Hinsdale v. Orange County Publications, Inc.

Decision Date05 May 1966
Citation17 N.Y.2d 284,217 N.E.2d 650,270 N.Y.S.2d 592
Parties, 217 N.E.2d 650 Robert HINSDALE, Appellant, v. ORANGE COUNTY PUBLICATIONS, INC., Respondent. Alfred RIEBER et al., Appellants, v. ORANGE COUNTY PUBLICATIONS, INC., Respondent.
CourtNew York Court of Appeals Court of Appeals

Lloyd L. Rosenthal, Poughkeepsie, and Levinson, Jenkins & Cassidy, Newburgh, for appellants.

Bruce O. Becker, Endicott, for respondent.

DESMOND, Chief Judge.

The plaintiffs in these two libel actions demand damages because of an article published in defendant's newspaper. Their complaints have been dismissed for insufficiency on the ground that the newspaper story was not libelous per se and that no special damages are pleaded as is required when the words are libelous Per quod but not per se.

On July 7, 1964 defendant's daily newspaper The Times Herald Record (of Middletown, N.Y.) contained this:

'Mr. and Mrs. Paul M. Hinsdale of Balmville Gardens, Newburgh, have announced the engagement of their son, Robert W., to Concetta Kay Rieber of 43 Knox Drive, New Windsor.

'Miss Rieber, a native of Brooklyn, was educated in Brooklyn and Newburgh schools. She is employed by Jack Wilkins Associates, Inc., at Newburgh.

'Her fiance attended Newburgh and Connecticut schools. He is the president of the Jacks Wilkins Associates insurance agency.

'The wedding is set for August.'

Plaintiff Hinsdale's complaint asserts that at the time of the publication defendant knew or by reasonable diligence could have learned that Mr. Hinsdale was and is married and the father of two children, and that Concetta Kay Rieber was and is married and the mother of three sons, and that there was and is no engagement to marry between Robert Hinsdale and Mrs. Rieber. The Hinsdale pleading alleges that defendant's newspaper was of general circulation not only in Middletown, New York, but also in the City of Newburgh and its environs, that plaintiff lives and is in business in Newburgh and that he has been defamed by the newspaper announcement and help up to public disgrace, scorn and ridicule.

The Rieber complaint, besides repeating some of Hinsdale's allegations, says that Mr. and Mrs. Rieber live in New Windsor, that the wife was and is employed in the City of Newburgh, that because of the newspaper item Mrs. Rieber's reputation has been damaged and an evil opinion of her induced in the minds of the people of the community and that because of her pain, shock, fright and physical and mental suffering the husband has been deprived of his wife's services and society and put to expense, etc.

Special Term, although it dismissed the complaints, conceded that the facts in Sydney v. Macfadden Newspaper Pub. Corp. (242 N.Y. 208, 151 N.E. 209, 44 A.L.R. 1419) were 'practically identical' to those in the present cases, holding that the controlling decision was the earlier one of O'Connell v. Press Pub. Co. (214 N.Y. 352, 108 N.E. 556). O'Connell, so the court reasoned, was not overruled by Sydney which expresses the rule that for a libel per se to be actionable without special damages the damage must arise from the publication itself 'without any reference to extrinsic facts, except those generally known to a substantial number of the community of the general reading public.' The court thought, apparently that these complaints did not meet the O'Connell test. The Appellate Division unanimously affirmed and gave plaintiffs leave to replead, a permission of which they did not make use. We granted plaintiffs leave to appeal to this court.

It is not defamatory to say of a man or woman that he or she is engaged to be married but an announcement that an already married male or female is about to be married to a new partner imputes a violation of commonly accepted rules of marital morality, a deviation from community norms. It does not necessarily charge sexual immorality but to many minds it suggests a disregard of existing commitments and obligations (see Thayer v. Worcester Post Co., 284 Mass. 160, 162, 163, 187 N.E. 292, and, similarly, Cassidy v. Daily Mirror, 2 K.B. 331, 337, 338 (1929)). Surely such an announcement about a seemingly happily married person comes as a surprise and shock to relatives and acquaintances. To publicize an imminent marriage between two already married persons who work in the same office and live in the same lightly populated area would normally cause a local scandal of considerable size. This announcement amounted, therefore, to a written accusation which tended to hold plaintiffs up to 'ridicule, contempt, shame, disgrace or obloquy, to degrade (them) in the estimation of the community, * * * to diminish (their) respectability' (see 1 Seelman, Libel and Slander in New York, p. 8, 'Composite Definition', par. 18).

