Youmans v. Smith

• Decision Date: 08 June 1897
• Citation: Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265 (N.Y. 1897)
• Court: New York Court of Appeals Court of Appeals
• Parties: GEORGE W. YOUMANS et al., as Administrators of WILLIAM YOUMANS, Deceased, Respondents, v. SHERRILL E. SMITH et al., Appellants.

153 N.Y. 214

47 N.E. 265

YOUMANS

v.SMITH et al.

Court of Appeals of New York.

June 8, 1897.

Appeal from supreme court, general term, Fourth department.

Action by William Youmans against Sherrill E. Smith and others.On the death of plaintiff, George W. Youmans, administrator, was substituted.

This action was commenced in May, 1890, by William Youmans, a practicing attorney, residing in the village of Delhi, against the defendants, who published a newspaper and carried on a printing business at the same place, to recover damages for the publication of certain printed matter alleged to be a libel upon the plaintiff.The defendants, by their answer, admitted that they printed the matter in question, but denied that they published it, and alleged that whatever they did was privileged.On the trial it appeared that in November, 1888, one Richard Whigham had presented a petition to the general term of the supreme court, alleging that the said William Youmans had ‘for a long time been guilty of disreputable and unprofessional conduct, and corrupt and venal acts and practices,’ and asking that he be deprived of his right to practice law.Thirty-five specifications of assault and battery, perjury, defamation, malicious prosecution, dishonesty, oppression of clients and others, and the use of vile epithets towards neighbors, etc., were set forth, and supported by the affidavits of 18 witnesses.Mr. Youmans filed a denial, supported by the affidavits of 54 witnesses, and the court sent the matter to a referee, to take the proofs, and report the same at a later term.In preparing for the hearing before the referee, Calvin H. Bell, the attorney for the petitioner, prepared a list of ‘questions to be asked’ during the investigation, and taking it to the printing office of the defendants, in their absence, and without their knowledge, employed the foreman in charge to print 50 copies of the same, stating that ‘he wanted them printed for the purpose of handing a copy to each witness, to be used in the disbarment suit.’The copies were printed accordingly, and delivered to Mr. Bell, who paid for them, and neither of the defendants knew anything about the matter until afterwards.The questions, which were not published either in the newspaper or otherwise than as herein stated, were as follows: ‘Questions to be asked: From the speech of people, what is Mr. Youmans' general character in the community in which he lives?Good or bad?What is his general character for truth and veracity?Good or bad?What is his general character in respect to bearing false witness?Good or bad?What is his general character in respect to insulting, traducing, and villifying people?Good or bad?What is his general character in respect to the promotion of virtuous actions, good principles, and good conduct?Good or bad?What is his general character in respect to licentious, obscene, and vulgar conversation?Good or bad?What is his general character in respect to his attacking and doing bodily harm to people?Good or bad?Whilst you have known him, what has his influence as a lawyer been on the people where he resides?Good or bad?’Mr. Bell mailed a copy of the questions to various persons who were subpoenaed by him as witnesses in said proceeding, but, so far as appears, made no other use thereof.No evidence was given tending to show express malice on the part of the defendants or either of them.At the close of the evidence, the counsel for the defendants asked the court to direct a verdict in their favor, upon the ground that their action through their foreman was privileged; that they never published nor circulated any of the papers; and that the delivery of the copies to Mr. Bell, the attorney in the disbarment proceedings, for use therein, was a privileged delivery.The motion was denied, exception was taken, and the case submitted to the jury, who found a verdict in favor of the plaintiff for the sum of $1,000.Upon appeal to the general term (25 N. Y. Supp. 1130), that court affirmed the judgment rendered at the circuit, and the defendants now come here.Reversed.

Edwin Countryman and W. H. Johnson, for appellants.

Geo. W. Youmans and Charles L. Andrus, for respondent.

VANN, J.(after stating the facts).

The appellants do not deny that the jury could lawfully find the words in question to be libelous, but they contend that they were not published, within the meaning of the law relating to the subject, and that, even if published, they were privileged.An action to recover damages for libel cannot be maintained upon proof simply that the libelous words were composed, and were in existence as written or printed matter, without being known to any one except the author and the victim.Unless communicated to some third person, no damage, either actual or presumed, can result.As said by a learned author: ‘Until the publication, the act is not complete in its mischief.Before it is dispersed abroad, it can produce no present or actual injury, either to the public or the individual, and until then there is a locus penitentiae on the part of those concerned in the composing and writing.’Holt, Libel, 281.Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually follows.He who furnishes the means of convenient circulation, knowing or having reasonable cause to believe that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication, and becomes the instrument of the libeler.Trumbull v. Gibbons, 3 CityH. Rec. 97;Rex v. Burdett, 4 Barn. & Ald. 95, 143; Rex v. Clerk, 1 Barnard.304;Baldwin v. Elphinstone, 2 W. Bl. 1037;Rex v. Paine, 5 Mod. 105, 107;Bish. Cr. Law, § 927;Townsh. Sland. &L. §§ 104, 115; Hall, Libel, 293;2 Starkie, Sland. &L. 225;Odgers, Sland. &L. *157; Flood, Libel, 46; Cooke, Defam.138.It is very clear from these authorities that as the defendants, through their agent, printed the libel, and delivered the printed copies to the author, knowing that he intended to submit them to various persons to be read, they became liable as publishers from the moment that any third person read the libelous matter, provided the words were not privileged.

The question of privilege is not so easily disposed of, not because the law relating to the subject is unsettled, but because its application to a novel state of facts is somewhat difficult.The law governing the privilege of parties and their counsel, so far as applicable to the case in hand, was well stated by Judge Grover in Marsh v. Ellsworth, 50 N. Y. 309, 311, as follows: ‘A counsel or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words and writings are material and pertinent to the questions involved.* * * Within such limit, the protection is...