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Second Departinent, October, 1911.

[Vol. 146. The defendant published in its newspaper the following article of and concerning the defendant:

“OSTERHELD'S WIFE TO SUE FOR DIVORCE. “A Hundred Reasons,' She Says; ‘Humiliation Because

of Women Is One.'

“She Was His Inspiration. I Loved Him, but Women of Church Have Turned His Head.'

“Mrs. Mary Osterheld, wife of the Reverend Dudley Oliver Osterheld of the Methodist Episcopal Church of Ozone Park, Long Island, whose domestic troubles were heard before Supreme Court Justice Garretson, in Flushing, on Saturday, declared last night she would bring divorce proceedings against her husband as soon as her attorney was able to draw up the papers.

“Mrs. Osterheld was at the home of her brother, George Schroeder, No. 365 Grove Street, Brooklyn. It was here last week that the papers were served upon her in writ of habeas corpus suit wherein the minister tried to recover their two children whom she is said to have kidnapped in January last. The house is a very neat looking one and does not bear out the impression made by the minister, who said he did not want his children in such a place.

“I will never live with my husband again,' said Mrs. Osterheld. There were a hundred reasons for leaving him. The principal one was his inhuman treatment and the humiliation I suffered. When I met him he was an uneducated man. He used to call me his inspiration. I induced him to study because I loved him. We were married six years ago. The first year we were forced to live on his salary of $350 a year as a lawyer's clerk.

“«Then he studied for the ministry and two years ago was fully ordained. Ambition seized him and he threw himself into any crusade, such as the one against the liquor dealers, although his father was one and his brother is one. He never remained home at nights and humiliated me by his attentions to other women. The women of the church turned his head. As for money, I had no clothes and little food. He never appeared satisfied unless he had a flock of women about him.

App. Div.) Second Department, October, 1911.

“I know what the statutes of the State require to obtain a divorce and I am going to sue for one, and when the testimony is heard in court the Rev. Dudley Oliver Osterheld will be shown in his true colors.'

“Mrs. Osterheld is a refined little woman with a sweet but determined countenance. She is particularly incensed against the women of her husband's congregation, saying they really were responsible for the separation.”

In his complaint the plaintiff set forth as libelous the following excerpt from the entire article:

“REV. OSTERHELD'S WIFE TO ASK DECREE. “Mrs. Mary Osterheld, wife of the Reverend Dudley Osterheld, of the Methodist Episcopal Church of Ozone Park, Long Island, whose domestic troubles were heard before Supreme Court Justice Garretson in Flushing on Saturday, declared last night she would begin divorce proceedings as soon as her attorney was able to draw up the papers."

“I know what the statutes of the State require to obtain a divorce, and I am going to sue for one, and when the testimony is heard in court the Rev. Dudley Oliver Osterheld will be shown in his true colors."

He thereby based his right of recovery simply on that portion of the article whereby it is alleged he was charged with adultery, omitting any reference to the other portions of the same article charging him with cruel and inhuman treatment of his wife and other dereliction of his duties as a husband and father. These omitted statements, if untrue, were certainly libelous, and a fair inference to be drawn from the omission to complain of their publication is that the plaintiff sought to avoid judicial inquiry into their truth.

In its original answer to the complaint the defendant, among other things, not only set up the entire article and undertook not only to justify by appropriate allegations the statements not complained of, but to plead them also by way of mitigation of damages.

The plaintiff moved at Special Term to strike out these allegations, as well as others contained in the answer. The motion was granted on the ground that the matter was scandalous and

Second Department, October, 1911.

[Vol. 146 irrelevant. This appeal brings up for review not only the judg. ment entered on the verdict, but also the order of the Special Term pursuant to the provisions of section 1316 of the Code of Civil Procedure.

The defendant has at no time attempted to justify that portion of the article complained of whereby the plaintiff is inferentially charged with the commission of adultery. It does, however, contend that it should have been permitted to have plead the entire article, and to have shown by way of reduction and mitigation of damages the truth of the statements contained in the balance of the article. On the trial, as the pleadings stood, the defendant was confined by the rulings of the court to asking the reporter who interviewed the wife whether the wife made to her the statements contained in the excerpt set forth in the complaint.

It is manifest that if it were competent, either in reduction or mitigation of damages, to prove the entire publication and the truth of the portions not complained of, the defendant should have had the benefit of such proof. It is inconceivable that a verdict of the amount given could have been recovered had the defendant been able to establish the truth of the statements made, particularly as to the charge of cruel and inhuman treatment.

