Opinion
Argued January 30, 1900
Decided February 27, 1900
Tyndale Palmer, appellant, in person. Charles B. Wheeler for respondents.
The action was for libel, and but two exceptions need be considered upon this appeal.
On the trial the defendants, under the objection and exception of the plaintiff, were permitted on the examination of the latter to prove that other newspapers throughout the country had published the libel complained of, and that he had commenced suits against others for their publication of it. This evidence was inadmissible. It is now too well settled to be questioned that the fact that others have published the same libel which was unknown to the defendant when the publication complained of was made, or that suits have been commenced against others for the publication of such libel, is inadmissible. The defendants in this case were liable, and that some one else was also liable was immaterial. It would not properly diminish the recovery against them to show that the plaintiff had recovered or might recover damages from others who had published the same libel. Each defendant is to pay damages for the injuries which he has occasioned and not for the injury by others. (Odgers on Libel and Slander, p. 316; Newell on Defamation, etc., p. 899.) Therefore, this class of evidence is inadmissible.
While the defendant may, perhaps, show in mitigation of damages that he copied the libelous paragraph from a public newspaper, and, hence, believed it to be true, he may not show that other journals published the same statement simultaneously or subsequently to the publication complained of. Nor can he prove that the alleged libel appeared in another newspaper for which the plaintiff had already recovered damages. (Folkard's Starkie on Slander and Libel, p. 545.) That this evidence was inadmissible seems to be well established by the decisions in this state, as well as in other jurisdictions. ( Tillotson v. Cheetham, 3 Johns. 56; Palmer v. N.Y. News Pub. Co., 31 App. Div. 210; Gray v. Brooklyn Union Pub. Co., 35 App. Div. 286; Morrison v. Press Pub. Co., 38 N.Y.S.R. 357; Mattice v. Wilcox, 147 N.Y. 624; Hatfield v. Lasher, 81 N.Y. 246; Smith v. Sun Printing Pub. Assn., 55 Fed. Rep. 240, 245; Enquirer Co. v. Johnston, 72 Fed. Rep. 443; Wilson v. Fitch, 41 Cal. 363, 383; Sheahan v. Collins, 20 Ill. 325.)
The respondents now contend that this evidence was elicited by a proper cross-examination of the plaintiff, and, although it had the effect contended for by him, it was admissible on such an examination. We do not think so. On the trial the plaintiff introduced in evidence several letters which were a part of a correspondence between him and the defendants. The defendants then introduced another letter which was a part of the same correspondence, in which the plaintiff stated: "The financial loss to me from the publication as a whole was most serious. However, I do not expect any one paper to bear it all, but only its due proportion." This was the pretext of the defendants to justify the examination as to other papers having published the same libel, and as to the commencement of suits against others. If it be assumed that the defendants had a right to introduce this letter in evidence as a part of the whole correspondence between the parties, still, it having been introduced by them, they could not properly cross-examine the plaintiff as to evidence so introduced, especially when its effect was to call out that which was utterly inadmissible and highly improper. Indeed, the examination which elicited this evidence was not a cross-examination at all. The proof thus obtained was procured from the plaintiff by compulsion. That this evidence was in no sense obtained by a proper cross-examination, is quite manifest. Therefore, the judgment cannot be upheld upon that ground.
The judgment should be reversed and a new trial granted, with costs to abide the event.
PARKER, Ch. J., GRAY, BARTLETT, VANN, CULLEN and WERNER, JJ., concur.
Judgment reversed, etc.