134 N.Y.S. 847 | N.Y. App. Div. | 1912
The dissenting opinion
The precise and only point decided was, that it was prejudicial error to allow the plaintiff to make a general attack
Counsel do not specify the points upon which they desire an
1. We did not pass upon the first question for the reason that the plaintiff tried the case on the théory that the alleged publication was presumptively privileged, and argued in the brief submitted to this court that the facts upon Which the claim of privilege rested, being in dispute, the question was for the jury. However, on a new trial the plaintiff may take the view expressed in the dissenting opinion, and if we are to undertake the task of outlining our views on the questions in the case before they arise we may as well do it thoroughly. I shall discuss the question under the fourth head, with which it is related.
2. We did not discuss the second question for the reason that counsel defended the refusal to charge on the ground that the request was not germane to any issue in the case, because the plaintiff had not undertaken to recover damages for injury to his interest in Collier's Weekly. But, inasmuch as we do not agree with the view expressed in the dissenting opinion, that the plaintiff is entitled to recover in this suit damages for' such injuries, a brief statement of our views may save a repetition of the error on a new trial. . The cases cited (Tobin v. Best Company, 120 App. Div. 387; Rosenwald v. Hammerstein, 12 Daly, 377; Constitution Publishing Company v. Way, 94 Ga. 120; Willis v. Jones, 13 App. Cas. [D. C.] 482) do hold that where a defamatory article libels both a copartnership and its members individually -— in other words, when it is libelous per se — the individuals may sue separately for their individual damages, but they do not hold that each may recover in separate suits the damages caused to him “ as a member of the firm,” though there is an expression in the per curiam memorandum
3. With respect to the third point, there is a defect in the proof, which we assumed was due to the fact that counsel was taken by surprise at the trial, but which a majority of us
It is quite generally stated by text writers, and there are many dicta in judicial opinions to the effect, that it is permissible to prove the publication of the same or similar words either before or after the publication complained of. As qn independent proposition any evidence is relevant which tends
The decisions in this State appear to be equally inconclusive on the precise point. In Inman v. Foster (8 Wend. 603) it was decided in deference to authority that evidence could be given of slanderous words spoken more than two years before suit
Was the article complained of presumptively privileged? There can be no doubt that the occasion was privileged. The general rule is ¡stated in Ashcroft v. Hammond (197 N. Y. 488). The defendant had the right to repel the attack upon it and to retort upon its assailant, in case such retort was a necessary part of its defense or fairly arose out of the charges made against it. (Odgers Lib. & Sland. 228.) The defendant plainly had the right to characterize the plaintiff’s charges as false, and mere vehemence, even exaggerated statement, will not as matter of law destroy the privilege ¡or necessarily present a question of fact (Taylor v. Hawkins, 20 L. J. [N. S.] Q. B. 313; Spill v. Maule, L. R. 4 Ex. 232; Laughton v. Bishop of Sodor & Man, L. R. 4 P. C. App. 495; Dwyer v. Esmonde, L. R. 2 Ir. 243), though of course the language of a retort may be so intemperate or violent as to be of itself evidence of malice.
The important question is whether the defendant had the right to impugn the motives of its assailant, if it did so honestly without malice and for the sole purpose of repelling the assault upon it, and not with the view of injuring the plaintiff. One Who makes a public attack upon another subjects his own motives to discussion. It is a contradiction in terms to say that the one attacked is privileged only to speak the truth and not to make a counter attack, or that legitimate self-defense consists only in a denial of the charge or a statement of what is claimed to be the truth respecting its subject-matter. One in self-defense is not confined to parrying the thrusts of his assailant Of course, the counter attack must not be unrelated to the charge, but surely the motives of the one making it are pertinent. The plaintiff selected the forum for the dispute and in that forum it would certainly tend to repel, or minimize the harmful tendency of the charges to show that the one making them was actuated by an, improper motive.
We think, therefore, that the plaintiff’s trial counsel was right in thinking that the alleged libelous article was presumptively privileged and that the burden was on the plaintiff to prove both falsity and actual malice. We shall not discuss the evidence bearing on these questions further than to say that we think they were plainly questions for the jury. Of course the language of the article and the extent of its publica
The motion should be denied, with ten dollars costs.
Ingraham, P, J., and Scott, J., concurred; Laughlin and Dowling, JJ., dissented.
Motion denied, with ten dollars costs.
See 149 App. Div. 146.— [Rep;