TURTON v. N.Y. REC. CO, N.Y., Judgment, Law, casemine.com

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Attorney(S)

William H. Stayton for appellant. Lawrence E. Embree for respondent.

Judges

Robert Earl

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Smart Summary

Factual and Procedural Background

This case arises from a libel action brought by John Turton against the New York Recorder Company. The libelous article allegedly charged Turton with dishonestly obtaining $8,500 from the Southern Bank and fleeing with the money to New York. The complaint included an innuendo explaining the defamatory meaning of the article. The defendant sought to amend its answer to assert justification as a defense but presented no evidence in support during trial. The trial court held the article libelous per se and ruled on damages, ultimately entering judgment for the plaintiff.

Legal Issues Presented

Whether the alleged libelous article was ambiguous or libelous per se, requiring or not requiring an innuendo to clarify its defamatory meaning.
Whether the defendant could amend its answer to assert justification and the evidentiary implications of failing to prove justification.
The admissibility and legal effect of the defendant’s offer to publish a retraction after commencement of the suit on mitigation of damages.
The proper characterization and definition of libel in the jury charge and whether any error therein was prejudicial.

Arguments of the Parties

Appellant's Arguments

The article was of doubtful meaning and not libelous per se, thus requiring an innuendo to allege its defamatory meaning and application.
The trial judge erred by refusing to submit the meaning and application of the article to the jury.
The trial judge incorrectly defined libel in his charge to the jury.
The trial judge erred in refusing to consider the defendant’s offer to publish a retraction as mitigating evidence for damages.

Respondent's Arguments

The article was clear and unambiguous, libelous per se, and no innuendo was necessary.
The defendant’s amendment to set up justification was allowed but no evidence was offered to prove it, so the issue was not for the jury.
The offer to publish a retraction was insincere and legally ineffective to mitigate damages because it was an offer to publish a retraction written by the plaintiff’s attorney, who was not authorized to act for the plaintiff in that capacity.
The trial judge’s definition of libel and characterization of the publication as wanton and reckless was proper and within judicial discretion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stuart v. Lovell, 2 Stark. 84	Reiteration of libel or slander after suit may be evidence on malice and damages.	Supports the principle that subsequent publications can be considered for damages, but only if not an independent cause of action.
Thomas v. Croswell, 7 Johns. 264	Same as above regarding repetition of defamatory statements.	Referenced to illustrate the prevailing doctrine on repetition of libel and its evidentiary use.
Inman v. Foster, 8 Wend. 602	Evidence of repetition of defamatory statements after suit is admissible on malice and damages.	Supports the court’s discussion on admissibility of subsequent publications.
Keenholts v. Becker, 3 Den. 346	Same principle on repetition of libel and damages.	Used to illustrate the legal context on repetition evidence.
Root v. Lowndes, 6 Hill, 518	Reiteration of defamatory language after suit relevant to damages.	Supports the court’s analysis on subsequent publications.
Johnson v. Brown, 57 Barb. 118	Same principle on repetition of libel after suit.	Referenced in the court’s survey of precedents.
Thorn v. Knapp, 42 N.Y. 474	Repetition of libel after suit may be evidence on damages and malice.	Supports the court’s position on evidence of post-suit publications.
Titus v. Sumner, 44 N.Y. 266	Same principle on repetition of defamatory statements.	Part of the court’s cited authorities illustrating the doctrine.
Bassell v. Elmore, 48 N.Y. 561	Reiteration of libel and its evidentiary effect.	Used to support the court’s reasoning on damages.
Frasier v. McClosky, 60 N.Y. 337	Same principle on repetition and damages.	Referenced in the court’s doctrinal discussion.
Daly v. Byrne, 77 N.Y. 182	Reiteration of libel as evidence on damages.	Supports the court’s analysis.
Cruikshank v. Gordon, 118 N.Y. 178	Same principle on repetition of defamatory statements.	Included in the court’s survey of authorities.
The Evening News Assn. v. Tyron, 42 Mich. 549	Retraction published after suit begun generally cannot mitigate damages.	Cited as a contrasting authority but distinguished by the court for its facts and treatment.

