Beardsley v. Kilmer

• Decision Date: 29 May 1923
• Citation: 140 N.E. 203,236 N.Y. 80
• Parties: BEARDSLEY v. KILMER et al.
• Court: New York Court of Appeals Court of Appeals

236 N.Y. 80

140 N.E. 203

BEARDSLEY

v.KILMER et al.

Court of Appeals of New York.

May 29, 1923.

Action by Guy W. Beardsley against Willis S. Kilmer and others. From a judgment of the Appellate Division (200 App. Div. 378,193 N. Y. Supp. 285) affirming a judgment for defendants entered upon dismissal of the complaint by the court at a Trial Term, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third department.

Frederick Collin and Halsey Sayles, both of Elmira, for appellant.

Lewis E. Carr, of Albany, and Thomas J. Keenan, of Binghamton, for respondents.

HISCOCK, C. J.

For many years prior to 1904 the defendant Kilmer and his father were the substantial proprietors, first, under the form of a partnership, and, thereafter, of a corporation in the city of Binghamton of a very profitable business engaged in manufacturing a patent medicine known as ‘Swamp Root.’ The defendant Hadsell was associated with them in the business, having a small interest therein. In 1895 the plaintiff became the general manager of a paper known as the Evening Herald and which was owned by a corporation known as the Herald Company. A few years later he became a majority holder of the stock of said corporation and so continued until the discontinuance of the paper in 1910.

For some reason not disclosed in the evidence the Herald under the management of plaintiff devoted considerable attention to the Kilmers and their affairs. Many articles were published concerning them, and while erroneously and disadvantageously for the defendants, although on their objection, many of these articles were kept out of the evidence, it sufficiently appears that they were not complimentary to the Kilmers and that at least one or more of them were devoted to casting ridicule upon the medicine which they were manufacturing. As the result of these articles the Kilmers, and especially the defendant, became much incensed at plaintiff, and, while they showed a perfect readiness to forget bygones if the Herald would cease what were regarded as unwarranted attacks, they, on the other hand, repeatedly threatened in effect to drive the Herald and plaintiff out of business if such attacks were not stopped. The plaintiff refused to change his course, and in 1904 the Kilmers and Hadsell did as they had threatened and started a new newspaper in Binghamton known as the Binghamton Press. The managers of this new paper hired and attempted to hire employees then working for the Herald and attracted away from that paper to itself subscribers and advertisers. The result of it all was that plaintiff was compelled from time to time to reduce the compensation which he had been receiving, and in 1910 the Herald went out of business and he lost his place.

Evidence was given by various witnesses that in addition to and in connection with the threats made by the Kilmers to injure the business in which plaintiff was engaged, they gave other reasons and purposes leading to the establishment of their paper. One witness stated that defendant Kilmer claimed he had been connected with the newspaper business for a number of years and was thoroughly conversant with it and proposed to go into the Binghamton newspaper field with the Binghamton Press and to make it the best paper in the city, ‘one that would dominate its field.’ To another witness Mr. Kilmer stated:

‘That he could not stand that abuse (of the plaintiff) any longer * * * that a person had no defense against attacks of a newspaper except to own a paper and control it,’ and again that he was ‘going to give Binghamton the best paper in the state outside of the large cities.’

And again he said that the Herald ‘said unfair things about him, * * * that he always wanted to have a newspaper, * * * and he thought that Binghamton would appreciate a good newspaper, * * * and he wanted to give Binghamton the best paper in the state of New York.’ And on still another occasion the other Kilmer stated that the plaintiff had treated his son and himself ‘shamefully, scurrilously, scornfully, and had continued to do it.’

There is no evidence or claim that the paper founded by respondents was not an enterprising, creditable, and reputable paper, or that it was unsuccessful or unprofitable. It was continued by the original owners for about two years after the Herald suspended, and then the defendant Kilmer sold his interest to the other defendant who had been associated in its management from the commencement and who so far as appears is still publishing it. Neither is there any evidence that defendants in starting and conducting this paper performed any acts which were inherently unlawful. While there is the evidence to which we have alluded that employees were hired away from the Herald and that subscribers and advertisers were attracted from it to the new newspaper, there is no proof that any methods forbidden by law were adopted to accomplish these purposes.

Under these circumstances, this action was commenced against the defendants, the father having died before the commencement of the action, alleging at considerable length and with much detail the formation of a conspiracy to injure plaintiff and seeking to recover damages for his loss of position and compensation as the result of the failure of the Herald and which had been caused by the conduct of defendants in starting the Press.

The plaintiff encounters two preliminary questions which will be disposed of very briefly. It is argued that he has no cause of action against defendants for loss of position and compensation sustained as the result of the failure of the Herald; that any wrong was directed against the Herald, and that his loss was indirect and remote; also, that any cause of action which he might otherwise have is barred by the statute of limitations. Without discussion of these questions, we are inclined to think that they should be decided in favor of the plaintiff, and we shall so assume for the purposes of this discussion, and this brings us to the consideration of the important question whether defendants are liable for any damages which plaintiff suffered because the paper upon which he was engaged failed under the competition of the new paper started by defendants. This concededly involves a consideration of motives and of the general question when an inherently lawful act will be held actionable because of the impulses which lead to its performance. The answer to such a question may easily be determined by slight circumstances, and we ought to have clearly in mind the facts upon which we are basing our answer in this case.

From the evidence which has been summarized we have no doubt that a jury would have been permitted to say that one of the purposes of the defendants in establishing their newspaper was to punish and take revenge upon the plaintiff for what were regarded as his unjustifiable attacks upon them. But we think it also appears from plaintiff's evidence without contradiction or suspicion of untruthfulness that the defendants had the purposes in establishing their newspaper to protect themselves from the plaintiff's attacks and to establish a perfectly legitimate business enterprise which might be a source of profit to them and of benefit to the community. We see no reason to doubt, but rather the entire situation seems naturally to sustain, the view that defendants also determined to found their paper for the purposes of protection from what they regarded as scandalous and unjust attacks. Every one knows that a newspaper while skirting and keeping safely without the field of actionable liability for libel may still hold a person up to undesirable conspicuousness and unpleasant ridicule. It is an unskillful newspaper man who cannot embody in what purports to be a neutral or even complimentary article some sting or slur which draws down upon its object ridicule and disfavor rather than commendation. Apparently defendants felt that that was plaintiff's object and that their only method of stopping it and protecting themselves was to drive his paper out of business. For the purpose of justifying this motive we do not think that it is necessary to have it appear that the articles which he published were not justifiable as a matter of news or that defendants were not supersensitive or misguided in their notions that his course was hostile and unfair. We are dealing here with motives. Admittedly the acts of the defendants were inherently lawful, and plaintiff's only ground of complaint is that the motives behind their acts were malicious and unjustifiable. Therefore we think that if defendants honestly believed that they were being persecuted under whatever guise, and that the only way to stop that persecution was by establishing a paper and driving the other paper out of existence, such a purpose of self-protection was not malicious and unlawful, but quite the contrary.

We think also that the evidence establishes without contradiction that defendants had in view the establishment of a business enterprise which would be sanctioned by advantages to themselves and by benefit to the community. The plaintiff upon whom rested the duty of showing the motives with which this paper was established gave no evidence of an intent which oftentimes appears to establish an enterprise...