John W. Lovell Co. v. Houghton

• Decision Date: 26 November 1889
• Citation: 22 N.E. 1066,116 N.Y. 520
• Parties: JOHN W. LOVELL CO. v. HOUGHTON et al.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 520

22 N.E. 1066

JOHN W. LOVELL CO.

v.HOUGHTON et al.¹

Court of Appeals of New York, Second Division.

Nov. 26, 1889.

Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment dismissing the complaint, entered upon a verdict for the defendants, found by direction of the court. The action was brought to recover damages for certain written and oral statements made by the defendants concerning plaintiff's editions of two of the poet Longfellow's prose works, ‘Hyperion’ and ‘Outre-Mer.’ The plaintiff claimed the statements to have been false; that they were maliciously made, and resulted in great damage to plaintiff's business. These books were published by the plaintiff in the year 1882. The early edition of ‘Hyperion’ was published in 1839, and of ‘Outre-Mer,’ in 1835. It appears, therefore, that the limit of time for the terms of the copyrights had expired; such limit, together with the renewal permitted, being 42 years. But in 1869 Mr. Longfellow obtained a copyright for a revised edition of such works, so the president of the plaintiff, being unable to purchase a copy of the early edition, sent his brother to the library of Harvard University, with instructions to carefully compare a copy of the later edition with a copy of the first edition, which was there preserved, and to make the former, by alterations, an exact copy of the latter. He did not succeed in making it an exact copy, for the book, when published, contained 183 variations,-variations made by Mr. Longfellow, and constituting a part of the ground of his claim for copyright. ‘Outre-Mer’ also contained variations from the original editions, and which were in defendants' editions. The defendants had been, with their predecessors, for a long time, the publishers of the works of Mr. Longfellow, under contract with him with respect to the same, and copyrights thereof, and were then publishing editions of ‘Hyperion’ and ‘Outre-Mer,’ revised by Mr. Longfellow, for which a copyright had been obtained in the year 1869. Immediately after the publication of plaintiff's edition of ‘Hyperion,’ it was brought to the attention of the defendants. An examination at once disclosed that plaintiff's edition was not an exact copy of the first edition, but contained alterations and variations which could only be found in Mr. Longfellow's revised edition of 1869. Thereupon the defendants published a caution to the trade and public against buying the plaintiff's book, characterizing it as ‘a direct infringement of copyright, and a violation of the rights of Mr. Longfellow's heirs, and his publishers.’ Other facts sufficiently appear in the opinion. The court directed a verdict for the defendant.

Roger Foster, for appellant.

Joseph H. Choate, for respondents.

PARKER, J., ( after stating the facts as above.)

The learned trial judge held that the publication complained of was a privileged communication; that the evidence adduced did not justify a finding by the jury that the publication was malicious; and directed a verdict in favor of the defendants. Whether the publication was a privileged communication had an important bearing upon the question of the sufficiency of plaintiff's proof to justify a submission to the jury. The publication was prima facie a libel. In such a case, proof of malice is not required, beyond evidence of the publication itself, because the law presumes malice. When, however, the publication is in fact a privileged communication, the rule is that upon the plaintiff rests the additional burden of proving the existence of express malice. Klinck v. Colby, 46 N. Y. 427. The rule is the same, whether the action be regarded as one for slander of title or for libel simply. Hovey v. Pencil Co., 57 N. Y. 125. Whether the subject-matter to which the alleged libel relates, and the interest in it of defendants, are such as to render the publication privileged, and therefore prima facie excusable, is a question for the court. Klinck v. Colby, supra. When the facts upon which the defendants base their claim of privilege is challenged by the plaintiff, it then becomes the duty of the court to submit the question to the jury, under proper instructions, to determine the existence or non-existence of the facts upon which the privilege is sought to be founded. But where, as in this case, the facts upon which the claim of a privileged communication is sought to be established are uncontradicted, upon the court rests the duty of determining, as a matter of law, whether the communication be privileged or not. Did the court rightfully determine that question? Judge FOLGER said, in Hamilton v. Eno, that ‘the occasion that makes a communication privileged is when one has an interest in the matter, or a duty in regard to it, or there is a propriety in utterance, and he makes a statement in good faith to another, who has a like interest or duty, or to whom a like propriety attaches to hear the utterance.’ 81 N. Y. 116.Such an occasion is where a communication is fairly made by a person, in the discharge of some public or private duty, legal or moral, or in the conduct of his own affairs, in a matter where his interest is concerned. White v. Nicholls, 3 How, 266. In Klinck v. Colby, supra, the defendants, having been defrauded of a large amount of goods, and having probable cause to believe that plaintiff was a party to the fraud, signed a paper in which they stated that they had been ‘robbed and swindled’ by plaintiff and others, and agreed to bear equally the expense of prosecuting the offenders criminally. The court held, as a matter of law, that the exhibition of the paper to an agent of one of the parties defrauded, for the purpose of procuring the signature of the principal, was privileged. In Wren v. Weild, L. R. 4 Q. B. 730, an action of the same general character as this, the plaintiff...