X.

SUPERIOR AND COMMON PLEAS COURTS.

Kahn v. Times Star.

605

business or trade. For instance a man's reputation in business may be so good as to be firmly established in public confidence, so that it can not well be injured by any such publication as that of which the plaintiff complains; or it may be so bad as to be incapable of serious injury therefrom; or while good, yet not so firmly established in public esteem as to prevent injury resulting to it. The law presumes every man's reputation as a tradesman to be good until the contrary is made to appear. The testimony on that subject must be carefully weighed and considered. If you find the publication a libel, as the term has been defined, it will be left to you after all to say to what extent, under all the circumstances and evidence, his reputation in business has been damaged thereby, and to what extent he has been damaged in his trade and business, subject only to the propositions of law which have been suggested by the court.

A man's known reputation in the community or general estimation in which he is held in the business community, where he lives and moves and is known, while it is the resultant of the opinion of all, it is not the individual opinion of any particular person or persons. You will decide what the known reputation of the plaintiff was at the time of this publication, for in view of all the evidence you are limited to his business reputation, and you can not go into particular acts.

There is no way of reaching a correct conclusion in cases like the one on trial except through the good judgment of the jury. The law, therefore, permits the jury to take such a view of all the facts and circumstances, properly in evidence, in the assessment of damages and as may appear fairly from the preponderance of the evidence. It may appear to you that the publication complained of was made only with such malice as the law implies from the mere doing of a wrongful act, which is recognized in the law as implied malice; or with an actual evil intent or express purpose to injure; or that it was not only false, but known to be so by the defendant at the time of the publication itself, or wantonly made without inquiry or information upon which the defendant was fairly justified in relying; or that there was nothing in the character, conduct or position of the plaintiff to palliate or excuse such publication. It may appear to you, on the contrary, that while the defendant may not convince you that he should escape the actual consequences of the alleged libelous matter, if wrongful in fact, yet there was no actual malice on the part of the defendant, no real or conscious intent to injure, no bad motive; that though in fact false, the defendant in making the publication acted upon information on which he was fairly justified in relying; that there was more or less truth, or a greater or less approach to the truth in this publication, or that there was something in the business reputation of the defendant, or in the methods of doing business or in the character of the business itself, or in any reports which may have existed in police circles, or in the letter as introduced in evidence-any such infor

606

OHIO DECISIONS.

Superior Court of Cincinnati.

Vol.

mation may have reached the defendant prior to the publication itselfto palliate in a greater or less degree, or excuse in a greater or less measure the publication itself.

In case you find all or any of the circumstances last mentioned to have existed, while they do not make out a complete defense to entitle the defendant to a verdict-if you first find the publication in fact to be libelous-they are yet matters which you have a like discretion to consider and diminish your assessment of damages accordingly, in case you award damages to this plaintiff at all. These, in legal definition, are termed mitigating circumstances.

In ascertaining whether there were mitigating circumstances, or whether there were aggravating circumstances, it will be proper for you to consider all the evidence, direct and circumstantial, in order that you may reach a correct conclusion. It is the province of the court to instruct you of the law; it is the province of the jury to analyze and weigh the evidence. It is the province of the court to pass upon the competency of the testimony; it is the province alone of the jury to weigh that testimony.

The defendant, in its amended answer, pleads as a second defense that an agreement was entered into by the plaintiff and defendant, through counsel. It is a good defense to an action for libel, that if after the publication the plaintiff agreed with the defendant to accept the publication of an apology in full for his cause of action, and that such an apology had been published. The burden of proof, however, in such a defense as is alleged in the amended answer is upon the defendant, to show that such an agreement was made, and that there was a good consideration for the same, and that it was carried out in good faith, and that the plaintiff so agreed to accept such retraction in full satisfaction of any claim which he may have had by reason of the publication. The evidence on this point must be governed by the proposition of the law as I have indicated it. A mere naked promise in the case, unsupported by a consideration, is not of itself sufficient to maintain such a defense.

It will be your duty, gentlemen of the jury, to consider all the evidence that has been adduced in this case and apply your best judgment to all the facts and circumstances presented by the evidence under the law which has been given you by the court. The law will not be satisfied with anything less than a faithful discharge of the obligations which you assumed when you took the oath to render a true verdict according to the law and the evidence in this case.

The plaintiff has asked for certain special charges, which will be given, as follows:

"1. If defendant published the article in manner and form as alleged in the petition, and the jury should find the same libelous, and injury and damage to his business and general business character directly

Kahn v. Times Star.

resulted to the plaintiff from and by reason of such publication, he will be entitled to recover damages, and in awarding to him any compensatory damages, if he is entitled to such, you may take into consideration and include reasonable fees of counsel, employed by plaintiff in the preparation and prosecution of this action.

"2. If you find that the publication was libelous and that there was express malice, or a bad motive and an evil intent to injure in the publication, you may go beyond mere compensation and award vindictive or punitive damages to the plaintiff; that is, damages by way of punishment, and the jury in its discretion can determine what such damages should be.

"3. I charge you that, unless the article published in its entirety was true, in fact the law implies malice if it should be found that the article in question is libelous, and liability will attach, and the plaintiff can recover damages from the defendant.