Court's Reasoning and Analysis

The court began by addressing whether the article was libelous per se or required an innuendo. It found the article unambiguous and clearly defamatory, charging Turton with dishonest and wrongful conduct. The complaint's innuendo sufficiently alleged the defamatory meaning even if one were necessary. Thus, the trial judge properly ruled the article libelous per se and did not err in refusing to submit its meaning to the jury.

The defendant sought to amend its answer to assert justification but offered no evidence to support this defense at trial. The court held that without proof, the issue of justification was removed from the jury's consideration, leaving only damages to be determined.

The court rejected the defendant’s contention that the trial judge erred in defining libel or characterizing the publication as wanton and reckless, finding the judge’s charge substantially accurate and within judicial discretion. The defendant’s failure to investigate the truth before publication justified the characterization of recklessness.

Regarding the defendant’s offer to publish a retraction after suit commencement, the court analyzed the legal effect of such an offer. It concluded that an offer to publish a retraction written by the plaintiff’s attorney—who was not authorized to act as the plaintiff’s agent in this capacity—was legally ineffective to mitigate damages. The defendant’s failure to publish a good faith retraction promptly after suit deprived it of any benefit from mitigation. The court also surveyed authorities on the admissibility of subsequent publications and retractions, noting the prevailing doctrine allows retractions after suit to mitigate damages if promptly and fairly published, but a mere offer to publish does not suffice.

The court further observed that the defendant’s answer alleged the plaintiff’s reputation was so bad that no injury could result, yet the defendant did not offer evidence to support this claim. The court found no error in the record and affirmed the judgment.

Holding and Implications

Judgment Affirmed.

The court affirmed the trial court’s judgment in favor of John Turton, holding that the article was libelous per se, that the defendant’s amendment to assert justification was unsupported by evidence, and that the defendant’s offer to publish a retraction after suit was legally insufficient to mitigate damages. The decision directly upholds the plaintiff’s recovery for libel damages. No new precedent was established beyond the application of settled principles regarding libel per se, justification, and retraction offers in libel suits.

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JOHN TURTON, Respondent, v. NEW YORK RECORDER COMPANY, Appellant.

EARL, J.

It was claimed upon the argument before us that the alleged libelous article was of doubtful meaning and not necessarily libelous per se, and that, therefore, there should have been an innuendo in the complaint alleging its meaning and application. If an innuendo was necessary we find it in substance in the complaint, in which it is alleged that by reason of the publication the plaintiff has been "held up to the public, his business acquaintances and friends as a thief and a dishonest and untrustworthy man." But we do not think the article is ambiguous. It is to be construed as it would ordinarily be understood by people generally, and we think no person of ordinary ability and intelligence could fail to understand it to charge the plaintiff with dishonestly and wrongfully, if not feloniously, obtaining $8,500 of the Southern Bank's money, and going in the night with it out of the state to the city of New York. We think the trial judge did not err in holding that the article was libelous per se and refusing to submit its meaning and application to the jury.

At the commencement of the trial, the defendant requested permission to amend its answer so as to set up a justification of the charge contained in the alleged libelous article. The plaintiff's attorney making no objection to such amendment, it was then stipulated that the answer might be deemed amended so as to set up a justification of the charge.

Upon the trial, there was no evidence whatever impugning the good reputation of the plaintiff, but, on the contrary, his character and reputation were shown to be good. No proof whatever was given or offered upon the trial to sustain the plea of justification. On the contrary, it was proved by uncontradicted evidence that the plaintiff, at the time he left Savannah, did not have a dollar of the money of the Southern Bank, and that he never had had, and that he had never in any way wronged that bank. There was, therefore, nothing for submission to the jury but the question of damages, and all the objections made to evidence during the progress of the trial became wholly immaterial.

It is said that the trial judge, in his charge to the jury, gave an incorrect definition to the word libel. That is wholly unimportant, as the article was, as matter of law, libelous. We think, however, that the criticism of the counsel for the defendant upon the charge in that respect is hypercritical, and that the learned trial judge defined libel with substantial accuracy.

The court did not transcend the bounds of a proper judicial discretion in saying to the jury that the article was published "wantonly, recklessly, and with an utter disregard as to whether it was true or false." The article came to the defendant, and it was in such haste to publish it that it made no inquiry whatever of the plaintiff or his firm, or of any one else, as to the truth of the charges made therein, and so its publication was properly characterized by the trial judge.

