Kennedy v. James Butler, Inc.

• Decision Date: 10 May 1927
• Citation: 156 N.E. 666,245 N.Y. 204
• Parties: KENNEDY et al. v. JAMES BUTLER, Inc.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 204

156 N.E. 666

KENNEDY et al.

v.JAMES BUTLER, Inc.

Court of Appeals of New York.

May 10, 1927.

Action by John Kennedy and another against James Butler, Incorporated. From an order of Appellate Division (219 App. Div. 712, 219 N. Y. S. 845), affirming an order of Special Term denying defendant's motion for judgment on the pleadings, defendant appealed by permission, and the Appellate Division certified a question (219 App. Div. 822, 220 N. Y. S. 875).

Question answered, and order affirmed.

Appeal from Supreme Court, Appellate Division, First department.

John H. Rogan and Lilian Herbert Andrews, both of New York City, for appellant.

John J. White, Jr., of New York City, for respondents.

CRANE, J.

The Appellate Division has certified to us the question, ‘Does the complaint in this action state facts sufficient to constitute a cause of action?’

The action is for libel. The complaint alleges that the defendant, a domestic corporation, wrote and caused to be sent to the managers of its retail grocery stores throughout the city of New York a circular which reads as follows:

‘Headquarters, December 1st, 1925.

‘#8080

‘To the Manager:

‘On November 10th Edward Kennedy, who was employed in our store at 954 Second Ave., was shot and subsequently died. All Kennedy's expenses while in the hospital, his doctor bills and legitimate funeral expenses are being paid for by us. His mother, who lives in Ireland, will receive suitable compensation amounting to several thousand dollars.

‘We are giving you these facts because there are two brothers of Kennedy's [meaning the plaintiffs] in the country who seem to be trying to make capital out of his death. We are informed that they [meaning the plaintiffs] are visiting our stores selling tickets for a benefit which they [meaning the plaintiffs] say is to be held in order to raise money to pay for his funeral expenses. This is entirely unnecessary and an imposition on your sympathy and good will.

‘Yours truly,

‘James Butler Grocery Co.’

This article, it was alleged, was false and untrue, and maliciously written and circulated to injure the plaintiffs. That the statements contained in the circular are libelous, if untrue, is quite apparent. The statements, however, are not actionable unless published to a third party. The point made by the appellant is that it appears on the face of the complaint that the defamatory matter has not been published. Was the sending of this circular to the managers of the defendant's various retail stores throughout the city of New York a publication of the libel?

The case of Prins v. Holland-North America Mortg. Co., 107 Wash. 206, 181 P. 680, 5 A. L. R. 451, held that the publication of a libel is the communication of defamatory matter to some third party, and that there is no publication of a libelous letter written at the main office of a corporation and sent to its own branch office where it is read only by its own officers and agents. Such also was the ruling in Central of Georgia R. Co. v. Jones, 18 Ga. App. 414, 89 S. E. 429. Both of these cases referred to a decision of the Appellate Division of the Supreme Court of this state (Owen v. J. S. Ogilvie Pub. Co., 32 App. Div. 465, 53 N. Y. S. 1033), which held that a letter having reference to the business of a corporation and containing libelous matter is not published within the meaning of the Libel Law when dictated by the manager of the corporation to his stenographer. It is to be noticed, however, that the opinion in that case concedes that there can be a publication of a libel by a corporation by reading the libelous matter to a servant of such corporation or delivering it to be read. It says:

‘Where the duties devolved upon such servant are distinct and independent of the process by which the libel was produced, he might well stand in the attitude of a third person through which a libel can be published. But such rule may not be applied where the acts of the servants are so intimately related to each other as is disclosed in the present record and the production is the joint act of both.’

This decision, therefore, went no further than to hold that libelous matter bearing upon the week of the corporation, dictated to a stenographer, written out and signed, is not a publication thereof. Whether such a letter sent out to other employees would be a publication was not decided. The Ogilvie Case did not come to this court and apparently is in conflict with the cases of Pullman v. Hill & Co., Limited, [1891] 1 Q. B. 524; Gambrill v. Schooley, 93 Md. 48, 48 A. 730,52 L. R. A. 87, 86 Am. St. Rep. 414;Ferdon v. Dickens, 161 Ala. 181, 49 So. 888;Nelson v. Whitten (D. C.) 272 F. 135. Newell in his work on Libel and Slander speaks of the Gambrill decision as being the leading American case (4th Ed. p. 242). See, also, Odgers on Libel and Slander (5th Ed. p. 161.) Whether this court would uphold the ruling in the Ogilvie Case...