First Nat. Bank of Waverly v. Winters

• Decision Date: 10 December 1918
• Citation: 121 N.E. 459,225 N.Y. 47
• Parties: FIRST NAT. BANK OF WAVERLY v. WINTERS.
• Court: New York Court of Appeals Court of Appeals

225 N.Y. 47

121 N.E. 459

FIRST NAT. BANK OF WAVERLY

v.WINTERS.

Court of Appeals of New York.

Dec. 10, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the First National Bank of Waverly against Byram L. Winters. From a judgment of the Appellate Division (174 App. Div. 898,159 N. Y. Supp. 923) affirming judgment of the Trial Term, entered on verdict for plaintiff, defendant appeals. Reversed, and new trial ordered.

James Moore, of Oneida, for appellant.

Harver D. Hinman, of Binghamton, for respondent.

ANDREWS, J.

The plaintiff is a banking corporation doing business in the village of Waverly. On December 30, 1910, the defendant published in a newspaper controlled by him an article in which he stated that while he kept his newspaper account with the plaintiff he deposited a check for $100. This check was not properly credited to the account, and, as a result, when later checks were drawn, he was informed that the account was overdrawn. The plaintiff insisted for some time that no mistake had been made, and finally the defendant wrote to Mr. Lyford, its president, asking why the proper credit had not been given. In reply Mr. Lyford wrote that they had made a mistake and were not infallible. The article then proceeded:

‘During this transaction some ten days had elapsed, and the question would naturally arise, How could the books of the First National Bank balance without giving this credit to the Free Press and where was this $100 during all this time? Thereafter Mr. Winters changed the Free Press account as well as his own account from the First National to the Citizens' Bank.’

[1][2] The trial court said to the jury that this was a charge that the plaintiff was guilty of larceny, and so was libelous per se. It further said that the libel applied to the plaintiff. We think this was error. As we have said:

‘In an action for defamation, if the application or meaning of the words is ambiguous, or the sense in which they were used is uncertain, and they are capable of a construction which would make them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine upon all the circumstances, whether they were applied to the plaintiff, and in what sense they were used.’ Sanderson v. Caldwell, 45 N. Y. 398, 401,6 Am. Rep. 105.

The words used are capable of the construction given them by the trial court. Of this there can be no doubt. They may well apply to the plaintiff. But may there also be fairly given to them an innocent sense? Could it fairly be said that they do not refer to the plaintiff? Might hearers of common and reasonable understanding differ in their interpretation of them?

We think this is quite possible. The words do not necessarily imply, and would not necessarily be understood to imply, that the plaintiff had been guilty of more than a mistake or of carelessness. It does not necessarily charge the bank with larceny, and would not necessarily be understood to make such a charge. It might well be that the deposit had been credited to some different account. Neither if a crime was in fact committed was the bank or one of its officers necessarily guilty. That being so, the meaning of the words used and their application should have been submitted to the jury.

[3] A question of evidence bearing upon this cause of action has also been argued before us. The trial court excluded a somewhat long introduction to the article. In this we think it erred. The general rule is that in actions for lible the entire publication may be shown for the purpose of determining the meaning and application of that portion of the utterance of the defendant for which the action is brought if it leads up to the words said to be actionable. Those words often may be modified or explained by the introduction.

[4] In this case the introduction criticizes Mr. Lyford, the president of the bank, for various acts alleged to have been committed by him. It then asks why Mr. Lyford is opposed to the Free Press and given some reasons. It then continues that there are other reasons, to one of which it will briefly refer, and then follows the portion of the article complained of. This introduction was competent, at least as bearing upon the question as to whether the words used might be fairly construed to import a crime or mistake.

The plaintiff also claims that certain other articles published by the defendant were...