Brown v. Du Frey

• Decision Date: 27 April 1956
• Citation: 1 N.Y.2d 190,134 N.E.2d 469,151 N.Y.S.2d 649
• Parties: , 134 N.E.2d 469 John H. BROWN, Respondent, v. Ernest Paul DU FREY, as Executor of Florence E. Browne, Deceased, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 649

151 N.Y.S.2d 649

1 N.Y.2d 190, 134 N.E.2d 469

John H. BROWN, Respondent, v. Ernest Paul DU FREY, as Executor of Florence E. Browne Deceased, Appellant.

Court of Appeals of New York.

April 27, 1956.

Samuel Weisstein, Brooklyn, for appellant.

Milton W. Levy and Moe Sobel, New York City, for respondent.

CONWAY, Chief Judge.

Plaintiff instituted this suit in the City Court of the City of New York against defendant, Ernest Paul Du Frey, as executor under the last will and testament of Florence E. Browne, deceased, seeking damages on a cause of action based upon an alleged testamentary libel. The jury returned a verdict in favor of plaintiff in the sum of $5,000 and the Appellate Term and the Appellate Division have both affirmed unanimously. The appeal to our court is by leave of the Appellate Division, Civil Practice Act, § 589, subd. 1, par. (b).

Plaintiff married the testatrix in Richmond, Virginia, in 1901, and brought her to New York to live. They lived together in this State until 1916 when plaintiff brought an action for divorce against her, based upon her alleged adultery with one Paul Lightfoot. On June 6, 1917, he secured a final judgment of divorce in the Supreme Court, New York County. At all times up to and including the time of the divorce, plaintiff made provision for the support of testatrix and at no time abandoned her. Sometime after the divorce, Florence E. Brown changed the spelling of her last name to 'Browne.'

In 1924 plaintiff married one Myra Bronw. At the time of the commencement of this action they were living together at No. 101 Decatur Street, Brooklyn, New York. Plaintiff has been a licensed insurance broker for the past 25 years. He represents a number of insurance companies and has approximately 3,000 clients, many of whom are women. He has been a member of the Concord Baptist Church for a number of years. The church has a membership of over 8,000 members. Plaintiff is also a member of a Masonic Lodge and a life member of the Elks, having passed through all the stations to become Exalted Ruler.

On June 22, 1951, plaintiff's former wife, Florence E. Browne, executed her last will and testament which contained the following paragraph:

'Fifth: I am mindful of the fact that I have made no provision for John H. Browne, my husband. I do so intentionally because of the fact that during my lifetime he abandoned me, made no provision for my support, treated me with complete indifference and did not display any affection or regard for me.'

The testatrix died on September 26, 1951, and her will was admitted to probate on May 5, 1952, in the Surrogate's Court of New York County on the petition of the defendant executor.

On October 20, 1951, the New York Amsterdam News carried the following article on page one:

'Husband Deserted Her; Woman Bequeaths Fortune to Church

'To the husband who allegedly treated her with 'indifference,' the late Florence E. Brown, who left an estate of $10,000 directed that he be disinherited. Mrs. Browne who died on Sept. 26, 1951 at her home, 426 Lenox Ave., left almost her entire estate to the Twelfth Church of Christ Scientist of 147 West 123rd St. She directed in her will, filed in Surrogate's Court, that the church receive the sum of $9,000. She left a bequest of $500 to her sister, Inez Smith of 424 Lenox Ave. Another $500 to Donald Williams of 422 Lenox Ave., who is listed as an infant under 14 years of age.

'Leaves Husband Nothing

'The husband, John H. Browne of 101 Decatur St., Brooklyn, is mentioned in Mrs. Browne's will as one who is entitled to none of her worldly possessions.

"I am mindful,' Mrs. Browne declared in her last testament dated June 11, 1951, 'of the fact that I have made no provision for my husband, John H. Browne. I do so intentionally because of the fact that during my lifetime he abandoned me, made no provision for my support treated me with complete indifference and did not display any affection or regard for me.'

Ernest Paul Dufrey of 348 Grand Ave., was named executor of the estate by Mrs. Browne.

'Under the law of this state a wife cannot disinherit her husband unless he has abandoned her or was guilty of cruel and inhuman treatment.'

Thereafter the plaintiff instituted this action.

