Gates v. New York Recorder Co.

• Decision Date: 01 March 1898
• Citation: 155 N.Y. 228,49 N.E. 769
• Parties: GATES v. NEW YORK RECORDER CO.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 228

49 N.E. 769

GATES

v.NEW YORK RECORDER CO.

Court of Appeals of New York.

March 1, 1898.

Appeal from supreme court, general term, Second department.

Action by Ida M. Gates against the New York Recorder Company. From a judgment of the general term (31 N. Y. Supp. 1127) affirming a judgment on a verdict, defendant appeals. Affirmed.

O'Brien, J., and Parker, C. J., dissenting.

Burnett, Stayton & Hagen, for appellant.

William G. Cooke, for respondent.

BARTLETT, J.

This is an action for libel. The defendant published in its newspaper, the New York Recorder, in the city of New York, of and concerning the plaintiff, three days after her marriage, that she was a ‘dashing blonde, twenty years old, and is said to have been a concert-hall singer and dancer at Coney Island.’ It also charged, in substance, that she had been secretly married to her husband, who was 75 years old, and ‘fond of pretty women.’ It is admitted that the statements as to plaintiff and her alleged secret marriage are false. The complaint alleges that ‘a ‘concert hall at Coney Island’ is a place of evil report, and a resort for disorderly and disreputable persons of both sexes; that the female singers and dancers therein are generally depraved and abandoned women, or are so regarded and understood to be, and, as such, are shunned and avoided by orderly and respectable people.' Upon the trial evidence was given tending to show that the concert halls at Coney Island were drinking places, in which were tables where the customers sat, attended by rough and uncouth waiters; that there was a stage in one end of the room, on which persons performed and women appeared in short skirts to dance and sing; and that, when they were not upon the stage performing, they were often among the audience, drinking with strange men. Other evidence was given which tended to prove in detail that the women who were connected with such places have a distinctive reputation, which is bad in respect to their morality, and that these concert halls were resorts of a low order.

It is to be borne in mind that this charge was published in a newspaper circulated in New York and Brooklyn, and was necessarily read by a large number of people, who were perfectly familiar with the nature of the concert hall, so called, not only in the two cities referred to, but also at the summer resort known as Coney Island. It is true that at the latter place concerts are given daily in the summer at Manhattan Beach and Brighton, which are attended by the general public, and at which appear singers and musicians of the highest reputation. The audiences that there assemble are as reputable as any that meet in the Metropolitan Opera House in New York during the winter season. When the general public read of the plaintiff that she had been a concert-hall singer and dancer at Coney Island, they did not for ond moment associate her with the concerts at Manhattan Beach and Brighton, but rather with that class of cheap and disreputable entertainments, which flourish at the western end of the island, known as ‘concert halls,’ the character of which has been fully disclosed in this record. To say that the words published of the plaintiff in the community where the character of the concert hall is well known were not calculated to hold her up to disgrace and disrepute, and to charge her with unchaste conduct, is to reach a conclusion both illogical and unjust. Such a charge is libelous per se, and results in damages that cannot be measured by mere money compensation.

In order to appreciate the unfortunate effect of this publication upon the character and prospects of this plaintiff, it is proper to recall a few of the facts as proved at the trial. It appears that this plaintiff, a lady 35 years old, married a reputable citizen of Brooklyn, she being at the time a stranger in that city, but intending to make it her future home. It further appears that she was born in Indiana, but passed her youth in Palmyra, Wayne county, N. Y., on a farm; that she was graduated at the Palmyra Normal School and the RochesterTraining School, and since then had been engaged continuously as school teacher up to the time of her marriage; that she had never been on the stage in any capacity, never sung or danced at a concert hall or at any other place, and never had been in a concert hall even as a spectator. To make this false and serious charge concerning a lady who had just taken up her residence among strangers and who undoubtedly hoped to win her way into good social position, and to deserve the friendship and respect of virtuous women and honorable men, was to advertise her as no better than a woman of the pave. Such a charge, if believed, holds a woman up to the public gaze, not only as unchaste, but as belonging to one of the lowest classes of the great army of fallen women. It does not meet the present situation to say that it is not libelous per se to publish of a woman that she is or was upon the stage, and that she acted, danced, or sung at a public entertainment or in a public place. It is very true that good and noble women have graced the stage at all times, but these observations are entirely without application to the case at bar. We have here the direct and explicit charge that the plaintiff ‘is said to have been a concert-hall singer and dancer at Coney Island,’ which can mean but one thing, as already pointed out.

