[1] The only question in this case arises in connection with the charge. The learned justice thus instructed the jury:
“So much with respect to compensatory damages. Now I come to speak of exemplary, punitive, or vindictive damages, or, as it is sometimes termed, ‘smart money.’ In order to give punitive damages, it must be proved that this publication, in addition to being false, was published either from actual malice — that is, from personal ill will entertained by the defendant against the plaintiff — as distinguished from legal malice, which is' deemed to accompany every invasion of the rights of another, or else that it was published recklessly, carelessly, or with wanton disregard of the rights of the plaintiff. In determining this question, you may consider the nature of the publication itself, and jou may compare it with the report of the representative of the news agency on which it purported to be based. In this connection, I wish expressly to say to you that the plaintiff, in an action for libel, gives evidence of malice whenever he proves the falsity of the charge. It becomes then a question for you whether the malice is of such a character as to call *661for exemplary or punitive damages; and that question is not to be taken away from you because the defendant gives evidence which tends to show that there was in fact no actual malice or ill will. When no such evidence is given, the-^plaintiff, upon proving the falsity of the libel, is entitled to exemplary damages in the discretion of the jury. Where, however, as in this case, the defendant gives evidence tending to show absence of actual malice, then it becomes the duty of the jury to determine as a question of fact whether or not such malice did in fact exist or did not exist in the publication.”
The charge, taken in its entirety, is correct. In stating to the jury the rule relating to punitive damages, the trial justice used the expression “actual malice,” defining it, and “legal malice,” defining it. Subsequently he said:
“I wish expressly to say to you that the plaintiff, in an action for libel, gives evidence of malice whenever he proves the falsity of the charge.”
It is perfectly apparent that he is here speaking of legal malice, and this statement is correct. Newell on Slander & Libel, §§ 385, 392, 401; King v. Root, 4 Wend. 113, 21 Am. Dec. 102. Not only do the words immediately preceding indicate this, but his succeeding sentence makes it absolutely clear, where he says:
“It becomes then a question for you whether the malice is of such a character as to call for exemplary or punitive damages.”
That is, is the “legal malice” of such a character that you may find it to be “actual malice”? The court had told the jury that, to give punitive damages, they must find “actual malice” or its equivalent. He was right in saying that it would not be enough for defendant to show that there was no actual malice, in the sense of ill will. It might be that the character of the article, its reckless, careless, and wanton disregard of the rights of others, indicated by the circumstances of this publication, would justify such a finding. Newell on Slander & Libel, § 418; Carpenter v. New York Evening Journal Publishing Co., 111 App. Div. 266, 97 N. Y. Supp. 478. We think that this was such an article.
[2] The concluding words of the charge, as given, left it to the jury to determine as a fact the existence of actual malice. The charge might have been a little clearer. But; if it was ambiguous, it was the duty of defendant’s counsel to have it made clearer. Roth v. Wells, 29 N. Y. 471, 486; Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Jones v. Brooklyn Life Ins. Co., 61 N. Y. 79, 86; Bishop v. Village of Goshen, 120 N. Y. 337, 342, 24 N. E. 720. To simply ask a court to “correct his charge,” without stating in what respect it was insufficient, is not available to present the question, even if the exception was sufficiently definite. Copp v. Hollins, 9 N. Y. Supp. 57, 59.1
The judgment and order should be affirmed, with costs.
STAPLETON and RICH, JJ„ concur.