Upon the trial, plaintiff's attorney admitted that on October 17th, seventeen days after the commencement of the action, defendant's attorney wrote him a note offering to publish in the Recorder any retraction of the article that plaintiff's attorney would write, which offer was declined by the attorney, and the court charged the jury that this fact thus admitted could not be considered in mitigation of damages. The claim is now made on the part of the defendant that in this regard the trial judge committed error. The defendant did not publish any apology or retraction. It simply made an offer to the plaintiff's attorney to publish any retraction that he would write. The writing of such a retraction would not have been within the line of the duty of plaintiff's attorney as attorney in the action. If the defendant had procured him to write the retraction he would have acted as its agent, and not as the agent of the plaintiff. The plaintiff would in no way have been responsible for any thing that was written by the attorney in response to the offer, and can in no way be affected by the refusal of the attorney to write. The offer and refusal was a transaction between the defendant and the plaintiff's attorney which did not legally concern the plaintiff. But even if the defendant could have had the benefit of a retraction published after the commencement of the action, the mere offer to publish it gave it no benefit or advantage. It should have published the retraction in good faith promptly upon the commencement of the action, and then it would have been in a position to claim whatever benefit could legally flow from such publication. We are not prepared to say that a retraction published in good faith after the commencement of an action for libel can under no circumstances be proved in mitigation of damages. Where the suit was commenced as this was, without any request for the retraction of the libelous charge, if the defendant promptly after the suit was commenced published a fair and full retraction, we see no reason to doubt that such publication could be proved and submitted to the jury to be considered by them upon the question of exemplary damages. Under such circumstances a retraction after suit brought may be as valuable and effective as one published before, and there is the same reason for the submission to the jury of the one as the other.

It is the prevailing doctrine that the reiteration of a libel or slander after suit brought may be proved on the question of malice and damages, probably with this qualification, however, that the cause of action for the reiteration has been barred by the Statute of Limitations, or that the language subsequently reiterated is for some other reason not actionable. The authorities upon this point are not harmonious. (Townshend on Slander and Libel [4th ed.], 653, et seq.; Stuart v. Lovell, 2 Stark. 84; Thomas v. Croswell, 7 Johns. 264; Inman v. Foster, 8 Wend. 602; Keenholts v. Becker, 3 Den. 346; Root v. Lowndes, 6 Hill, 518; Johnson v. Brown, 57 Barb. 118; Thorn v. Knapp, 42 N.Y. 474; Titus v. Sumner, 44 id. 266; Bassell v. Elmore, 48 id. 561; Frasier v. McClosky, 60 id. 337; Daly v. Byrne, 77 id. 182; Cruikshank v. Gordon, 118 id. 178.) No case holds that a repetition of a libel or slander after suit brought is in its nature not competent evidence on the question of malice and damage, and whenever it has been excluded as evidence it has always been upon the ground that it was an independent cause of action, and thus, if such evidence were received, that there would be danger of a double recovery. In The Evening News Assn. v. Tyron ( 42 Mich. 549) it was held that a retraction of a libelous article published after suit is begun for the libel cannot be considered in mitigation of damages. That case does not appear to have been much considered, and there the retraction seems to have been published long after the suit was begun. If the plaintiff can give in evidence language published or uttered subsequently to the commencement of the action for the purpose of aggravating damages, it seems quite reasonable that the defendant ought to be permitted to give in evidence a fair and honest retraction of the charges promptly made subsequently to the commencement of the action in mitigation of damages.

But for reasons stated the trial judge was right in holding that the mere offer to publish such a retraction as plaintiff's attorney would write was incompetent for any purpose. The defendant's offer to publish a retraction and to make what reparation to the plaintiff it could seems not to have been very sincere. It alleged in its answer, in substance, that the plaintiff's reputation was so bad that he could not be injured by the publication, and yet did not give a particle of evidence to sustain the averment. Even upon the trial, after it knew all the facts and that the charge contained in the article published by it was utterly without foundation, it amended its answer by setting up a justification of the charge, and then made no attempt whatever to prove the justification.

We find no error in the record, and the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

TURTON v. N.Y. REC. CO