68 P.2d 168 (N.M. 1937), 4173, Curry v. Journal Pub. Co.

Docket Nº:4173.
Citation:68 P.2d 168, 41 N.M. 318, 1937 -NMSC- 023
Opinion Judge:BRICE, Justice.
Party Name:CURRY et ux. v. JOURNAL PUB. CO. et al.
Attorney:J. H. Paxton, of Las Cruces, for appellants. Mechem & Hannett, of Albuquerque, for appellees.
Judge Panel:HUDSPETH, C.J., and SADLER and ZINN, JJ., concur. BICKLEY, J., did not participate.
Case Date:May 03, 1937
Court:Supreme Court of New Mexico

Page 168

68 P.2d 168 (N.M. 1937)

41 N.M. 318, 1937 -NMSC- 023

CURRY et ux.



No. 4173.

Supreme Court of New Mexico

May 3, 1937

Appeal from District Court, Dona Ana County; George W. Hay, Judge.

Action on the case by Clifford Curry and Angelita Curry, his wife, against the Journal Publishing Company and others. From a judgment for defendants after demurrers to the complaint were sustained, plaintiffs appeal.

Affirmed and remanded.

J. H. Paxton, of Las Cruces, for appellants.

Mechem & Hannett, of Albuquerque, for appellees.

BRICE, Justice.

This is an action on the case. The substance of the material facts alleged in the complaint are as follows:

The defendants (appellees here), in the year of 1932, published the Albuquerque Journal, a daily newspaper, circulating generally in New Mexico. On the 12th day of April, 1932, they published in that newspaper as a news item the following words:

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"Hillsboro, N. M., April 11, (AP)--George Curry, 70, former territorial governor of New Mexico, Spanish-American war veteran and ex-congressman, died here Sunday afternoon."

The published statement was false. George Curry was not dead, but was alive and in good health at the time. The George Curry mentioned in said article was and is the father of the plaintiff, Clifford Curry, who read said published statement regarding his father, with the result that he suffered great pain and anguish, and which caused a nervous shock, resulting in a heart attack. His health is permanently impaired to the extent that he is unable to perform labor, all brought about by his reading the false published statement. The plaintiff Angelita Curry is the wife of plaintiff Clifford Curry. She also suffered a physical shock and prostration from reading the article, resulting in the permanent impairment of her health, by reason of which she cannot perform physical labor, is unable to bear children, and has suffered great pain and anguish. She was pregnant at the time she read such article, and the child, born the following June, was so permanently injured by reason of the shock to its mother that through life it will be sick, decrepit, timid, hysterical, and suffering. Specific items of expense incurred, such as physician's bills, loss of time, trips, etc., are set out. Total damages were claimed in the sum of $13,592.

The parties will be styled plaintiffs and defendants, as in the district court.

The defendants demurred separately to the complaint upon the ground that it stated no cause of action; and the demurrers were sustained by the court. Plaintiffs refusing to amend, the suit was dismissed, and appeal to this court allowed and perfected.

No objection was made to the complaint because of misjoinder of causes of actions; nor for failure to separately state causes of action; nor because the defendants were not specifically charged with negligence. The appellees content themselves with raising the vital questions that determine the case; two of which are decisive: (1) Are damages that result from words negligently spoken or written, as distinguished from acts, actionable? and, if so, then, (2) Can damages be recovered from the publishers of a newspaper for the consequences of grief resulting in physical injury, occasioned by reading in such paper a negligently published false report of the death of the reader's parent?

We have found no precedent in the books for this suit, and only two cases that are similar. This is conceded by appellant, but he asserts that, though this be true, such absence of precedent is not conclusive that the right claimed does not exist. To this we readily agree ( Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am. St.Rep. 104, 2 Ann.Cas. 561); but it suggests that the existence of such right is not probable, in view of the fact that thousands of similar negligent acts must have occurred in the business of publication of news in this country, and Great Britain and its dependencies, causing grief and worry; though the disastrous consequences here charged (and which we must accept as true) are not, in human experience, usual or probable.

We have stated there are two similar cases. We first make reference to Jaillet v. Cashman, 115 Misc. 383, 189 N.Y.S. 743, 744. The facts as stated in the opinion are as follows:

"The defendant is the treasurer of Dow, Jones & Co., an unincorporated association engaged in the business of supplying its subscribers with items of current news by what is known as a ticker service. On March 8, 1920, it incorrectly reported the effect of a decision of the United States Supreme Court on the taxable status of stock dividends as income. Plaintiff saw the report on a ticker in his broker's office, and, believing that prices were going down, he sold stocks instead of holding or buying. That was unprofitable because the market rose on receipt of a correct report of the decision, and the plaintiff figures out a loss that he claims is attributable to the incorrect report that he read."

From these facts, the court concluded:

"I think that the relation of the defendant association to the public is the same as that of a publisher of a newspaper, and that its duties and obligations are to be measured by the same standard. A mistake in the report of a fact by one or the other is different in its effect only as to the number of people who may be misled and the extent to which individuals may be misled a matter of degree only.

"There is moral obligation upon every one to say nothing that is not true, but the law does not attempt to impose liability

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for a violation of that duty unless it constitutes a breach of contract obligation or trust, or amounts to a deceit, libel, or slander. Theoretically a different rule might be logically adopted, but as a matter of practical expediency such a doctrine seems absolutely necessary. There is no privity between this plaintiff and the defendant. He is but one of a public to whom all news is liable to be disseminated. His action can be sustained only in case there was a liability by the defendant to every member of the community who was misled by the incorrect report. There was no contract or fiduciary relationship between the parties and it is not claimed that the mistake in the report was intentional. The demurrer to the complaint is sustained, and judgment awarded dismissing the complaint, with $10 costs and costs of the action."

The case was affirmed by the Appellate Division (202 A.D. 805, 194 N.Y.S. 947) without an opinion; and upon appeal to the Court of Appeals the judgment of the Appellate Division was affirmed by memorandum opinion (235 N.Y. 511, 139 N.E. 714) with the following statement: "The plaintiff, a customer in a broker's office having ticker service, believing that this report would depress the value of securities, sold some of his own stock and sold 'short' other stock which he did not own; that as a matter of fact the Supreme Court had decided that stock dividends were not taxable, and the defendant corrected its false report 45 minutes after it had been issued; that before this correction the stock market had reacted, and the appellant suffered damages. The Special Term held that the relation of defendant to the public was the same as that of a publisher of a newspaper and that it was not liable to one with whom it had no contract or fiduciary relationship for an unintentional mistake in its report."

The New York courts evidently assumed that the legal principles supporting their conclusion that no such right existed, in the absence of a contract, fiduciary relationship, or intentional injury, were so well established that it was unnecessary to more than state the conclusion without giving reason or authority therefor. We might well follow this example; but appellant's exceptionally good presentation of their case, and apparent abiding faith that a cause of action had been stated, impels us to give our reasons for sustaining the judgment of the district court.

The other case referred to is Herrick v. Evening Express Publishing Co., 120 Me. 138, 113 A. 16, 17, 23 A.L.R. 358, the facts in which are quite similar to those in this case. The defendants in that case had published in their newspaper an account of the death of a boy then serving in the American Expeditionary Forces overseas, and in connection therewith a picture of another boy of the same name, who likewise was in the Army...

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