and tedious trial. We have looked at the several exceptions to which our attention was invited by the learned counsel for the appellant, and are of the opinion that they do not present prejudicial error. After the plaintiff had been examined as a witness, he was cross-' examined quite extensively by the defendant. Apparently, several days thereafter, the defendant proposed to recall the plaintiff for further cross-examination, and indicated to the jndgé the several subjects upon which he sought to further cross-examine him. We think the trial judge did not abuse his discretion in declining, at . that stage, to allow a more extended cross-examination upon the subjects indicated by the counsel for the defendant. Without discussing all the legal questions which are raised by-the.appellant, we think the trial was carefully conducted, and that no such error occurred as requires us to interfere with the verdict of the jury. It is suggested, in behalf of the defendant, that the damages are excessive. “A libel, recklessly or carelessly published, as well as one induced by personal ill-will, will support an award of punitive damages.” (Warner v. P. P. Co., 132 N. Y. 185; Holmes v. Jones, 147 id. 59.) In the case of Holmes v. Jones (147 N. Y. 59) it was said, viz.: “ The amount of damages in an action for libel is peculiarly within the province of the jury. The jury may give nominal damges or damages to a greater or less amount, as they shall determine. The jury may accord damages which are merely compensatory, or damages beyond mere compensation, called punitive, or vindictive, damages, by way of example or punishment, when, in their judgment, the defendant was incited by actual malice, or acted wantonly or recklessly in making the defamatory charge.” . Upon a review of the whole case we are of the opinion that we ought not- to disturb the verdict. ( Warner v. Press Publishing Company, 132 N. Y. 181.) Judgment and order affirmed, with costs. . All concurred, except Follett, J., not sitting. Judgment and order affirmed, with costs.