As Chief Justice Rugg pointed out in Lyman v. New England Newspaper Pub. Co. (286 Mass. 258, 263, 190 N.E. 542, 544, 92 A.L.R. 1124): '(T)o say in print of a husband and wife that they have ceased to live together in harmony does some injury to the reputation of each.' Other courts in this State and elsewhere have agreed that a false statement as to a married person that he or she is about to be or has been divorced is defamatory (see Woolworth v. Star Co., 97 App.Div. 525, 90 N.Y.S. 147; Rivers v. New York Evening Journal Pub., 120 App.Div. 574, 104 N.Y.S. 1081; Horton v. Binghamton Press Co., 122 App.Div. 332, 333, 106 N.Y.S. 875, app. dsmd. 200 N.Y. 550, 93 N.E. 1122; De Festetics v. Sun Print. & Pub. Ass'n., 57 Misc. 194, 109 N.Y.S. 30; Gersten v. Newark Morning Ledger Co., 52 N.J.Super. 152, 145 A.2d 56).

Printed material is, because of the relative permanency of its impact, more readily held to be defamatory per se than are oral utterances of similar import (Ostrowe v. Lee, 256 N.Y. 36, 175 N.E. 505; Gurtler v. Union Parts Mfg. Co., 1 N.Y.2d 5, 150 N.Y.S.2d 4, 132 N.E.2d 889). We conclude, therefore, that printed statements like those in this newspaper announcement about married people are libelous per se, that is, that, without a showing of 'special' damage, they raise a presumption of inevitable actual damage to reputation (Julian v. American Business Consultants, 2 N.Y.2d 1, 155 N.Y.S.2d 1, 137 N.E.2d 1; Harwood Pharmacal Co. v. National Broadcasting Co., 9 N.Y.2d 460, 214 N.Y.S.2d 725, 174 N.E.2d 602).

But the newspaper article here complained of does not itself refer to the fact (alleged in the complaint and now conceded) that the 'engaged' couple were in truth already married to others and living with their respective spouses. Defendant says--and the courts below agreed--that since the published material needs the allegation of existing facts the libel, if any, is not per se but Per quod and, lacking any allegation of special damages, is not actionable. The authority cited for this 'rule' is O'Connell v. Press Pub. Co. (214 N.Y. 352, 108 N.E. 556, supra). Plaintiffs counter by citing Sydney v. Macfadden Newspaper Pub. Corp. (242 N.Y. 208, 151 N.E. 209, 44 A.L.R. 1419, supra) and other cases in this court before and after O'Connell (Morey v. Morning Journal Assn., 123 N.Y. 207, 25 N.E. 161, 9 L.R.A. 621; Blake v. Sun Print & Pub. Assn., 229 N.Y. 515, 129 N.E. 897; Smith v. Smith, 236 N.Y. 581, 142 N.E. 292; Ben-Oliel v. Press Pub. Co., 251 N.Y. 250, 167 N.E. 432; Braun v. Armour & Co., 254 N.Y. 514, 173 N.E. 845; Spector v. New Syndicate Co., 280 N.Y. 346, 21 N.E.2d 185; Henry v. New York Post, 280 N.Y. 842, 21 N.E.2d 887; Balabanoff v. Hearst Const. Pubs., 294 N.Y. 351, 62 N.E.2d 599). In each of those lawsuits a publication got from the courts the benefit of libel per se treatment although in each instance the writing was per se defamatory only because of extrinsic facts alleged in the complaint but not part of the published matter (for cases in other States see Pitts v. Spokane Chronicle Co., 63 Wash. (2d) 763, 388 P.2d 976; Murphy v. Harty, 238 Or. 228, 250, 393 P.2d 206; Conroy v. Breland, 185 Miss. 787, 189 So. 814; see, also, 3 Restatement, Torts, § 563, comments e, f). As Professor Henn wrote in 47 Cornell Law Quarterly at page 16, New York was one of the 'pioneers' in promoting the rule as to libel by extrinsic fact.

The Sydney v. Macfadden Newspaper Pub. Corp. (242 N.Y. 208, 151 N.E.2d 209, 44 A.L.R. 1419, supra) decision would seem to control here. The plaintiff was a well-known actress of the day, known professionally under her maiden name of Doris Keane but married to one Basil Sydney. That latter fact was alleged in the complaint but nowhere alluded to in the newspaper column which was held to be libelous per se. The offending newspaper article said that Doris Keane was the 'latest lady love' of Fatty Arbuckle, a movie comedian of the day whose claims to fame did not include a reputation for virtuous life. The columnist intimated that Doris Keane and Arbuckle were to marry. Defendant argued that the extrinsic fact of plaintiff's marriage could not be considered in determining whether the article was libelous per se. This court, however, rejected that argument. The majority opinion in Sydney cited with approval Morey v. Morning Journal Assn. (123 N.Y. 207, 25 N.E. 161, 9 L.R.A. 621) where the newspaper article reported that a man (married although the newspaper did not say so) was threatened with a breach of promise suit. No special damages were alleged or proved,...

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