Funk v. Evening Post Publishing Co.

PARKER, J.,

(dissenting.) Assuming, as do all the members of the court, that the learned trial judge was right when he instructed the jury that the plaintiff was entitled to recover nominal damages, we have presented a case where the refusal to give the plaintiff that which was absolutely his due has resultéd in a judgment which, so far as the record is concerned, adjudges the alleged libelous matter to have been true, and awards to the defendant, against the plaintiff, a judgment of over $800 for costs,—an unjust result, certainly. Were there no decisions seeming to point the way to am affirmance of the judgment entered on such a verdict, we would, I think, have no difficulty in reaching the conclusion that a verdict having the effect to declare that to be true which was in fact libelous, and carrying with it a judgment against the plaintiff of over $800, where rightfully nothing should have been awarded, should be set aside. Had the first verdict ever rendered in favor of a defendant, where the plaintiff was entitled to recover nominal damages, carried with it a judgment for costs against the plaintiff of over $800, it may well be doubted whether the court would have considered it one of the trifles of which courts will not take notice. Whether that assumption be well founded, however, is of no practical moment, because it must be conceded' that the cases cited in the opinion, presenting the views of the majority of the court, as well 'as others which might have been referred to, seem to establish the rule that where only nominal damages are involved the courts will not set aside the verdict because against the weight of evidence. An exception to the ride equally well established is that when, in addition to the question of nominal damages, there is involved some property right which is affected by the erroneous verdict, it will be set aside. As some of the cases to which our attention has been called are libelous, the question has-not been considered, so far as we have discovered, whether injury to reputation, which in a greater or less degree results from a libelous- publication, is of such a character as to bring it within the exception to the general rule to which we have referred. Certainly, there is nothing which a right-minded man possesses that he values more highly than a good reputation, and a good name proves every day to be of practical value to its possessor. Anything which unjustly tends to destroy or injure it in the slightest degree interferes with and affects a substantial right,—a right to the enjoyment of, *1093and to the benefits accruing from, a good name. A verdict for a defendant when plaintiff is entitled to nominal damages for trespass will not be reversed, if the action involves nothing else, but if the title to the land trespassed upon be involved, however small its value, the result is otherwise; and no good reason suggests itself why the same rule should not apply when a permanent injury may result to the reputation of an individual. If he has been libeled, although a jury may differ with him as to the extent of the damage done, he has the right to have his reputation freed for all time from whatever cloud the libelous article may have thrown about it. I advise a reversal of the judgment.