This publication was libelous per se in two aspects: It was a charge involving unchastity, and it also tended to disgrace the plaintiff, and hold her up to ridicule and contempt. This court held, in Morey v. Association, 123 N. Y. 207, 25 N. E. 161, that to publish of the plaintiff that he was threatened with a breach of promise suit, and that his friends were moving to effect a reconciliation, but the young lady insisted on his marrying her, was libelous per se, calculated to disgrace him, and hold him up to ridicule and contempt, and that it was not necessary to allege or prove special damages. See cases cited in 123 N. Y., at page 210, 25 N. E. 161.

We are of opinion that there was sufficient proof of publication by the defendant; also, that publication is admitted in the answer. the judgment should be affirmed, with costs.

BARTLETT, J., reads for affirmance, and HAIGHT, MARTIN, and VANN, JJ., concur. O'BRIEN, J., reads for reversal, and PARKER, C. J., concurs. GRAY, J., absent.

Judgment affirmed, with costs.

O'BRIEN, J. (dissenting).

It appears that the plaintiff was married to Gen. Theodore B. Gates on June 28, 1893. She has recovered damages in this case as the result of a publication by the defendant alleged to be libelous. The complaint charges that on July 1, 1893, two days after her marriage, the defendant published in a newspaper called the New York Recorder a highly-colored and somewhat sensational announcement of the marriage, in which the plaintiff is referred to in the following words: ‘The General's bride is a dashing blonde, twenty years old, and is said to have been a concerthall singer and dancer at Coney Island.’ It is, I think, admitted that this reference to the lady was at least a mistake. There is no allegation in the complaint or proof in the record of any special damage sustained by the plaintiff in consequence of the publication, and hence the question is presented whether the words are actionable per se. In all actions of this character, the plaintiff's right to damages is either to be presumed from the nature of the words themselves, or made out by allegations and proof of their injurious consequences. A publication is libelous on its face when the words impute to the plaintiff the commission of a crime, or a contagious disorder tending to exclude him from society, or when the injurious words are spoken or published with respect to his profession or trade, or disparage him in a public office, or tend to bring him into ridicule and contempt. But in all other cases the fact that the plaintiff's reputation has been injured by the words must be proved at the trial by evidence of the consequences that directly resulted from their publication. This is called ‘evidence of special damage,’ as distinguished from the general damage, which the law presumes, without express proof, where the words are actionable per se. Odgers, Sland. & L. p. 2.

It is well settled that the plaintiff cannot introduce the issue of special damage at the trial unless he has laid the proper foundation in the pleading. This court, in a recent case, adopted the classification of actionable words as defined by Chief Justice De Grey in the leading case of Onslow v. Horne, 3 Wils. 177. According to that classification actionable words are those which (1) import a charge of some punishable crime; (2) impute some offensive disease which would tend to deprive a person of society; or (3) which tend to injure a party in his trade and occupation or business; or (4) which have produced some special damage. Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127. The words complained of in this case do not fall within any of these classes, except the last, and, if actionable only by reason of special damage, that was neither alleged nor proven. Formerly words imputing unchastity to a female were not actionable per se, but only when special damages were alleged and shown as the direct result of the charge. Pollard v. Lyon, 91 U. S. 225;Bassell v. Elmore, 48 N. Y. 561;Terwilliger v. Wands, 17 N. Y. 54; Wilson v. Goit, Id. 442; Williams v. Hill, 19 Wend. 305; Odgers, Sland. & L. p. 84. But the rule was abrogated in this state by statute. Laws 1871, c. 219; Code, § 1906. And yet this court held, after the rule was abolished, that words infinitely more injurious to a female than those complained of in the case at bar were not actionable, without allegation and proof of special damage as the direct result of the words. Anon., 60 N. Y. 262. Women are now engaged in most of the professions and occupations of...