Kimmerle v. New York Evening Journal, Inc.

• Decision Date: 23 May 1933
• Parties: KIMMERLE v. NEW YORK EVENING JOURNAL, Inc.
• Court: New York Court of Appeals Court of Appeals

262 N.Y. 99

186 N.E. 217

KIMMERLE

v.NEW YORK EVENING JOURNAL, Inc.

Court of Appeals of New York.

May 23, 1933.

Action by Katherine Kimmerle, also known as Katherine Kumerle Lindauer, against the New York Evening Journal, Inc. From an order of the Appellate Division (236 App. Div. 579, 260 N. Y. S. 315), affirming an order of the Special Term so far as it denied defendant's motion to dismiss the first cause of action stated in the complaint, plaintiff appeals pursuant to leave granted by the Appellate Division, which certified the question as to the sufficiency of such cause.

Orders reversed, motion granted, and question answered in the negative.

Appeal from Supreme Court, Appellate Division, First department.

Charles C. Smith and Charles Henry, both of New York City, for appellant.

Edward S. Blackstone, of New York City, for respondent.

CROUCH, Judge.

The action is for libel. The first cause of action as stated in the complaint has been held sufficient. The question of its sufficiency has been certified to this court. The answer depends solely upon whether the following words which ‘on the 2d day of September, [262 N.Y. 101]1931, the defendant in its newspaper republished of and concerning the plaintiff,’ are libelous per se:

‘Weds Sister-in-Law.

‘She accepted him and on January 16, 1905, they were married. Five days later Hoch was courting Mrs. Catherine Kimmerly in New York, in a rooming house she conducted, in 47th Street at Tenth Avenue.

‘Mrs. Fisher complained to Chicago police about the disappearance of her husband. This report called attention to his previous marriage and his wife's death. Police exhumed the body. Poison was found. The dirty blood-smeared record he'd left behind came quickly to light.

‘The alarm went out for Hoch as a murderer.

‘Detective James J. O'Neill, a rookie of the W. 47th St. police station, turned Hoch in. It was chance that led him to the rooming house. He noticed two new trunks being taken in. He inquired about their ownership. He learned they belonged to a man after the description of Hoch. He won Mrs. Kimmerle's confidence. He went to the house one night when Hoch was downstairs. He stumbled, purposely entering the parior. He fell against the wily German, stripped him of the pistol he had in a dressing gown pocket.

‘The arch fiend was trapped.

‘Hoch was strung from the gallows in Chicago, February 23, 1906.'

We must take this somewhat cryptic narrative as it appears in the complaint, disregarding the explanatory matter in the briefs. We may infer that the alleged libel is a republication of part of an old news article at some time appearing in defendant's newspaper. We may also infer that the entire article described the criminal career of one Hoch.

It has been held that the pleading was sufficient because the purport of the whole article was such as to disgrace the plaintiff and to cause her shame among those who knew her.

The law of defamation is concerned only with injuries to one's reputation. Except to the limited extent provided by statute(Civil Rights Law [Consol. Laws, c. 6], § 50), there is no right of privacy. Roberson v. Rochester Folding-Box Co., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828. Written words, the effect of which is to invade privacy and to bring undesired notoriety, are without remedy, unless they also appreciably affect reputation. This is the domain, not of positive law, but of obedience to the unenforceable. ‘Law and Manners' by Lord Moulton, 134 The Atlantic Monthly, 1. From such harms one is protected only by the code of common decency.

Reputation is said in a general way to be injured by words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society. Sydney v. MacFadden Newspaper Pub. Corp., 242 N. Y. 208, 212, 151 N. E. 209, 210, 44 A. L. R. 1419.

We shall assume, although it is not alleged, that widespread notoriety came to the plaintiff from the publication in question and that she suffered greatly as a result. But there must be something more than that to make it libelous. Considered and weighed ‘in the minds of right-thinking persons' (Sydney v. MacFadden Newspaper...