Sydney v. MacFadden Newspaper Pub. Corp.

• Decision Date: 02 March 1926
• Citation: 151 N.E. 209,242 N.Y. 208
• Parties: SYDNEY v. MacFADDEN NEWSPAPER PUB. CORPORATION.
• Court: New York Court of Appeals Court of Appeals

242 N.Y. 208

151 N.E. 209

SYDNEY

v.MacFADDEN NEWSPAPER PUB. CORPORATION.

Court of Appeals of New York.

March 2, 1926.

Action for libel by Doris K. Sydney against the MacFadden Newspaper Publishing Corporation. From a judgment of the Appellate Division (211 N. Y. S. 899, 215 App. Div. 653), affirming a judgment granting defendant's motion to dismiss the complaint, plaintiff appeals.

Judgments reversed, and motion to dismiss the complaint denied.

Pound, J., and Hiscock, C. J., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

John Burlinson Coleman, of New York City, for appellant.

Joseph Schultz, of New York City, for respondent.

CRANE, J.

This is an action for libel. The defendant published an article regarding the plaintiff which the lower courts have held, the Appellate Division by a divided court, not to be libelous per se.

The plaintiff is a married lady, the wife of Basil Sydney, whom she married in 1918. She is a well-known actress of reputation and standing, appearing upon the stage under her maiden name of Doris Keane. By marriage her name is Doris Keane Sydney.

On December 15, 1924, the New York Evening Graphic, owned by the defendant, published a photograph of the plaintiff, together with the following:

‘Doris Keane is, according to rumor, ‘Fatty’ Arbuckle's latest ladylove. Doris is pretty and ‘Fatty’ is cross, or was when some of those prying newspapermen attempted to interview him about the reported match. ‘Fatty’ dislikes publicity.'

And again:

‘Arbuckle to Marry? Maybe; Maybe Not.

‘Monterey, Cal., Dec. 15 (By United Press).-Maybe Roscoe (‘Fatty’) Arbuckle is going to marry Doris Keane and maybe he is not.

“Fatty' was noncommittal when interviewed as he served barbecue to Gouverneur Morris and Mrs. Morris and naother guest, said to have been Doris.

‘The one time funny man of the screen was all dressed up in a chef's costume, and performed merry antics for the picnic party yesterday at Point Lobos, when the newspapermen ‘horned in.’

“Maybe I am and maybe I am not. Meantime beat it while the beating is good and don't try to catch me in that black box or I'll do a movie comedy with this steak,' Fatty tenderly announced.

‘Morris chimed in with remarks about the newspaper persons butting in on a private party.

‘The identity of the fourth member of the partywas guarded, but little Doris had been visiting at the Morris home before the barbecue.’

As no special damage was pleaded, the plaintiff can only maintain her complaint, which alleged all the above facts by establishing that this article is libelous per se. O'Connell v. Press Publishing Co., 108 N. E. 556, 214 N. Y. 352, 358.

[2] Any written or printed article is libelous or actionable without alleging special damages if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace,or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society. Bennet v. Commercial Advertiser Ass'n, 129 N. E. 343, 230 N. Y. 125;Triggs v. Sun Printing & Pub. Ass'n, 71 N. E. 739, 179 N. Y. 144, 66 L. R. A. 612, 103 Am. St. Rep. 841, 1 Ann. Cas. 326. A publication is libelous per se where its tendency is to disgrace the plaintiff and bring him into ridicule and contempt. Morey v. Morning Journal Ass'n, 25 N. E. 161, 123 N. Y. 207, 9 L. R. A. 621, 20 Am. St. Rep. 730.

[4] To say of the plaintiff that she is Fatty Arbuckle's latest ladylove, and that Fatty was cross when the newspaper men interviewed him about the match, can have no other meaning than that Doris Keane (who is married) was the ladylove of Fatty Arbuckle, and that there was a reported ‘match’ between them. Such a statement must have the tendency to hold this married woman up to ridicule and contempt. Such conduct must have a tendency to disgrace a woman of fair repute in the minds of rightthinking people. The further statements in the article in the form of a query as to whether Arbuckle is to marry Doris Keane indicate that the word ‘match’ means an agreement to marry. Credence is given to the report by the statement that Doris Keane was reported to be present at Fatty's party when he was questioned about the matter. In substance, and in fact, the defendant has printed of the plaintiff, who is married, that she has become Fatty Arbuckle's ladylove; that it is reported that there is a match or an agreement to marry between them; and that she was present at his barbecue, when Fatty was questioned by the reporter.

According to some standards, all of this might have been considered quite a privilege and an opportunity for the woman. According to the ordinary standards, still I hope, in vogue among us, a married lady of good reputation would not so conduct herself, and if she did, the natural tendency would result in her disgrace. Such an article, when false, necessarily causes great humiliation and mental anguish.

It has been suggested that this article says nothing about Doris Keane being married. This is true. Neither does it say she is alive, or of age, or a woman capable of being married. It speaks of Doris Keane, and gives her picture. This draws with it all that Doris Keane is-her standing, her position in society, and her relationship in life. Such was the ruling in the Morey Case, above cited. The article there published was the following:

‘Refuses to be Reconciled.

‘A Rochester Society Belle Who Insists upon Being Married.

‘(Special to the Morning Journal.)

‘Rochester, N. Y. Oct. 19.-Upper tendom is highly excited over a threatened breach of promise suit against John E. Morey, Jr., a stockholder in the Union and Advertiser, and prominent in society circles. A prominent society belle will be plaintiff in the action. Morey and his friends are moving to effect a reconciliation, but the yound lady insists on his marrying her.’

This court said: ‘There can be no doubt that the publication is libelous per se.’ No special camages were alleged or proved. And yet, over the defendant's objection, the plaintiff was allowed to prove that he was a married man, Earl, J., speaking for the court, saying:

‘This proof was competent, not to show special damage, as none was alleged, but to show the circumstances surrounding the plaintiff, and as bearing upon the hurtful tendency of the libel, and the general damage to which he was exposed.’

To publish the following: ‘The Rev. Thomas J. Upton is a negro’ (Upton v. Times-Democrat, 28 So. 970, 104 La. 141); or ‘August M. Flood, colored, through attorneys, * * * filed suit yesterday’ (Flood v. News & Courier Co., 50 S. E. 637, 71 S. C. 112,4 Ann. Cas. 685), have been held to be libelous per se. On the face of these articles there is nothing libelous. It is not libelous to say a man is colored, if it be the truth. It becomes libelous because of the status of the person mentioned-that he happens to be a white man. This, of course, he has to allege and prove in order to make the article libelous and to recover. See, also, to the same effect Stultz v. Cousins, 242 F. 794, 155 C. C. A. 382 (6th Circuit).

So here in this case to say that Doris Keane is Fatty, Arbuckle's love, and is to marry him, is libelous, because Doris Keane, identified not only by name, but by picture, is a married lady, and cannot marry, or submit to such associations without disgrace.

[5] In Gates v. New York Recorder Co., 49 N. E. 769, 155 N. Y. 228, the defendant published regarding the plaintiff three days after her marriage that she was a ‘dashing blonde, twenty years old, and is said to have been a concert hall singer and dancer at Coney Island.’ This court held the article libelosu per se for the reason that people who read the article in the neighborhood where it was published knew that concert hall singers and dancers at Coney Island were a disreputable class. ‘To say that the words published of the plaintiff in the community where the character of the concert hall is well known...