"4. I charge you that, if you find the article in question libelous, and that such libelous publication concerned the business reputation of the plaintiff, or trade of the plaintiff, by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, or unfitness, an action will lie without proof of actual malice, or of actual pecuniary loss, and the jury can determine the amount of damages to be allowed to the plaintiff. And in determining such damages the jury may take into consideration the reputation of the plaintiff as to the particular business in which he was engaged, as well as the character and methods of the particular business or trade in which he was engaged. The publication of defamatory matter libelous of itself is presumed to be malicious in law, unless nublished in performance of some legal or moral duty.

"5. All the testimony that the defendant, The Times-Star Company, has offered, with reference to the conduct of the plaintiff's business, or in other words, as to the manner in which he did business at the corner of Seventh and Vine streets can not be considered by you to justify the publication of this article, if the article should be found to be libelous, but, if considered by you, must be only taken in connection with all the testimony and facts and circumstances in the case, to mitigate or lessen the damages that you may find the plaintiff is entitled to recover."

I will also give you the following special charges asked for by the defendant:

"1. If, from a fair preponderance of the evidence the publication appears to be true, the jury may, in view thereof return a verdict for nominal damages only.

"2. If you find it to be a fact that the plaintiff in his business sold goods which he represented to be tailor-made goods, made on special orders, but which were in fact what is known as ready-made clothing, you may take that fact into consideration by way of mitigation of the damages claimed for injury to plaintiff's business."

608

OHIO DECISIONS.

Superior Court of Cincinnati.

The defendant has also asked me to give the following charge:

Vol.

"3. If you find the plaintiff's business consists in the sale of goods which he represented to be custom or tailor-made goods, made on special orders, but rejected because of misfits, but which were in fact what is known as ready-made clothing, then you can not award him damages for loss or injury to his said business."

Which I decline to give, but will give you in place thereof the following:

"If you find that the plaintiff's business consists in the sale of goods which he represented to be custom or tailor-made goods, made on special orders, but rejected because of misfits, but which were in fact what is known as ready-made clothing, then you can take all these facts and circumstances into consideration in ascertaining what damages, if any, he may have sustained; but, it will be your duty to ascertain whether or not the publication was libelous before any damages can be awarded.”

Counsel for defendant also requested the court to give the following special charges, which the court refused:

"1. If you find that in plaintiff's said business he sold goods which were what were known as ready-made goods but which he represented to be what is known as tailor, custom-made, goods, made on special orders and rejected because of being misfits, you can not allow to him in this case any damages for loss or injury to his said business.

"2. The measure of damages for loss to business is not the amount by which sales may have fallen off, but the loss of the profits which plaintiff would have made on such lost sales. You must find from the evidence what that profit was, and must also find that the falling off of sales was due to the publication complained of; and in estima ing the loss of trade or business you will take into consideration all the evidence."

Counsel for defendant excepted to the action of the court in refusing to give the special charges requested by defendant; and to the special charges given at plaintiff's request; and to the modifications of special charge asked by the defendant and made by the court.

Mr. Kramer: "We except to each and every one of the special charges given for the defendant. Except to that part of the general charge which says that nominal damages can not be over one cent; we except to the amended charge as to nominal damages, unless the court defines what nominal damages consist of. We except to that portion of the charge in which the court says the jury may take into consideration the business reputation of the defendant prior to the time the article complained of was published; and that it was the duty of the court to charge that the jury must find that the business reputation of the defendant was good before the article complained of was published; that the jury have no right to find that it was not good in this case."

Counsel for plaintiff asked the court to give the following special charges to the jury:

Kahn v. Times Star.

"I. I charge you that you must presume the general business reputation, in this trade, of the plaintiff prior to the publication of the article complained of to have been good, and no testimony having been offered by the defendant to rebut that presumption I charge you for the purpose of this case, the jury have no right to find that the general business reputation in this trade in the community of the plaintiff was not good prior to this publication.

"2. I charge you that I inadvertently erred in charging you before that you have a right to take into consideration the plaintiff's business reputation in his business prior to the publication of this article. I charge you now that you have no right to take that into consideration, but it must be presumed to be good by you."

Which charges the court refused to give, and to which refusal counsel for plaintiff then and there excepted.

And thereupon the court gave the following additional charge to the jury:

"I charge you that the former business reputation of the plaintiff is not to be considered by you in estimating damages. The business. reputation of the plaintiff is presumed to be good, but such presumption may be rebutted by evidence; and if the jury find from the evidence that he has suffered damages to his reputation in business by the reason of the alleged publication, if libelous, they may award such damages as may seem proper under all the circumstances, otherwise not.

"It was said to you a moment ago on the question of nominal damages, as excepted to by counsel, that they should not exceed one cent. This is an inadvertence or error in the charge. The amount awarded for nominal damages must rest in the sound discretion of the jury and may be only nominal in amount. So where it was stated that it could not exceed one cent, it will be eliminated from the charge. Nominal damages rest solely in the discretion of the jury and may be simply nominal in amount."

Counsel for plaintiff requested that the special charges go into the jury room, to which counsel for defendant objected, which objection the court sustained, to which ruling counsel for plaintiff then and there excepted.

Whereupon the jury retired to consider of their verdict, and returned a verdict for plaintiff, as appears of record. Whereupon the defendant filed a motion in writing to set aside said verdict and for a new trial on the grounds set forth in said motion, as also appears of record, which motion the court overruled, to which defendant excepted, and rendered judgment, all as appears of record, to which defendant excepted. And thereupon defendant presented this, its bill of exceptions and asked that the same be allowed, signed, sealed and made part of the record, which is now done, at said term.

39 S. & C. P. Vol. 10.