[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 85
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 86 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 88 The recovery in this action was for libel and slander. That the letter to Aldrich Co. was libelous on its face is not now disputed. Whether it was true or not was a question of fact upon which the jury have passed, and upon evidence sufficient at least to put their conclusion beyond our review. The only other defense asserted is that of privileged communication. The question, however, was not effectively raised. At the beginning of the trial, before any evidence had been given, and in the entire absence of the facts and circumstances attending and characterizing the letter, the defendant objected to any evidence being given, on the ground that the letter was a privileged communication, which objection was overruled and an exception taken. It is not even now contended that this ruling was wrong, made at a time when there *Page 89 was nothing before the court upon which the question sought to be raised could be determined, but it is sought to broaden the motion for a nonsuit, made at the close of plaintiff's case, by making it relate back to these preliminary objections and transferring them by an intendment or inference into the grounds of nonsuit actually stated. These were, so far as the count for libel is concerned, that "no proof had been given to sustain it; that if the letter was not a privileged communication, the proof showed that plaintiff had sustained no damage by reason of it, and the letter was not libelous on its face." This objection not only does not raise the question now sought to be argued, but practically concedes and abandons the point; and nowhere else during the progress of the trial was it again referred to. No ruling was sought or obtained from the court as to whether the letter was written upon excusable occasion, and was privileged in view of the circumstances in which it originated. That question only was for the court, and was not raised in such manner as to be now before us. The question of good faith and belief in the truth of the statement was for the jury. (Hamilton v. Eno,81 N.Y. 122.) We may therefore, dismiss any further consideration of the letter except as it becomes connected with questions which concern likewise the alleged slanderous words.
The defendant contends that these were not actionable per se. They consisted substantially of a charge that the plaintiff was selling or offering for sale to a cheese factory the milk of his dairy which was poisonous and impure by reason of his suffering a mare, having a sore upon its neck discharging filthy and putrid matter, to run in the pasture with his cows, and drink from the same water, and share in the same food. The court did not charge that these words constituted an accusation of an indictable offense, unless the jury found as a fact that the impurity and poisonous quality of the milk was a necessary consequence of the facts related and detailed. Assuming that to be true, and the defendant so claimed upon the testimony of experts called by himself, the accusation became one of selling and offering for sale poisonous and impure milk, rendered so by *Page 90 causes which necessarily produced such impurity and which were wholly within the plaintiff's control. Such an act constituted a misdemeanor. (Laws of 1864, chap. 544, §§ 1 and 2.) One who shall "knowingly sell or exchange, or expose for sale or exchange, any impure, adulterated or unwholesome milk," or "who shall keep cows in a crowded and unhealthy condition, or feed the same on food that produces impure, diseased or unwholesome milk," is guilty of a misdemeanor. The accusation here was that the plaintiff had delivered to the cheese factory poisonous milk, was preparing to do so again, and was giving his cows food and water contaminated with poisonous and unwholesome elements, and the charge did relate to the production of unwholesome milk and its sale or exchange as such. The ruling was certainly not erroneous as against the defendant.
It is contended that the accusation was not slanderous because explanatory words were used which showed that there was an expression of opinion merely as to the consequences of plaintiff's action. But what are called the explanatory words were the very seat of the slander and the origin of its force and power to harm. Instead of an explanation tending to modify and render innocuous the charge of selling impure milk, it was one which strengthened and intensified the charge by stating the facts from which, on the theory we are now considering, such impurity followed as a natural and necessary consequence. We find no error, therefore, in the ruling of the court as to the actionable character of the slanderous words.
But since, under the charge of the court, the jury were at liberty to reach their conclusion upon the ground that the words spoken were not actionable per se, because the impurity of the milk was not the necessary consequence of the exposure of the cows to poisonous food and drink, it becomes necessary to consider the case in connection with the subject of special damage. Upon this latter hypothesis the court charged that special damage must be shown, and held on the motion for a nonsuit, that prima facie it had been established. It was shown that three different cheese factories refused plaintiff's milk, assigning *Page 91 as a reason the charge made by Harison and his threat to institute proceedings if his warning was disregarded. There was enough in these facts to require a submission of the question to the jury.
It is, however, again said that explanatory words were used, and that Harison gave merely an opinion founded upon facts, and since we are to assume now that the impurity of the milk was not an inevitable result of the facts detailed, it follows that others might, and the proofs show that they did, reach a contrary conclusion. But these facts tended to show that the milk was impure. They certainly cast suspicion upon it, in and of themselves; and if falsely stated, were calculated to do the plaintiff as much injury, and harm his reputation as a man and in his business as severely, as if the impurity of the milk he sold was a certain instead of a probable result. So that outside of mere opinion, facts were stated which naturally led to the injurious inference. which were intended to point that way, which were followed by the inference distinctly drawn, and which accomplished the meditated result. Enough was shown to warrant the conclusion of special damage sustained.
But it is argued that the superintendents of the cheese factories refused plaintiff's milk because of Harison's threat to prosecute and not because they believed the milk to be impure. But the threat to prosecute got all its force from the facts narrated as its basis. It showed a possible foundation on which complaint could rest, and a door open to an opinion possibly different from their own, if, as the appellant claims, they really did believe in the purity of the milk. How far they were influenced by the threat alone, and how far by the facts detailed is very much a matter of speculation. It is enough that the only legal proposition which the defendant asked the court to charge on this branch of the case was charged as requested, the learned judge saying that the plaintiff could not recover for a refusal occasioned by Harison's threats.
The remaining exceptions are aimed at the charge relating to punitive or vindictive damages. That such might be awarded in a case of this character is not denied, and what was said of *Page 92 the injury to plaintiff's feelings and of a warning to others had relation to exemplary damages alone. It was not pretended that those considerations were elements of the actual damages founded upon the idea of compensation, but when the jury got beyond that, they might if they found the wrong to be malicious and intentional give exemplary damages, in determining which they might consider the injury to plaintiff's feelings and have respect to the force of the example. We think the charge was not erroneous in these respects. (Taylor v. Church, 8 N.Y. 452;Hunt v. Bennett, 19 id. 175.) For such purpose the jury must necessarily be left to consider all the facts of the case.
While the damages awarded by the jury may seem and may be disproportioned to the offense, and their conclusion upon the facts not beyond criticism, we cannot interfere with the judgment which they exercised.
The judgment should be affirmed, with costs.
All concur, except RAPALLO, J., absent.
Judgment affirmed.