In the very outset of the discussion as to the relevancy or irrelevancy, competency or incompetency of evidence of this character, it is necessary to keep clearly in mind the distinction between compensatory and punitive damages, both recoverable in proper cases for libelous publications. A person libeled is always entitled to recover his actual, otherwise termed compensatory, damages. There can be no mitigation of actual damages. (Wuensch v. Morning Journal Assn., 4 App. Div. 115; Young v. Fox, 26 id. 261, 271.)

No matter how honest the publisher may have been in his belief in the truth of the statement made, or how free from improper motives, or how he may have been misled by information derived from reliable sources, nevertheless none or all of these things can reduce the award for actual or compensatory damages.

On the other hand, all these facts become and are very mateApp. Div.) Second Department, October, 1911. rial on the question whether the jury shall go beyond compensatory damages, and award something in addition by way of punishment. Any legitimate and relevant fact tending to show good faith in the publisher may, therefore, be shown in mitigation – as as excuse for publishing the libel. This is mitigation of damages.

Although the injured party is entitled to recover all his actval or compensatory damages, nevertheless the recovery, so far as such damages are concerned, should be confined to the actual damages.

When a person is wrongfully libeled, what are the elements going to make up his actual damages? The recovery for actual damages is not confined to the injury to general reputation, although that may constitute a very large element of the injury. The jury may, and probably in most actions for libel do, award compensation as well for injured and outraged feelings. The mental suffering naturally experienced by one whose honor, integrity and character are unjustly attacked, and who is humiliated in the community, and whose good name is despoiled, is no inconsiderable element in the amount of actual damages to be awarded for a libelous publication. It follows as the day the night that if the person libeled is an abandoned character, if he or she lacks the sensibilities of a pure and upright person, such a person necessarily suffers less in mind than those who possess such qualities.

It has accordingly repeatedly been held that where a person sues another for libel, charging certain specific acts imputing unchastity, although the defendant may be unable to justify and show the truth of the particular publication, nevertheless the defendant may show other, different and specific acts of unchastity with other persons, and is not confined to proof of general reputation for unchastity. (Smith v. Matthews, 21 Misc. Rep. 152; Ford v. Jones, 62 Barb. 484; Gulerette v. McKinley, 27 Hun, 320; Young v. Johnson, 46 id. 164; affd., 123 N. Y. 226.)

In Smith v. Masten (15 Wend. 270) the action was one of a husband against another for debauching his wife. A new trial was granted on the ground of newly-discovered evidence consisting of facts showing the plaintiff himself had been guilty

Second Department, October, 1911.

[Vol. 146.

of illicit relations with a woman not his wife. The court said: “If the plaintiff was in the habit of improper intimacy with other women, his sense of moral propriety, and regard for chastity, could not be much offended by the loss of virtue in his wife.

It is true that the alleged misconduct of the plaintiff took place since the elopement of his wife, but as damages were recovered by him for his wounded feelings, and the destruction of his domestic happiness, not only up to the time of the commencement of the suit, but until the trial, it would have been proper for the defendant to have shown that at any time during the same period he had been guilty of improprieties of the same character with those committed by the defendant."

In Gulerette v. McKinley (27 Hun, 320) the action was for an assault with intent to rape, and it was held that the injury to the plaintiff's feelings, being an element of damages for which she was entitled to compensation, specific acts of lewdness on her part with other men might be shown by way of limiting damages. The court in that case said that evidence of this kind “tended to reduce the actual damages sustained by the plaintiff,” and was admissible although not specifically pleaded, citing Wandell v. Edwards (25 Hun, 498), which in turn cites with approval Bracy v. Kibbe (31 Barb. 273) and White v. Murtland (71 Ill. 250). (See, also, Crandall v. Barron, 57 Hun, 259; affd., 127 N. Y. 690; Allen v. Besecker, 55 Misc. Rep. 366; Watry v. Ferber, 18 Wis. 502; Mitchell v. Work, 13 R. I. 645.)

In Gressman v. Morning Journal Association (197 N. Y. 474) the court held that damages given as compensation in libel cases should be precisely commensurate with the injury, but, as the amount of damages is peculiarly within the province of the jury, the jurors may consider how far the truth of portions of a libelous article tend to show that the plaintiff ought not to have that amount of compensation, which he might justly claim if his reputation had been unaffected by the facts proved. The court, among other things, said (p. 480): “If some of the things said of the plaintiff were shown to be true, their truth, if establishing misconduct, should be allowed to affect the amount of the damages, which, otherwise, the jurors

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