Corrigan v. Bobbs-Merrill Co.

• Decision Date: 27 January 1920
• Parties: CORRIGAN v. BOBBS-MERRILL CO. et al.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 58

126 N.E. 260

CORRIGAN

v.BOBBS-MERRILL CO. et al.

Court of Appeals of New York.

Jan. 27, 1920.

Action by Joseph E. Corrigan against the Bobbs-Merrill Company and another. From judgment of the Appellate Division (182 App. Div. 919,169 N. Y. Supp. 1089), modifying by reducing verdict and as modified affirming judgment for plaintiff, defendant named appeals.

Reversed, and new trial granted.

See, also, 158 N. Y. Supp. 85,174 App. Div. 857,159 N. Y. Supp. 1107.

Hogan and Andrews, JJ., dissenting.Appeal from Supreme Court, Appellate Division First Department.

John L. Lockwood, of New York City, for appellant.

Henry N. Arnold, of New York City, for respondent.

POUND, J.

The plaintiff, Joseph E. Corrigan, has recovered a judgment against appellant for $25,000 damages in an action for libel. He is a city magistrate of the city of New York, of good standing as a man and a judge. Defendant is an Indiana corporation having its place of business and principal office in Indianapolis. It publishes books of fiction, and has a New York office. The defendant George Bronson Howard, a writer of stories and plays, who was not served and did not appear in the action, wrote a sensational novel entitled ‘God's Man,’ of which appellant published upwards of 10,000 copies in the regular course of its extensive book business. The novel depicts, somewhat realistically, the adventures of one Arnold L'Hommedieu in New York's underworld and elsewhere, and contains chapters entitled ‘Arnold's Adventures in Plunderland,’ ‘Sons of Subterranes,’ and the like. A chapter, which in the table of contents bears the caption ‘Justice-a la Corigan,’ but which in the body of the book is headed ‘Justice-a la Cornigan,’ brings the hero into Jefferson Market Court in the city of New York, a court in which plaintiff frequently sat as magistrate, and deals with the disposition of cases by the magistrate Cornigan. The inference from the unsavory details as related to the facts is unmistakably that the author Howard intended by this chapter deliberately and with personal malice to vilify plaintiff, under the barely fictitious name of Cornigan, in his official capacity, and to expose him to hatred, contempt, ridicule, and obloquy as being ignorant, brutal, hypocritical, corrupt, shunned by his fellows, bestial of countenance, unjust, dominated by political influences in making decisions, and grossly unfit for his place. A paragraph in another chapter, entitled ‘The Gay Life,’ of like import, portrays the man Cornigan even more offensively as an associate of low and depraved characters. No attempt was made by defendant to establish the truth of these allegations, or any of them, and the only question here is whether plaintiff properly proved his case.

[1] Defendant's first separate defense is that it published a supposedly fictitious narrative in good faith; did not know plaintiff, and had no intent to injure him. This is not a complete defense. Even the Massachusetts rule as laid down in Smith v. Ashley, 11 Metc. (Mass.) 367, 45 Am. Dec. 216, holding the writer alone responsible in such a case, has been discredited by later decisions in that jurisdiction. Hanson v. Globe Newspaper Co., 159 Mass. 293, 295, 34 N. E. 462,20 L. R. A. 856. The appellant is chargeable with the publication of the libelous matter if it was spoken ‘of and concerning’ him, even though it was unaware of his existence, or that it was written ‘of and concerning’ any existing person. Apart from the question of express malice, proof that the chapter actually referred to plaintiff would sustain his cause of action.

‘If the publication was libelous, the defendant took the risk. As was said of such matters by Lord Mansfield, ‘whatever a man publishes, he publishes at his peril.’' Holmes, J., in Peck v. Tribune Co., 214 U. S. 185, 189, 29 Sup. Ct. 554, 555 (53 L. Ed. 960, 16 Ann. Cas. 1075).

[2] The fact that the publisher has no actual intention to defame a particular man or indeed to injure any one does not prevent recovery of compensatory damages by one who connects himself with the publication, at least, in the absence of some special reason for a postive belief that no one existed to whom the description answered. The question is not so much who was aimed at as who was hit.

‘The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot show that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words.’ Lord Loreburn, L. C., in Hulton v. Jones, 1910, A. C. 20, 24.

