Morrison v. Smith

• Decision Date: 09 February 1904
• Parties: MORRISON v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

177 N.Y. 366

69 N.E. 725

MORRISON

v.SMITH et al.

Court of Appeals of New York.

Feb. 9, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Lillian Coleman Morrison against Ormond G. Smith and others. From a judgment of the Appellate Division (82 N. Y. Supp. 166) affirming a judgment for defendants on dismissal of the complaint, plaintiff appeals. Reversed.

Israel A. Washburne, for appellant.

Joseph Fettretch, Theodore H. Silkman, and Daniel E. Seybel, for respondents.

GRAY, J.

In this action, which is for libel, the complaint alleges that in the defendants' magazine was printed the following advertisement: ‘Illustrated new book. Up-to-date. The experience of a giddy typewriter girl in New York. Typewritten. GOOD is no name for it. Sent in plain wrappers, postpaid, on receipt of 25c. in silver or stamps. Dell Book Co., 119 Flournoy St., Chicago.’ It was then alleged that ‘accompanying these words and completing the advertisement was the picture of a young and comely woman, and this picture was a likeness of the plaintiff,’ and that ‘the meaning of this advertisement was that the plaintiff had been the subject of an unchaste and indecent experience.’ At the trial the plaintiff proved that she was a married woman, and an actress, acting under her maiden name; that the portrait accompanying the advertisement was one of herself; and that she never had been a typewriter. But upon this proof a motion to dismiss the complaint was granted upon the ground that the words could not be given the construction placed upon them by the plaintiff. The Appellate Division affirmed the judgment of dismissal; the prevailing opinion in that court holding, in substance, that, while inclined to view the advertisement and portrait as libelous per se, or at least as presenting a question for the jury in that respect, the court was to determine only whether the plaintiff was right in the construction set out in her complaint. It was held that she had tendered an issue as to whether the words used were ‘susceptible per se of the interpretation that they charge her with unchastity,’ and that she had failed ‘to sustain the burden thus placed upon her.’

The question is a clean-cut one which we must determine, and it is whether, because the plaintiff has, by innuendo, put a meaning upon the language, she is bound by it, and, however libelous the language standing alone, she must fail in her action if that meaning is not supported by the language or by proof. I am not inclined to concur in so restricted a view of the plaintiff's position, and I am not aware of any decision of this court compelling it. It appears to have support in some decisions of the Appellate Division, and hence the question is made serious, if we shall determine it the other way. But I think, if we regard some general rules, which are now established in this class of cases, and if we follow that instinct of justice to which common sense impels our judgment, that we will find neither rule, nor principle, opposing a contrary view to that adopted by the majority of the learned justices of the Appellate Division. At common law that which implied reproach, scandal, or ridicule to any person, and reflected disgracefully upon his character, whether written or spoken, was a libel, and was actionable without proof of special damage. The language used is to be understood by judge and jury in the same manner as others understand it, and words are to be taken in that sense which would be naturally conveyed to persons of ordinary understanding. The principle upon which the rule of legal liability for damages rests is that no man possesses the right to lessen the comforts or the enjoyment of another, and that when he does so deliberately, wantonly, and maliciously it is prima facie evidence of malice, and he is bound to make compensation for the mischief occasioned. Therefore if by word or writing bad actions or vicious principles are imputed to a man, and his respectability is diminished, his comfort and his enjoyment are lessened by the attendant disgrace, contempt, or fidicule, and damage will be presumed. See Folkard's Law of Slander and Libel (5th Ed.) 165, 172, 177; Odgers' Libel and Slander (3d Ed.) pp. 7, 18, 336; Root v. King, 7 Cow, 633;Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105;Morey v. Morning Journal Association, 123 N. Y. 207, 25 N. E. 161, 9 L. R. A. 621, 20 Am. St. Rep. 730. If the language is unambiguous, whether it is actionable becomes a question of law; but, if ambiguous, and capable of an innocent as well as of a disgraceful...