Opinion
No. 3929
Decided February 3, 1947.
Libel — Newspaper article — Evidence — Position of article in newspaper and on particular page, relevant — Entire newspaper admissible — Truth no defense but considered in mitigation of damages — Motion to amend answer — Not abuse of discretion to overrule, when.
1. In a libel action based on newspaper articles, the position of such an article, with reference to the entire newspaper and to the particular page containing the article, is relevant, and it is not error to admit in evidence the entire newspaper.
2. In such action, where the answer is a general denial, truth of the alleged libel cannot be considered as a defense, but can be considered in mitigation of damages.
3. There is no abuse of discretion by a trial court in overruling defendant's motion to amend an answer at the opening of the case, where more than one year has elapsed between the filing of the petition and the commencement of the trial and the proposed amendment raises new issues of which plaintiff could not have known and which he is not prepared to meet.
APPEAL: Court of Appeals for Franklin county.
Messrs. Iddings, Jeffrey, Weisman Rogers and Mr. Raglan R. Reid, for appellee.
Mr. Frank C. Shearer, for appellant.
This is an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin county. The action is one for damages for libel arising out of a series of articles published, between November 25, 1944, and February 17, 1945, by the defendant in its weekly newspaper styled "The Ohio State News."
The case was tried to a jury which returned a verdict for the plaintiff in the sum of $3,500.
The first error assigned is that the trial court erred in the admission of evidence over the objection of the defendant. The error referred to was the admitting in evidence of the entire issues of the newspapers which contain the articles complained of. Counsel for the defendant contends that those articles should have been clipped from the newspapers and only the articles themselves admitted into evidence. We are referred to 17 Ohio Jurisprudence, 164, Section 127, which states that irrelevant matters must be excluded. We do not believe those exhibits to be irrelevant, for in an action of this kind it is relevant for the court and jury to know not only the contents of the printed article but its position in the newspaper with reference to the total number of pages contained in that particular edition and the article's location on a particular page. The trial court at the time of admitting those exhibits very properly directed the jury to disregard the contents of the various newspapers except as to the articles concerning the plaintiff. We find no error in the admission of such evidence.
The second assignment of error is that the trial court erred and abused its discretion in refusing to permit the defendant to file an amended answer at the opening of the case. The record discloses that more than one year elapsed between the filing of the petition and the commencement of the trial. The record further shows material differences between the original answer and that tendered by the defendant after the jury had been impanelled and sworn. The second answer tendered raised new issues of which the plaintiff could not have known and was not prepared to meet. Section 11363, General Code, very properly permits amendments of pleadings "in furtherance of justice" and in the sound discretion of the court. The trial court stated that to permit the proposed amendment would not be in furtherance of justice and overruled the defendant's motion. Counsel is relying on the case of Buckeye Garage Sales Co. v. Caldwell, 18 C.C. (N.S.), 429, 33 C.D., 136, which we find, on the basis of the facts involved, has no application to the instant case. In our opinion there was no abuse of discretion on the part of the trial court.
The third assignment of error is that the trial court erred in refusing to charge the jury as requested by the defendant on the subject of truth as a defense. The record shows that counsel for the defendant after the court had completed its charge specifically requested the court to charge the jury upon the subject of truth as a defense, which request the court denied on the ground that truth was not pleaded as a defense.
The Ohio cases cited by defendant's counsel recite the well known rule that truth is a defense in a libel action, and it is so provided in Section 11342, General Code. The answer filed by the defendant does not plead truth as a defense but is in the nature of a general denial.
An examination of the entire charge of the court reveals that the court properly charged the jury under the pleadings and evidence on the question of truth. The jury was instructed that the truth of the alleged statements may be considered for the purpose of mitigating the damages. We find this assignment of error is not well taken.
The next assignment of error is that the verdict was excessive and should have been set aside for the reason that it appears to have been given under the influence of passion or prejudice. We find nothing in the record to support that conclusion.
The last assignment of error is that the court erred in its charge to the jury as to damages. The defendant is contending that the court, to the prejudice of the defendant, overemphasized the word "damages" and used it so constantly as to be repetitious. We have thoroughly examined the entire charge and find that there is no merit in this assignment. The court did give a lengthy charge, which was thorough and correctly stated the law of this state. The word was used only as the record in this case required.
The judgment will be affirmed.
Judgment affirmed.
HORNBECK, P.J., WISEMAN and MILLER, JJ., concur.