Harwood Pharmacal Co. v. National Broadcasting Co.

• Decision Date: 20 April 1961
• Docket Number: BROAD-CASTING
• Citation: 9 N.Y.2d 460,174 N.E.2d 602,214 N.Y.S.2d 725
• Parties: , 174 N.E.2d 602 HARWOOD PHARMACAL CO., Inc., Respondent, v. NATIONALCO., Inc., et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 725

214 N.Y.S.2d 725

9 N.Y.2d 460, 174 N.E.2d 602

HARWOOD PHARMACAL CO., Inc., Respondent, v. NATIONAL BROAD-CASTING CO., Inc., et al., Appellants.

Court of Appeals of New York.

April 20, 1961.

Carleton G. Eldridge, Jr., and Frederic R. Coudert, III, New York City, for appellants.

Paul L. Ross, New York City, for respondent.

DESMOND, Chief Judge.

In this libel suit defendants' motion to dismiss the complaint for insufficiency was denied below but the Appellate Division granted defendants leave to appeal here, probably because of our decision in Drug Research Corp. v. Curtis Pub. Co., 7 A.D.2d 285, 182 N.Y.S.2d 412, reversed 7 N.Y.2d 435, 199 N.Y.S.2d 33.

Plaintiff is the manufacturer of a pharmaceutical product known as 'Snooze' and all the defendants, it is alleged, had to do in one way or another with the production and exhibition on December 26, 1957 of a television program. During the telecast, so the complaint alleges, one of the performers displayed to his audience an object purporting to be a package of plaintiff's product 'Snooze' and said: "Snooze', the new aid for sleep. Snooze is full of all kinds of habit-forming drugs. Nothing short of a hospital cure will make you stop taking Snooze. You'll feel like a run-down hound dog and lose weight.'

The complaint says that these statements were false and defamatory, uttered and broadcast maliciously and with the intent of ridiculing and damaging plaintiff and its product. Damages in a large amount are demanded but no special damages are pleaded (see Seelman, Law of Libel and Slander, p. 388; Drug Research Corp. v. Curtis Pub. Co., 7 N.Y.2d 435, 441, 199 N.Y.S.2d 33, 37, supra). Defendants insist that this pleading is insufficient because the allegedly televised statements are not defamatory per se of plaintiff itself as distinguished from its product 'Snooze' and no special damages are set forth. The courts below were right in rejecting those contentions. Reasonably read, the broadcast words could be held by a jury to be as to plaintiff as well as to its product 'of so defamatory a nature as to directly affect credit and to occasion pecuniary injury' (Reporters' Ass'n of America v. Sun Printing & Publishing Ass'n, 186 N.Y. 437, 441, 79 N.E. 710, 711; First Nat. Bank of Waverly v. Winters, 225 N.Y. 47, 131 N.E. 459).

Since the Drug Research Corp. decision (7 N.Y.2d 435, 199 N.Y.S.2d 33, supra) is our most recent in this general filed we will first discuss that case. Plaintiff Drug Research Corporation was the manufacturer of the disparaged pill. We dismissed its complaint because while the magazine article discussed plaintiff's product and charged another corporation with fraudulent advertising and marketing practices as to the product, there was nothing in the article defamatory of plaintiff itself. 'The article in its entirety', we wrote (7 N.Y.2d at page 440, 199 N.Y.S.2d at page 37) 'is at variance with the construction that it was written of and concerning the plaintiff.' All the members of this court were in agreement as to the applicable rule but we differed as to the meaning of the particular magazine article complained of.

The clear distinction between this case and Drug Research Corp., supra, is that this allegedly telecast language could readily be understood by the television audience as charging the manufacturer of 'Snooze' with fraud and deceit in putting on the market an unwholesome and dangerous product (Larsen v. Brooklyn Daily Eagle, 165 App.Div. 4, 150 N.Y.S. 464, affirmed 214 N.Y. 713, 108 N.E. 1098). Mere disparagement of the quality, design and performance of a rifle manufactured by plaintiff were held in the famous case of Marlin Fire Arms Co. v. Shields, 171 N.Y. 384, 64 N.E. 163, 59 L.R.A. 310, not to be libelous per se as to the manufacturer. But the Marlin opinion carefully pointed out (171 N.Y. at page 390, 64 N.E. at page 164) that the words published by defendant, while they criticized the firearm, did not charge that 'plaintiff was guilty of any...