TEX SMITH, INC., v. Godfrey

• Decision Date: 18 January 1951
• Citation: TEX SMITH, INC., v. Godfrey, 102 N.Y.S.2d 251, 198 Misc. 1006 (N.Y. Sup. Ct. 1951)
• Parties: Tex Smith, the Harmonica Man, Inc., et al., Plaintiffs,<BR>v.<BR>Arthur Godfrey et al., Defendants.
• Court: New York Supreme Court

198 Misc. 1006

Tex Smith, the Harmonica Man, Inc., et al., Plaintiffs,

v.Arthur Godfrey et al., Defendants.

January 18, 1951.

Walter R. Barry, Alexis C. Coudert and Charles Hodgkins for defendants.

Robert S. Ratner and Raphael P. Koenig for plaintiffs.

STEUER, J.

The corporate plaintiff sells a ukelele for $2.99, which activity it advertises widely. The individual plaintiff is its chief stockholder. The individual defendant is a radio and television performer and the corporate defendant operates radio and television stations over which the matter to be referred to was broadcast. On April 11, 1950, the individual defendant, on a television broadcast produced one of plaintiff's ukeleles and made some remarks concerning it. While the plaintiff's name was not mentioned, the price was, and as the complaint alleges that plaintiff was the only producer at that price and was well known on account of it, no point is made on this motion that plaintiff was not referred to and that the listening audience so understood.

The complaint sets out the exact words of the individual defendant but as they are extensive, repetition would be inconvenient as well as needless. The fair purport of the remarks follows. Three different makes of ukeleles were exhibited. The first was stated to retail at about $11 and was described as a good instrument. The second, retailing at about half that price, was stated to be suitable for learning to play and for beginners in the art. Third, plaintiff's was inferred to be unsuitable for either study or performance. It was pointed out that there were no frets but merely a painted line to indicate the fret. The tone was illustrated to indicate its poverty. The opinion was expressed that to sell the instrument as a ukelele might not be contrary to law but that people who did it should be jailed. The conclusion is that no one should be deceived into buying it.

The first cause of action is against the individual defendant, the third against the corporation. The fourth is against both for a radio rebroadcast of the same remarks. The second is in favor of the individual plaintiff against both defendants. The motion is to dismiss the complaint or in the alternative each cause of action for failure to make out a cause of action.

The gist of the motion is the claim that the words used are not actionable, or in other words, not slanderous per se. While the progressive development of the law of defamation discloses a field in which general statements can rarely be made without challenge, there are a few principles concerning...