Krug v. Pitass

• Citation: 56 N.E. 526,162 N.Y. 154
• Parties: KRUG v. PITASS et al.
• Decision Date: 27 February 1900
• Court: New York Court of Appeals

162 N.Y. 154

56 N.E. 526

KRUG

v.PITASS et al.

Court of Appeals of New York.

Feb. 27, 1900.

Appeal from supreme court, appellate division, Fourth department.

Action by Julius F. Krug against John Pitass and others. From a judgment of the appellate division (44 N. Y. Supp. 864) affirming a judgment for plaintiff, defendants appeal. Reversed.

This is an action to recover damages alleged to have been caused by the publication of an article concerning the plaintiff in a newspaper published in the Polish language at the city of Buffalo, known as ‘Polak W. Ameryce,’ or the ‘Pole in America.’ The defendant Pitass was the proprietor of said newspaper, the defendant Slisz the editor, and the article in question was a communication signed by the other defendant, Smeja. The plaintiff, a practicing physician, kept a drug store in the Polish section of Buffalo, and was largely patronized by the people of that nationality, among whom said newspaper was widely circulated. On the 23d of February, 1894, the communication in question was published in the Polish language, and, as translated by a witness for the plaintiff upon the trial, was as follows:

‘Buffalo, New York. Respectable Sirs: Excuse me for the trouble I do you, but I must complain of a certain Dutchman doctor who lives from the Poles, dwells among them, and that which he is and which he has, he has the Poles to thank for. However, at every opportunity, he scorns them, and talks about them in a contemptible manner. I will now tell you of a certain incident of which I have been a witness. It was on the evening of the 3d or 4th of February, this year, that I met Dr. Krug at the corner of Broadway and Kuempel street. After the shake of hands, I asked him about the health of one of the members of our society, asking him to tell me the truth, whether he really is sick. Dr. Krug got so mad about it that he began to holler as if the devils were skinning him, and abused the Poles for all the world stands. He hollered that the Poles are a damned cattle, a confounded nation, scoundrels, loafers, sows, and so on. Seeing that the Dutchman was furious with madness, I called his attention that he be more careful in his words, for that can hurt him very much. Dr. Krug answered me: ‘I don't care for the Poles. I can get along without them, and you can go to the defvil.’ This what I have said about I can corroborate under oath, and I wish to be responsible for it. Now, I recall myself to all the Polish societies and all the Poles of Buffalo that they consider whether we can allow to be so disrespected by such a first or second fool as Dr. Krug. Can we trust ourselves and our families under the care of such a man when Dr. Krug so hates the Poles that he could drown each one in a spoon of water? A universal contempt should meet this scoundrel who does not know that the Poles are just as good, and maybe better, citizens than Dr. Krug. Such people as the latter brings disgrace not only to their own nationality, but also all the American citizens. It would be a great time that the Poles of Buffalo be convinced what kind of an enemy to them Dr. Krug is. Marcel Smeja, 1060 Broadway, President of the St. Joseph Society.

‘The above correspondence Marcel Smeja signed in our presence, and said he would be responsible for it. J. M. Rozan. M. Wojcieshowski.’

The translation given by a witness for the defendants was substantially the same, except that it spoke of the plaintiff as a ‘German doctor’ instead of a ‘Dutchman doctor,’ and towards the close of the article the version was as follows: ‘Now I call myself to all the Polish societies, and to all the Poles in Buffalo, whether we should allow such a first better blockhead or fool, as Dr. Krug, whether to such a man we can intrust ourselves and our families to cure, when Dr. Krug so hates the Poles that he would drown them in a spoon of water. Universal conpempt should meet such a good for nothing, or fellow, who does not know that the Poles are as good or better citizens than Dr. Krug, for such a man as the last brings disgrace not only to their own nationality, but the whole American public. It will be time that Poles in Buffalo should learn how great an enemy of theirs is Dr. Krug.’‘Drowning a man in a spoonful of water,’ as the witnesses on both sides testified, is a Polish expression, meaning that the perosn spoken of ‘would do anything, but not heal,’ or that ‘he would not hurt or help a man if he could.’ The defendants answered separately, admitting the publication, but denying the accuracy of the translation as alleged in the complaint. Each denied that he acted through malice, and pleaded as a justification that the article was true. Upon the trial it appeared that the plaintiff had given to a member of a benevolent society, of which the defendant Smeja was president, a certificate that he was ill so as to enable him to obtain ‘a sick benefit’; that on the 2d of February, 1894, the plaintiff met Smeja, who inquired about the illness of this man, and a controversy arose between them, during which, as it was claimed, the plaintiff abused the Polish people, and this led to the preparation of the article by Smeja, who took it to Slisz, the editor, vouched for its accuracy, and requested him to publish it. It was then published by direction of the editor, without the knowledge of the defendant Pitass, who had nothing to do with the publication except that he owned the newspaper. Each of the defendants testified that he had no malice or ill will towards the plaintiff. The defendant Pitass, on cross-examination, swore that he never had any ill feeling towards the plaintiff, and never told any one that he was going to run him out of town. The plaintiff was allowed to show, under objection and exception, in due form, that, four or five years before the communication was published, the defendant Pitass said the plaintiff ‘was no doctor, as far as he knew about him, and he thought he could cure cattle or pigs, or something of the kind, but not people, and that this place, in Buffalo here, is no place either for him or the man from Fillmore avenue’; and that he would not be very long in Buffalo. This evidence, although offered in rebuttal, was received, according to the declaration of the trial judge, ‘as direct evidence on the question of malice.’ The jury rendered a verdict in favor of the plaintiff for $6,250, and, the judgment entered thereon having been affirmed in the appellate division by a divided vote, the defendants appealed to this court.

L. P. Hancock and John W. Fisher, for appellants.

F. P. Munsey and Leroy Andrus, for respondent.

VANN, J. (after stating the facts).

The article in question, according to either translation, was libelous upon its face, because it charged the plaintiff with a want of professional ability and integrity, and thus endangered the gain derived from his vocation. Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457;Mattice v. Wilcox, 147 N. Y. 624, 42 N. E. 270; Flood, Libel, 114. Referring to him as a physician, it called him a blockhead or fool, and appealed to all the Poles in Buffalo not to intrust themselves or their families to his professional care, when he so...