Turton v. New York Recorder Co.

• Decision Date: 11 December 1894
• Citation: 144 N.Y. 144,38 N.E. 1009
• Parties: TURTON v. NEW YORK RECORDER CO.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 144

38 N.E. 1009

TURTON

v.NEW YORK RECORDER CO.

Court of Appeals of New York.

Dec. 11, 1894.

Appeal from common pleas of New York city and county, general term.

Action by John Turton against the New York Recorder Company for libel. From a judgment of the general term of the court of common pleas for the city and county of New York, entered upon an order which modified and affirmed a judgment in favor of the plaintiff entered upon a verdict rendered at a trial term, defendant appeals. Affirmed.

In September, 1891, and for some years prior thereto, the plaintiff was a member of the firm of John Turton's Sons, doing business in the city of New York as exporters and dealers in rosin and turpentine. The plaintiff passed a part of each year in Savannah, Ga., looking after the interests of his firm there. In the afternoon of September 14, 1891, he, being then in Savannah, was informed by telegram that his firm was in financial difficulty, and was requested to come to New York immediately. He left that night, and was at his firm's office in the city of New York on the 16th, 17th and 18th days of September. On September 17th the defendant published in the city of New York, in the newspaper called the Recorder, the following article:

‘Savannah, Ga., Sep. 16.-John Turton, a well-known naval stores operator, has left the city with $8,500 of the Southern Bank's money. Turton drew on his New York firm on Monday through the Southern Bank, and the draft was not honored. Yesterday the New York house failed. Mr. Turton left Savannah on Sunday night, and, it is supposed, went to New York. He has been here for several years.’ On September 18th the plaintiff's firm failed, and made an assignment for the benefit of its creditors. The plaintiff, claiming that the article published was libelous, on the 30th day of September commenced this action to recover damages for the libel. The answer of the defendant, after some denials, alleged that ‘the general commercial and personal reputation of the plaintiff was such that he was not injured by such publication,’ and further alleged, in mitigation of damages, that the article was published without malice, and with the belief that the same was true in all respects; that it was received by the defendant in the form of a dispatch from a regular news agent in Savannah; that at the time the dispatch was received and published it had no acquaintance with or knowledge of the plaintiff or his firm, and had no feeling of malice or ill will towards him, or any member of his firm; that the article was published as an item of public news, without malice, believing the same to be true. The action was brought to trial, and the plaintiff recovered a verdict of $5,000. From the judgment entered upon the verdict, the defendant appealed to the general term, where the judgment was reduced to $3,000, and then appealed to this court.

William H. Stayton, for appellant.

Lawrence E. Embree, for respondent.

EARL, J. (after stating the facts).

It was claimed upon the argument before us that the alleged libelous article was of doubtful meaning, and not necessarily libelous per se, and that therefore there should have been an innuendo in the complaint alleging its meaning and application. If an innuendo was necessary, we find it in substance in the complaint, in which it is alleged that by reason of the publication the plaintiff has been ‘held up to the public, his business acquaintances, and friends as a thief, and a dishonest and untrustworthy man.’ But we do not think the article is ambiguous. It is to be construed as it would ordinarily be understood by people generally, and we think no person of ordinary ability and intelligence could fail to understand it to charge the plaintiff with dishonestly and wrongfully, if not feloniously, obtaining $8,500 of the Southern Bank's money, and going in the night with it, out of the state, to the city of New York. We think the trial judge did not err in holding that the article was libelous per se, and refusing to submit its meaning and application to the jury.

At the commencement of the trial, the defendant requested permission to amend its answer so as to set up a justification of the charge contained in the alleged libelous article. The plaintiff's attorney making no objection to such amendment, it was then stipulated that the answer might be deemed amended so as to set up a justification of the charge. Upon the trial, there was no evidence whatever impugning the good reputation of the plaintiff, but, on the contrary, his character and reputation were shown to be good. No proof whatever was given or offered upon the trial to sustain the plea of justification. On the contrary, it was proved by uncontradicted evidence that the plaintiff, at the time he left Savannah, did not have a dollar of the money of the Southern Bank, and that he never had had, and that he had never in any way wronged that bank. There was, therefore, nothing for submission to the jury but the question of damages, and all the objections made to evidence during the progress of the trial became wholly immaterial.

It is said that the trial judge, in his charge to the jury, gave an incorrect definition to the word ‘libel.’ That is wholly unimportant, as the article was, as matter of law, libelous. We think however, that the criticism of the counsel for the defendant upon the charge in that...