[3] This rule is unqualifiedly applied to publications in the newspaper press, and is no different when applied to those who issue books. Works of fiction not infrequently depict as imaginary events in courts of justice or elsewhere actually drawn or distorted from real life. Dickens, in ‘Pickwick Papers' has a well-known court scene of which Mr. Serjeant Ballantine says in his ‘Experiences' that Mr. Justice Gaselee ‘has been delivered to posterity as having presided at the famous trial of Bardell v. Pickwick. I just remember him, and he certainly was deaf.’ Goldwin Smith, the distinguished historian and publicist, said of Disraeli's veiled attack upon him as ‘The Oxford Professor’ in the novel ‘Lothair,’ that (‘Reminiscences,’ p. 171):

‘He afterwards pursued me across the Atlantic, and tried to brand me, under a perfectly transparent pseudonym, if ‘Oxford Professor’ could be called a pseudonym at all, as a ‘social sycophant.’ There is surely nothing more dastardly than this mode of stabbing a reputation.'

The power of Charles Reade's descriptions of prison life in ‘It's Never Too Late to Mend’ and the abuses of private insane asylums in ‘Hard Cash’ is undeniable, although the truth of some of his details was challenged. The novel of purpose, such as ‘Uncle Tom's Cabin,’ often deals with incidents and individuals not wholly imaginary. Reputations may not be traduced with impunity, whether under the literary forms of a work of fiction, or in jest (Triggs v. Sun Printing & Pub. Ass'n, 179 N. Y. 144, 71 N. E. 739,66 L. R. A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326, or by inadvertence (Moore v. Francis, 121 N. Y. 199, 207,23 N. E. 1127, 8 L. R. A. 214, 18 Am. St. Rep. 810), or by the use of words with a double meaning (Morrison v. Smith, 177 N. Y. 366, 69 N. E. 725;First Nat. Bank of Waverly v. Winters, 225 N. Y. 47, 50,121 N. E. 459). Publishers cannot be so guileless as to be ignorant of the trade risk of injuring others by accidental libels.

The conventional way of putting the general rule is ‘that in a case of libelous publication the law implies malice and infers some damage.’ Byam v. Collins, 111 N. Y. 143, 150,19 N. E. 75 (2 L. R. A. 129, 7 Am. St. Rep. 726). Avoiding, for the nonce, the timehonored words ‘implied malice,’ which are a stumbling block for many, we may safely say that unless the judge rules that the occasion is privileged, the question of malice is never for the jury when compensatory damages alone are sought; the plaintiff recovers damages if he proves that the words apply to him, and that his reputation has been injured, whether such injury is the result of defendant's evil disposition towards him or a mere concatenation of adventitious circumstances.

Plaintiff made out a cause of action for compensatory damages, but he did not rest his case on proof that the publication was ‘of and concerning’ him and libelous. He went further, and sought to prove something, not to be presumed as against appellant from the publication itself, that would justify the jury in giving him an additional sum by way of exemplary damages or smart money, based on an inference of actual malice or willingness to injure his reputation on the part of the appellant.

[4] The distinction between the right to compensatory and punitive damages is clear. Actual injury to reputation must be paid for in all events. From an intent to injure, chargeable to defendant, follows the rule that exemplary damages, ‘a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine’ (Haines v. Schultz, 50 N. J. Law, 481, 14 Atl. 488), may also be awarded. Malice may, in some cases, be implied from the publication itself, where the natural inference from the libel is that it was aimed directly at reputation, but where that inference does not flow naturally from the facts, adequate evidence of actual malice or its equivalent should be produced if punitive damages are sought.

[5] Actual malice might be inferred as against the author from the falsity of the publication (Cohalan v. New York Press Co., 212 N. Y. 344, 106 N. E. 115), but not as against the mere publisher of a libel in a novel which on its face does not purport to be serious or bear the evidence of malice against an actual individual or against any one (Times Pub. Co. v. Carlisle, 94 Fed. 762, 36 C. C. A. 475). The publisher in such a case is not liable to exemplary damages for the acts of the author upon mere proof of publication. If defendant had, in entire good faith, supposed that it was publishing a satire on courts of justice generally, which would hit no judge in particular, and which would be so understood by the readers of the book, and if its belief in that regard was justifiable, the circumstances not calling for some inquiry at the source, it could not be said to be inspired by malice in fact.

[6] Of course, as the trial justice said, ‘malice is malice,’ but it, unfortunately, has two distinct meanings in the law of libel from which two distinct burdens are imposed on plaintiff. It may mean ‘either actual malice or such malice as by legal fiction is presumed for the purpose of reconciling certain...