Den Norske Ameriekalinje Actiesselskabet v. Sum Printing & Publ'g Ass'n

• Decision Date: 04 March 1919
• Citation: 122 N.E. 463,226 N.Y. 1
• Parties: DEN NORSKE AMERIEKALINJE ACTIESSELSKABET v. SUM PRINTING & PUBLISHING ASS'N et al.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 1

122 N.E. 463

DEN NORSKE AMERIEKALINJE ACTIESSELSKABET

v.SUM PRINTING & PUBLISHING ASS'N et al.

Court of Appeals of New York.

March 4, 1919.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Den Norske Ameriekalinje Actiesselskabet against the Sun Printing & Publishing Association, and Ervin Wardman. From an order of the Appellate Division (169 N. Y. Supp. 1091), affirming an order of the Special Term, which granted a motion to strike out certain allegations in the complaint, plaintiff appeals. Reversed.

E. M. Bullowa, of New York City, for appellant.

MacDonald De Witt, of New York City, for respondents.

HISCOCK, C. J.

In this action for libel plaintiff has alleged and is seeking to recover as part of its damages certain expenses incurred in publishing denials of the truth of the offending article for the purpose of averting and minimizing its damages. On motion these allegations were stricken out of the complaint as irrelevant on the theory that plaintiff could not recover such damages, and the question now presented to us by certification is whether this should have been done. It is essential to an intelligent discussion of the question to state the facts presenting it as they are set out in the complaint.

Plaintiff is a corporation created by and existing under the laws of the kingdom of Norway. On July 7, 1917, and for some time prior thereto it had been engaged in operating a line of steamers between New York and Norway which carried both passengers and freight and it ‘had an established credit and achieved a reputation and good name, and high esteem for honesty, integrity and ability in the conduct of its said business and in the carrying out of its obligations and agreements.’ On the date mentioned one of its steamers sailed from New York for Norway carrying a large list of passengers and a large amount of freight. It went ashore near Cape Race on July 15th, and was compelled to call for the assistance of a wrecking ship.

At this time the defendants were engaged in publishing a newspaper which was in general circulation throughout the city of New York and elsewhere, and on August 6, 1917, they, as alleged, ‘falsely and maliciously composed and published and caused to be published concerning the plaintiff, in said newspaper’ the offending article which read as follows:

‘Wreck Works a Sea Change

“Cargo of Grain' Transmuted into Copper and Lead on a Scandinavian Liner.

‘Craft Went Ashore Near Cape Race on July 15.

‘The wrecking ship Rescue, which returned today from Newfoundland waters, reported that the wrecked steamship Kristianiafjord, when grounded seven miles west of Cape Race, on July 15, was found to be heavily laden with copper and lead.

‘The wreckers said that they assisted in taking from the hold of the stranded vessel a 15,000 ton cargo of boxes, containing principally ingots of copper and bars of lead. The metal had been securely cased.

‘The Kristianiafjord, the greatest of Scandinavian merchantmen, belonging to the Norwegian-American Line (meaning the plaintiff) sailed from New York, July 7 with 1200 passengers, one of the biggest passenger lists of war times, and ‘a great cargo of general merchandise, including a vast quantity of grain,’ as ship news reported at the time.

‘A few days later she arrived at Halifax and the British overhauled her. Among her passengers were several Germans who until recently had been attached to the Swiss Legation in Washington, including Heinrich Schaffhausen, Count von Bernstorff's right hand man.

‘By what process a cargo ‘principally of grain’ was transmuted into one principally of copper and lead the crew of the Rescue did not attempt to say.'

All of this article is asserted to have been false, except certain statements therein which are immaterial in this discussion, and it is claimed, in substance, that the fair meaning intended to be and actually conveyed by it was that the plaintiff fraudulently and illegally misrepresented the nature of the cargo contained in its ship by falsifying the manifest and other documents, and that it was engaged in violating the laws of this country by conveying under circumstances of concealment and misrepresentation a large supply of copper to Norway, whence it could be easily transported to the Central Powers with which we were then at war, and which in accordance with general knowledge were much in need of said material. Then follow the allegations drawn in question on this appeal that on failure of defendants to retract said article as immediately demanded, ‘and in order to minimize the damage and injury to its reputation and credit, plaintiff was obliged to and did cause denials of such false and defamatory statements to be made in newspapers published and circulated in the city of New York and elsewhere throughout the United States, at an expense of $2.722, which it was obliged to and did pay.’

