Stafford v. Morning Journal Ass'n

• Decision Date: 05 June 1894
• Citation: 142 N.Y. 598,37 N.E. 625
• Parties: STAFFORD v. MORNING JOURNAL ASS'N.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 598

37 N.E. 625

STAFFORD

v.MORNING JOURNAL ASS'N.

Court of Appeals of New York.

June 5, 1894.

Appeal from supreme court, general term, first department.

Action by Stella Stafford against the Morning Journal Association for libel. From a judgment of the general term (22 N. Y. Supp. 1008) affirming a judgment for plaintiff, defendant appeals. Affirmed.

The action was brought to recover damages for the publication in the Morning Journal of an article complained of as libelous, and which reads as follows: ‘Le Huray Sisters, Blanche, Stella and Allien, just from Paris; massage, French style; love secrets; how to get a husband; inclose stamp; valuable information for ladies by aid of cards. Le Huray Sisters, 444 Second Ave., Mount Vernon, N. Y.’ The plaintiff recovered a verdict of $10,000, and the judgment thereupon was affirmed at the general term. The defendant then appealed to this court.

B. F. Einstein, for appellant.

Roger M. Sherman, for respondent.

GRAY, J.

We are quite satisfied with the disposition made by the general term of the questions presented by the appellant's exceptions at the trial, and the only one to which we shall refer is that arising upon exceptions to the admission of evidence as to the general reputation of the plaintiff for chastity and virtue. The complaint alleged that plaintiff was of ‘good character and repute, and enjoyed the respect of her friends and acquaintances and of the community.’ The answer stated that the defendant had ‘no knowledge or information sufficient to form a belief as to the allegations contained in that paragraph of the complaint.’ At the commencement of her case the plaintiff called witnesses to prove her allegations, and the defendant objected upon the grounds of immateriality and of incompetency, and also that ‘it is not one of the issues, under the pleadings.’ The general rule as to the impropriety of permitting a party to give evidence of his good reputation, in actions for the recovery of damages for libel of slander, has reference to cases where reputation is not a material issue, or where it has not been attacked. The reason for it is in the absence of any usefulness in proving that which the law already assumes, and because the character of the complainant does not form the basis for the recovery of general damages. But this case differs from those relied upon by the appellant, in certain aspects. In the first place, the plaintiff's allegation was put in issue by the answer. It is true that it was unnecessary for the plaintiff to allege as she did with respect to her reputation; but, having done so, the defendant, in choosing to make an issue upon it in his answer, opened the door for the offer of evidence. In the next place, when the question of materiality was raised, it was then open to the defendant to disclaim any purpose of questioning the plaintiff's reputation. But it did not do so. The objection that ‘it was not one of the issues, under the pleadings,’ of course, was not true; while, if the proof was immaterial, then no harm can be said to result from giving it, and in establishing that which the law presumed. The very effect, before the jury, of failing to disclaim any purpose of...