At the close of plaintiff's case, counsel for defendant moved to dismiss 'Solely on one point', viz., that the words 'do not constitute actionable words per se'. The motion was denied. The defendant then rested and renewed 'the same motion.' Thus, the defendant's motions for a dismissal of the complaint were specifically and unambiguously limited to the claim that the words written by the testatrix in her will were not 'actionable words per se'. No claim was made that the complaint did not state a cause of action for the reason (1) that the words were not written of and concerning plaintiff; (2) that the act of the executor in offering the last will and testament containing the alleged defamatory matter for probate did not constitute the publication of the alleged libelous matter necessary to complete the tort of libel; (3) that no cause of action based on a 'testamentary libel' exists or (4) that a last will and testament is a part of a judicial proceeding and, as such, must be considered a privileged communication under the rules of law pertaining thereto.

The Trial Judge charged the jury (a) that one may libel another by will; (b) that the probate of the instrument constitutes the publication of the libel; (c) that the words written by the testatrix here were libelous; (d) that the words were written of plaintiff, and (e) that the jury's function here was to fix damages.

The only one of the above-listed aspects of the charge to which the defendant excepted was 'that part of the charge which tells the jury that the words are libelous because they impute to him bad actions and tend to degrade him * * *.'

On this appeal, defendant seeks a reversal of the judgment in plaintiff's favor upon the grounds numbered (1) to (4), above, as well as upon the ground that the trial court erred in ruling, as a matter of law, that the testamentary provision in question was libelous.

Under well-established principles, however, the sole issue preserved for appeal by defendant is that of whether the trial court erred in ruling, as a matter of law, that the testamentary provision in question was libelous. Not only did defendant limit the case to that single issue by his restricted motions to dismiss the complaint, but he more emphatically so limited it by taking the single exception to the charge referred to above. Section 446 of the Civil Practice Act provides: 'Exception to the charge given to the jury by the court or any part thereof and to the granting or refusal of requests to charge, shall not be deemed to have been taken unless expressly noted by the party adversely affected before the jury have rendered their verdict.'

It is well settled that the charge of the Trial Judge, insofar as it is not excepted to, becomes the 'law of the case', binding upon the parties, even though it be an erroneous statement of the law of this State. See Buckin v. Long Island R. Co., 286 N.Y. 146, 36 N.E.2d 88; Berner v. Board of Ed., 286 N.Y. 174, 36 N.E.2d 100; Leonard v. Home Owners' Loan Corp., 297 N.Y. 103, 75 N.E.2d 261; McCabe v. Cohen, 294 N.Y. 522, 63 N.E.2d 88; Commercial Cas. Ins. Co. v. Roman, 269 N.Y. 451, 199 N.E. 658; Graves v. Rudman, 235 App.Div. 380, 257 N.Y.S. 212, appeal dismissed 260 N.Y. 628, 184 N.E. 121; Roberts v. Homer P. Snyder Mfg. Co., 242 App.Div. 244, 274 N.Y.S. 527.

It is true that, following the rendition of the verdict, counsel for defendant moved 'to set aside the verdict as being contrary to the facts, contrary to the weight of the evidence, and contrary to the law and on all the grounds specified in Section 549 of the Civil Practice Act including excessiveness.' (Emphasis supplied.) However, that motion does not aid defendant. We are not concerned, in this court, with facts or the weight of the evidence (the only fact left to the jury by the charge was that of damages) and the term 'contrary to law' as found in section 549 of the Civil Practice Act does not apply to an error of the court in giving the jury the instructions upon which their verdict is to be based. It has reference to a verdict which the law as charged by the Judge does not authorize the jury to render upon the evidence presented to them. See 7 Carmody-Wait on New York Practice, § 24. The act of the Judge in erroneously charging the jury upon the law in the case, although it necessarily results in a verdict not authorized by law, is not an error for which the jury is responsible, but is an error of the Judge, to be pointed out by an exception and if a party fails to take an exception he cannot raise the question upon a motion for a new trial.

Accordingly, we address ourselves to the single question or the 'one point' presented by this record, viz., whether the words written of plaintiff were libelous as a matter of law.

In Nichols v. Item Publishers, 309 N.Y. 596, 132 N.E.2d 860, decided on February 17th of this year, this court reaffirmed the general rule stated in Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257, 259, that 'A writing is defamatory that is, actionable without allegation or proof of special damage if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him.' Another well-established definition of libel is that found in Sydney v. Macfadden Newspaper Pub. Corp., 242 N.Y. 208, 211-212, 151 N.E. 209, 210, 44 A.L.R. 1419: 'Any written or printed article is libelous or actionable without alleging special damages if it tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of rightthinking...