In considering the question whether plaintiff might attempt to prevent damages which it is claimed would probably accrue as the result of the offending article by publishing advertised denials of its truthfulness, we encounter at the outset the inquiry whether the article was essentially and necessarily libelous and injurious, we being compelled of course to interpret it as it now stands without denial. The complaint alleges no item of special damages, unless it be the one under discussion. Therefore, unless the article was of such a character as necessarily to import damages, the complaint is demurrable, and no basis would exist for incurring expenses to prevent damages neither alleged nor implied. If it were necessary at this time to decide that question, we should be inclined to hold that at least a jury might give to the language employed a meaning which would make it accusatory of the commission by the plaintiff in its business of fraudulent, dishonest, and unlawful acts, and that under this construction it would be libelous per se.

[1][2] It is now well settled in this state that a corporation may be the subject of an article which is libelous per se. Its ‘right to be protected against false and malicious statements, affecting its credit, or property, should be beyond question. There has been some dispute in the cases as to the necessity of setting out the specific damage, which a corporation claims to have suffered from a libelous publication,’ but the better rule is ‘that such an averment is not necessary, when the language is of so defamatory a nature as to directly affect credit and to occasion pecuniary injury.’ Reporters Ass'n of America v. Sun Printing & Pub. Ass'n 186 N. Y. 437, 440,79 N. E. 710. And again in Union Associated Press v. Heath, 49 App. Div. 247, 253,63 N. Y. Supp. 96, 100, cited with approval in the foregoingcase, it is said:

‘It is now settled * * * that a corporation engaged in business may maintain an action for libel without proof of special damage where the language used concerning it is defamatory in itself and injuriously and directly affects its credit and necessarily and directly occasions pecuniary injury.’

See, also, N. Y. Bureau of Information v. Ridgway-Thayer Co., 119 App. Div. 339, 342,104 N. Y. Supp. 202, reversed on dissenting opinion of Ingraham, J., 193 N. Y. 666, 87 N. E. 1124.

However, without attempting finally to decide that question, which it is stated on the brief will come before us on a demurrer, we think we should assume for the purposes of this appeal that the article is libelous per se within the authorities just quoted. The important question which we are considering must have been certified to us on that theory, and under these circumstances we do not feel inclined to dismiss its consideration because of a decision of another question which at most is only indirectly before us and which is at least debatable.

Thus we come to the main question.

[3] The rule is of general and widespread application that one who has been injured either in his person or his property by the wrongful act or default of another is under an obligatory duty to make a reasonable effort to minimize the damages liable to result from such injury, and that if he does not make such reasonable effort he will be debarred from recovering for those additional damages which result from such failure. Familiar illustrations of this rule are found in the requirement that one who is threatened with damages as the result of a breach of a contract of employment must make a reasonable effort to find employment elsewhere (Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285,Johnson v. Meeker, 96 N. Y. 93, 97,48 Am. Rep. 609); that one whose property is threatened by the negligence of another, as by a defective sewer or sparks cast from a locomotive, must make proper efforts to stay the damages (Toledo, Peoria & W. Ry. Co. v. Pindar, 53 Ill. 447, 5 Am. Rep. 57;Van Pelt v. City of Davenport, 42 Iowa, 313, 20 Am. Rep. 622); that one whose person is injured by the carelessness of another must make a reasonable attempt to cure or mitigate the injury and stop the damages (Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y. 77, 23 N. E. 35,6 L. R. A. 765;Pullman Palace Car Co. v. Bluhm, 109 Ill. 20, 50 Am. Rep. 601).

[4] Then it is held as a natural corollary to this rule of duty, not only that the injured party who makes a successful effort to avoid or reduce damages will be allowed to recover the expenses necessarily incurred in so doing, but also that he will be allowed to recover the expenses of a proper effort even though it proves unsuccessful. The scope of the effort and the limit upon the expenses for which he may recover, especially in the latter case, are naturally defined by different words in different cases. But from them all we think the general rule may be fairly deduced that the effort must be made in good faith; that it must be conducted with reasonable skill, prudence, and efficiency; that it must be reasonably warranted by and...