Garrison v. Sun Printing & Publ'g Ass'n

• Decision Date: 17 December 1912
• Citation: 207 N.Y. 1,100 N.E. 430
• Parties: GARRISON v. SUN PRINTING & PUBLISHING ASS'N.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 1

100 N.E. 430

GARRISON

v.SUN PRINTING & PUBLISHING ASS'N.

Court of Appeals of New York.

Dec. 17. 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by George E. Garrison against the Sun Printing & Publishing Association. From a judgment of the Appellate Division (150 App. Div. 689,135 N. Y. Supp. 721) affirming an interlocutory judgment overruling a demurrer to one of the causes of action set forth in the complaint, the defendant, by permission appeals. Affirmed.

See, also, 135 N. Y. Supp. 1113.

James M. Beck, of New York City, for appellant.

Herbert H. Gibbs, of New York City, for respondent.

HISCOCK, J.

By demurrer to one of the purported causes of action set forth in the complaint, the question is presented whether a husband may recover for loss of servicesof his wife caused by her sickness resulting from mental distress, which in turn was caused by the defendant's willful and malicious publication concerning her of defamatory words actionable per se. There is no question but that the published words are libelous per se, and, whatever facts may be established on a trial, we must assume for the purposes of this appeal, in accordance with defendant's admissions, concededly to be implied from its demurrer, that the defendant not only published them of and concerning plaintiff's wife, but that it did so ‘wickedly and maliciously and intentionally and willfully,’ for thus it is alleged in the complaint.

[1] Inasmuch as plaintiff's right to recover, if at all under the circumstances, must in effect be derived through his wife, it will be important in the first place to inquire whether the wife herself might recover for mental distress and physical sufferings resulting from the willful and malicious publication of such libelous words.

It was early established in this state, by decisions which do not appear to have been overruled or limited, that an action to recover for the utterance of defamatory words, not actionable in themselves, could not be sustained by proof of mental distress and physical pain suffered by the complainant as a result thereof. Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420;Wilson v. Goit, 17 N. Y. 442. And the same doctrine seems to have prevailed in England. Alsop v. Alsop, 5 H. & N. 534, 539; Lynch v. Knight, 9 H. of L. Cases, 577, 592.

On a superficial examination of the opinion in Terwilliger v. Wands, and on which rested the decision in Wilson v. Goit, it would seem to be founded on reasons which would be as applicable to a case of defamatory words actionable in themselves as to one where the words were not thus in themselves actionable and required proof of special damages. It was held that special damages of the kind stated and of which recovery was there being sought were not such natural, immediate, and legal consequencesof the words spoken as to sustain the action. A more careful examination, however, discloses that the real and full theory on which a recovery was refused was that an action for slander or libel is brought to recover fundamentally for injury to character, and that the special damages necessary to sustain such an action must flow from disparaging and injuring it; that illness ‘was not, in a legal view, a natural, ordinary one (consequence), as it does not prove that the plaintiff's character was injured. The slander may not have been credited by or had the slightest influence upon any one unfavorable to the plaintiff.’ It was further remarked that ‘this element of an action for slander in a case of words not actionable of themselves'-that the special damages must flow from impaired reputation-had been overlooked in several cases, but that, nevertheless, ‘where there is no proof that the character has suffered from the words, if sickness results it must be attributed to apprehension of loss of character, and such fear of harm to character, with resulting sickness and bodily prostration, cannot be such special damage as the law requires for the action. The loss of character must be a substantive loss, one which has actually taken place.’ 17 N. Y. 62, 63,72 Am. Dec. 420.

Both the Terwilliger and the Wilson Cases took pains to limit their effect to cases of defamatory words not actionable in themselves. Their plain intent was to declare that an action of libel or slander involves as its very foundation an injury to character; that where the language complained of is not of such a character that the law presumes an injury, but requires proof of special damages, this requirement cannot be satisfied by simply proving that the plaintiff had been made sick, there being no proof whatever of injury to the character, which involves the effect of the defamatory words on third persons rather than on the complainant himself. Hamilton v. Eno, 16 Hun, 599, 601. It will be seen that this reasoning does not apply to a case where the words are actionablein themselves because there the law presumes an injury to character which of itself will sustain an action, and proof of mental or physical suffering is presented as an element of additional or special damages accompanying or resulting from the injury to character thus presumed.

Expressions are to be found in some of the decisions of this court which might seem to suggest the conclusion that proof of such suffering is allowed only as a basis for punitive, and not as a basis for compensatory, damages. Brooks v. Harison, 91 N. Y. 83, 91;Warner v. Press Pub. Co., 132 N. Y. 181, 30 N. E. 393 . But if these or other cases left any doubt of the right of a plaintiff in an action for the utterance of defamatory words actionable per se to recover compensatory damages for mental distress, this doubt was dispelled, and such right fully established by the case of Van Ingen v. Star Co., 1 App. Div. 429,37 N. Y. Supp. 114, affirmed 157 N. Y. 695, 51 N. E. 1094, on the opinion of Mr. Justice Ingraham in the Appellate Division . While the opinion touches briefly on this question of the right thus to recover in such a case for mental sufferings, the printed record shows that the question was fairly and plainly involved and presented and that the decision must be regarded as an adjudication of this question. See, also, as supporting such conclusion, Aaron v. Ward, 203 N. Y. 351, 354,96 N. E. 736,38 L. R. A. (N. S.) 204;Ransom v. N. Y. & Erie R. R. Co., 15 N. Y. 415, 420;Burt v. McBain, 29 Mich. 260;Markham v. Russell, 12 Allen (Mass.) 573, 575, 90 Am. Dec. 169;Swift v. Dickerman, 31 Conn. 285;Childers v. Mercury, etc., Co., 105 Cal. 284, 289, 38 Pac. 903,45 Am. St. Rep. 40;Lehrer v. Elmore, 100 Ky. 56, 60, 37 S. W. 292;Finger v. Pollack, 188 Mass. 208, 74 N. E. 317;Adams v. Smith, 58 Ill. 417, 421.

While the further proposition does not appear to have been specifically decided in this state, I have no doubt that a plaintiff, being entitled to recover compensatory damages for mental distress resulting from the publication of defamatory words actionable in themselves, may likewise recover for physical sufferings brought about by or attending such mental distress. It is true that the physical sufferings as in this case may be removed one step further from the wrong than the mental disturbance which gives rise to it; but this fact of itself does not prevent a recovery provided these damages otherwise come within the rules applicable to such a subject.

[2] The general rule in torts applied to such actions as those of negligence is that a wrongdoer is responsible for the natural and proximate consequences of his conduct, and what are such consequences must be generally left for the determination of the jury. Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264, 282,48 Am. Rep. 622;Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. The essential requirements in such cases are that the damages shall be directly traceable to the wrongful act, and not the consequence of some intervening outside cause, and that they shall be the natural result thereof . Under this rule it has been held in this state, as in others, that in an action for negligence a plaintiff may not recover for physical sufferings, as a miscarriage, resulting purely from fright...