Campbell v. New York Evening Post, Inc.

• Decision Date: 31 May 1927
• Parties: CAMPBELL v. NEW YORK EVENING POST, Inc.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 320

157 N.E. 153

CAMPBELL

v.NEW YORK EVENING POST, Inc.

Court of Appeals of New York.

May 31, 1927.

Action by Anne McCoy Campbell against the New York Evening Post, Incorporated. From a judgment of the Appellate Division, reversing on the facts and law a judgment of the Trial Term, entered on a verdict of a jury in favor of plaintiff, and dismissing the complaint (219 App. Div. 169, 218 N. Y. S. 446), plaintiff appeals.

Judgments reversed, and a new trial granted.

See, also, 218 App. Div. 732, 217 N. Y. S. 903.

Appeal from Supreme Court, Appellate Division, First Department.

W. Davis Conrad, of New York City, for appellant.

David Paine, of New York City, for respondent.

POUND, J.

The alleged libel consists in the publication of and concerning the plaintiff by the defendant of an article which, under headlines:

‘Healer and Inventor Face Swindle Charge

‘Mrs. Elizabeth Nichols Says They Took $16,000 from Her Through Fraud,’

-stated of plaintiff, widely known as a Christian Science practitioner, that she was named as a codefendant with one Canton, a prominent inventor of remarkable devices, in a suit filed in the Supreme Court by attorneys for Mrs. Elizabeth S. Nichols, a wealthy widow, to recover $9,000, alleged to have been invested by her in a company promoted by defendants, and a loan of $7,000, alleged to have been made by her to them; the investment and loan having been made by reason of a great and controlling mental influence which the plaintiff in this case obtained over her. The complaint herein alleges that these allegations of fraudulent practices on her part were false and defamatory, and that plaintiff was damaged by the publication thereof by defendant.

The answer sets up the bringing of the action against plaintiff and Canton by Mrs. Nichols, and the filing of a complaint therein in the office of the clerk of New York county, containing the allegations set forth in the article, and pleads as matter of defense that such article was a fair and true report of a judicial proceeding, or other public and official proceeding, published without malice, and therefore privileged. Plaintiff had filed an answer to the fraud action. She had also, when interviewed, denied all the material allegations of the complaint, as appeared in the article in the New York Times from which the article in suit was rewritten.

On the trial the trial justice excluded evidence that the plaintiff had already had recoveries for the same libel against other newspapers. The article was published in defendant's newspaper on March 30, 1922. On September 1, 1924, section 338-a of the Civil Practice Act took effect. It reads as follows:

‘See. 338-a. Evidence in Action for Libel. At the trial of any civil action for libel, the defendant may prove, for consideration by the jury in fixing the amount of the verdict, that the plaintiff has already recovered damages or has received, or agreed to receive, compensation in respect of a libel or libels of a similar purport or effect as the libel for which such action has been brought.’

[1] The Appellate Division held that this was error. The question is whether the provision operated retrospectively, so as to affect causes of action which had accrued before it went into effect. In Isola v. Weber, 147 N. Y. 329,14 N. E. 704, it was held that the provision in the Constitution of 1894 which removed the $5,000 limitation on the recovery in actions for injuries resulting in death was not to be construed retroactively. The court adopted the reasoning of Follett, J., in the case of O'Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406, 34 N. Y. S. 358. The rule as stated by Follett, J., may be summarized as follows: A statute which imposes a greater liability on defendants and confers an additional benefit on plaintiffs in actions to recover damages for wrongs is not construed to have a retroactive effect, in the absence of circumstances of its adoption establishing a contrary intent. The converse of the proposition is equally sound. Sanford v. Bennett, 24 N. Y. 20. In Sackheim v. Pigueron, 215 N. Y. 63, 109 N. E. 109, the question was as to the effect of section 841-b of the Code of Civil Procedure, which provided:

‘On the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant.’

Without citation of the Isola Case, supra, the court held that this statute should be construed retrospectively, because ‘it did not affect the liability of the defendant for the injury caused by the death of the deceased, but was merely a rule as to the burden of proof to be applied upon the trial of the action.’ The distinction is clear between a change of procedure which may add to the burdens of the party on the trial, but leaves the rule of liability unchanged, and a change in the rules of evidence which permits proof, theretofore inadmissible, in mitigation of damages, and thereby tends to lessen the amount recoverable by the plaintiff. If the Legislature had designed to minimize the wrong done to a plaintiff by a libelous publication in the past, it is reasonable to assume that it would have used apt words for that purpose. As nothing reveals such intention the amendment would, by the application of established rules of statutory construction, apply only to causes of action accruing subsequent to September 1, 1924.

[2] The Appellate Division went further. It sustained defendant's plea of privilege in full under Civil Practice Act, § 337, and dismissed the complaint. The section reads as follows:

‘Sec. 337. Proof of Malice in Action for Libel. An action, civil or criminal, cannot be maintained against a reporter, editor, publisher, or proprietor of a newspaper, for the publication therein of a fair and true report of any judicial, legislative or other public and official proceedings, without proving actual malice in making the report.

‘This section does not apply to a libel contained in the heading of the report; or in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of the public and official proceedings which was not a part thereof.’

Judicial proceedings have been repeatedly defined as proceedings before a court or judge. Numerous cases in England and in the states hold that the rule of privilege does not apply to pleadings which, though filed, have not yet received judicial notice. Stuart v. Press Pub. Co., 83 App. Div. 467, 82 N. Y. S. 401;Williams v. New York Herald Co., 165 App. Div. 529, 150 N. Y. S. 838;Lundin v. Post Pub. Co., 217 Mass. 213, 104 N. E. 480,52 L. R. A. (N. S.) 207; Burdick's Law of Torts (4th Ed.) p. 391; Newell's Slander & Libel (4th Ed.) p. 412; 27 Columbia Law Review, 225, and cases cited. The English Law of Libel Amendment Act, 1888, extends the privilege only to reports of ‘proceedings publicly heard before any court exercising judicial authority.’ It was seriously contended by Coleridge, C. J., that there should be a final decision before the publication of a report of the proceedings would be privileged, but in Kimber v. Press Association, [1893] 1 Q. B. Div. 65, the court came to the conclusion that the privilege existed if in the end there must be a final decision.

The English law plainly excludes from consideration pleadings filed, but not acted on in open court. With us the question is whether they may be brought under the head of judicial, public, or official proceedings. The privilege has been gradually extended to all matters which have been made the subject of judicial proceedings in any court of record or not of record, and whether such proceedings may be preliminary or interlocutory or even ex parte. Odgers on Libel & Slander (5th Ed.) p. 308; Lundin v. Post Pub. Co., supra. Arguments which met with no favor 70 or 80 years ago have prevailed with the courts in recent years. Usill v. Hales, 3 C. P. Div. 319. The test which remains is said to be whether the pleading has come before a court or judge and been made the subject of judicial action. If it has not received the formal oversight of a court or judge as a basis for action, no matter how public or how effective in character as a part of a lawsuit it may be, it is urged that the privilege does not exist. The rule has not escaped criticism (Mich. Law Rev. March, 1926) and it has been ignored in Pennsylvania (Mengel v. Reading Eagle Co., 241...