Schoepflin v. Coffey

Decision Date27 February 1900
Citation56 N.E. 502,162 N.Y. 12
PartiesSCHOEPFLIN v. COFFEY.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Fourth department.

Action for libel by Charles F. Schoepflin against Michael J. Coffey. From a judgment of the appellate division (49 N. Y. Supp. 627) affirming a judgment for plaintiff, defendant appeals. Reversed.

John Cunneen, for appellant.

Norris Morey, for respondent.

MARTIN, J.

This action was for both slander and libel. The complaint contains five counts. The first and fifth are for libel, and the remainder for slander. Upon the trial the court held that the complaint did not state a cause of action for slander, as the words alleged were not actionable per se, and no special damages were averred. From this determination no appeal was taken. The case was, however, submitted to the jury as an action for the libel charged in the first and fifth counts of the complaint. These counts, in substance, charge: That on the 15th day of May, 1895, at Albany, the defendant maliciously spoke and published concerning the plaintiff the false and defamatory words following: ‘An indictment has been issued against Schoepflin (meaning this plaintiff) by the grand jury of Albany county in connection with Campbell's ice bill, and a warrant is out for his arrest.’ ‘I know that an indictment has been found against Schoepflin (meaning this plaintiff) by the grand jury in connection with Campbell's ice bill, from the best authority in the world. I would gamble on it,’-meaning and declaring thereby that he knew the grand jury of Albany county had found an indictment against the plaintiff, who was then a member of the legislature, for corrupt and criminal conduct in connection with a bill which had been introduced and was pending in the assembly. That such statements were made in the presence of G. Edward Graham, and in the presence of G. Edward Graham and Lewis J. Seabold, and that Graham was the manager of the Associated Press at Albany, and Seabold was a reporter and news gatherer for the New York World. It then averred, ‘And thereby defendant caused said false and defamatory statement to be printed and published in most of the daily newspapers of the state of New York and in the said New York World.’

The first question argued was whether the complaint alleged a cause of action against the defendant for libel. It is to be observed that after stating the slanderous words which were alleged to have been spoken in the presence of Graham and Seabold, and the fact that they were reporters, the plaintiff alleges that thereby the defendant caused those statements to be printed and published. The complaint contains no direct allegation that the defendant caused them to be printed and published, but after stating certain premises, which included the speaking of the words in the presence of the reporter and manager of the Associated Press, it is averred as a conclusion from the preceding allegations, but not as a fact, that the defendant thereby caused the statements to be printed and published. Obviously, the word ‘thereby’ was used in the sense of ‘by that means,’ or in consequence of the preceding allegations, and hence the averment was of a conclusion as to the effect or result of the facts previously alleged. If they were untrue, the plaintiff could not be convicted of perjury for falsely alleging and verifying an averment that the defendant caused the statements made by him to be printed and published, as he made no such allegations, but merely stated his deduction from the preceding facts. Obviously the complaint contains no sufficient allegation that the defendant caused the printing or publication of the words spoken, to constitute a cause of action against him for libel. We have, however, searched the record in vain to find any proper objection or exception which enables the defendant upon this appeal to avail himself of the insufficiency of the complaint. To raise that question, it was necessary that an objection to its sufficiency should have been taken, and the ground upon which it was claimed to be insufficient should have been brought to the attention of the court. It is not a fatal objection on appeal that the cause was tried outside the pleadings, in the absence of some specific objection to that course. Parties may, if they so elect, depart from the issues made by the pleadings and try other questions relating to the merits of the controversy, by consent or acquiescence. Farmers' Loan & Trust Co. v. Housatonic Railroad Co., 152 N. Y. 251, 46 N. E. 504. As the question of the sufficiency of the complaint was not properly raised in the court below, it cannot be raised here for the first time.

The next question presented is whether the proof was sufficient to justify the court in submitting to the jury the question whether the defendant caused or procured the publication of the alleged libel. In discussing this question, we shall assume that a person who requests, procures, or directs another to publish a libel, or connives at or assists in its publication, is liable therefor. But, to justify a jury in finding a defendant liable for such publication, there must be some evidence that it was procured by him, or that he was guilty of some affirmative act which secured or induced it. The mere speaking of words in the presence of third persons that are not actionable per se would, at most, amount to a mere slander, even if special damages were alleged, and their repetition or the printing and publication of them by the independent act of a third party would not render the person speaking them responsible therefor. It is too well settled to be now questioned that one who utters a slander, or prints and publishes a libel, is not responsible for its voluntary and unjustifiable repetition, without his authority or request, by others over whom he has no control, and who thereby make themselves liable to the person injured, and that such repetition cannot be considered, in law, a necessary, natural, and probable consequence of the original slander or libel. Newell, Defam. 245; Moak, Underh. Torts, 145; McGregor v. Thwaites, 3 Barn. & C. 35. The remedy in such a case would be against the party who printed and published the words thus spoken, and not against the one speaking them, as a person is not liable for the independent, illegal acts of third persons in publishing matters which may have been uttered by him, unless they are procured by him to be published, or he performed some act which induced their publication. Ward v. Weeks, 7 Bing. 211; Olmsted v. Brown, 12 Barb. 657. The repetition of defamatory language by another than the first publisher is not a natural consequence of the first publication, and therefore the loss resulting from such repetition is not generally attributable to the first publisher. This rule is based upon the principle that every person who repeats a slander is responsible for the damage caused by such repetition, and that such damage is not the proximate and natural consequence of the first publication of the slander. Bassell v. Elmore, 48 N. Y. 564;Fowles v. Bowen, 30 N. Y. 20;Terwilliger v....

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    • March 26, 2015
    ...authority or request, by others over whom he has no control.'" Geraci v. Probst, 938 N.E.2d 917, 921 (N.Y. 2010) (quoting Schoepflin v. Coffey, 56 N.E. 502, 504 (1900)). Plaintiff states that "the republication of [Zeligson's report] was done with the consent of . . . Paul E. Breene," Am. C......
  • Van-Go Transport v. New York City Bd. of Educ.
    • United States
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    ...who makes a defamatory remark is not liable for its repetition if they have no control over the publication. See Schoepflin v. Coffey, 162 N.Y. 12, 17, 56 N.E. 502 (N.Y.1900). In New York, consent to publication is a bar to a defamation action. See Teichner v. Bellan, 7 A.D.2d 247, 251, 181......
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    ...... Slander & Libel (4 Ed.), sections 303-5, page 339; Odgers,. Libel & Slander (5 Ed.), 177-8; 36 C. J. 1230; Schoepplin. v. Coffey, 162 N.Y. 12, 56 N.E. 502; Shurtleff v. Parker, 130 Mass. 293, 30 Am. Rep. 454; Bigley v. Nat. Fid. & Cas. Co., 94 Neb. 813, 144 N.W. 810, 50 ......
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    ...cannot have liability for defamation"]). Accurately republishing a defamatory statement is still defamation ( Schoepflin v. Coffey , 162 N.Y. 12, 18, 56 N.E. 502 [1900] [stating "principle that every person who repeats a slander is responsible for the damage caused by such repetition"]; Bir......
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