(dissenting):
The corporation that owned and published “ The Evening Mail,” must be presumed to have clothed its agents with full power to originate, select or “appropriate” and publish whatever matter they should deem best for the general, and especially for the pecuniary interests of that newspaper. In these regards the management of the newspaper was wholly committed to their discretion.
The falsity of the libel was sufficient evidence of malice; and such malice is imputable to the corporation, because the publication was, in law, its own act, performed by its servants in the business it was created to carry on ; and not by any willful departure from such business for the private and individual purposes of the servants.
The libel being false, the malice imputable from the act of publication is a part of the res gestee from which the action arises. Nearly all the principal newspapers of the day are carried on by corporate and not by individual enterprise; and I think the law does not recognize any difference of responsibility between such ownership and that of individuals. Such corporations are capable of legal malice, and it should be imputed to them by the law whenever it would be to individual ownership.
The plaintiff in an action of libel gives evidence of malice whenever he proves the falsity of the libel. It becomes, then, a question for the jury whether the malice is of such a character as to call for exemplary or punitive damages; and that question is not to be taken away from the jury because the defendant gives evidence which tends to show that there was, in fact, no actual malice. When he gives no such evidence it is the duty of the court to say to the jury that, upon proof of the falsity of the libel, the plaintiff is entitled to exemplary damages in their discretion. (Tillotson v. Cheetham, 3 Johns., 56; and see opinion of *295Kent, Ch. J., in same case; Taylor v. Church, 8 N. Y., 452, where the rule of Tillotson v. Cheetham is approved; Hunt v. Bennett, 19 N. Y., 173.) But where he gives evidence tending to prove the absence of actual malice, then it is the duty of the judge to submit to the jury the question, as one of fact, whether such malice existed in the publication. This is what the learned judge did on the trial of this case; and I think it is a mistake to say that there was no evidence calling for such a charge.
The railroad accident cases, cited by my brother Beady, seem to me to have no bearing upon the question in this case. They hold that a railroad corporation is not chargeable with exemplary, damages in cases of accidental injuries because their agents were guilty of gross negligence, but that facts must be shown which charge the corporation itself with gross negligence — such as knowledge of the ineompetency of the agent from bad habits, or other known causes, rendering him unfit for the employment. (Cleghorn v. N. Y. Central Railroad Co., 56 N. Y., 44; 47 id., 282.) But in libel cases, the falsity of the libel being proof of malice sufficient to uphold exemplary damages, the right to recover them in the discretion of a jury, rests in the very act done in the publication of the false libel; and whoever is chargeable with that act is chargeable with the legal consequence, which is the right of the jury to redress the injury by imposing reasonable damages beyond any injury actually shown. There is no doubt the corporation is chargeable with the act of publication.
In the one class of eases (the railroad injuries), the damages are easily measured by the physical injuries suffered, and they may be made completely compensatory by a jury ; but in the other class, where the injury is to character, it is almost impossible to measure it by fixed standards. The damages must be largely discretionary; and the question how far malice shall affect that discretion must be left to the sound judgment of a j ury. In submitting the question of malice, in this case, to the jury, I think the learned judge did not err; and although the damages in this case seem to me to be larger than the evidence called for, I think there is no legal ground to justify our interference.
Judgment reversed, new trial ordered, costs to abide event.