126 N.E. 260 | NY | 1920
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *60 The plaintiff, Joseph E. Corrigan, has recovered a judgment against appellant for $25,000 damages in an action for libel. He is a city magistrate of the city of New York, of good standing as a man and a judge. Defendant is an Indiana corporation having its place of business and principal office in Indianapolis. It publishes books of fiction and has a New York office. The defendant George Bronson Howard, a writer of stories and plays, who was not served and did not appear in the action, wrote a sensational novel entitled "God's Man," of which appellant published upwards of ten thousand copies in the regular course of its extensive book business. The novel depicts, somewhat realistically, the adventures of one Arnold L'Hommedieu in New York's underworld and elsewhere and contains chapters entitled "Arnold's Adventures in Plunderland," "Sons of Subterranea" and the like. A chapter, which in the table of contents bears the caption "Justice — a la Corigan" but which in the body of the book is headed "Justice — a la Cornigan," brings the hero into Jefferson Market Court in the city of New York, a court in which plaintiff frequently sat as magistrate, and deals with the disposition of cases by the magistrate Cornigan. The inference from the unsavory details as related to the facts is unmistakably that the author Howard intended by this chapter deliberately and with personal malice to vilify plaintiff, under the barely fictitious name of Cornigan, in his *63 official capacity and to expose him to hatred, contempt, ridicule and obloquy as being ignorant, brutal, hypocritical, corrupt, shunned by his fellows, bestial of countenance, unjust, dominated by political influences in making decisions and grossly unfit for his place. A paragraph in another chapter entitled "The Gay Life," of like import, portrays the man Cornigan even more offensively, as an associate of low and depraved characters. No attempt was made by defendant to establish the truth of these allegations or any of them, and the only question here is whether plaintiff properly proved his case.
Defendant's first separate defense is that it published a supposedly fictitious narrative in good faith; did not know plaintiff and had no intent to injure him. This is not a complete defense. Even the Massachusetts rule as laid down in Smith v.Ashley (11 Metc. 367) holding the writer alone responsible in such a case, has been discredited by later decisions in that jurisdiction. (Hanson v. Globe Newspaper Co.,
"If the publication was libelous, the defendant took the risk. As was said of such matters by Lord MANSFIELD, `Whatever a man publishes, he publishes at his peril.'" (HOLMES, J., in Peck v.Tribune Co.,
The fact that the publisher has no actual intention to defame a particular man or indeed to injure any one, does not prevent recovery of compensatory damages by one who connects himself with the publication, at least, in the absence of some special reason for a positive belief that no one existed to whom the description answered. The *64 question is not so much who was aimed at, as who was hit.
"The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words." (Lord LOREBURN, L.C., in Hulton v. Jones, 1910, A.C. 20, 24.)
This rule is unqualifiedly applied to publications in the newspaper press, and is no different when applied to those who issue books. Works of fiction not infrequently depict as imaginary, events in courts of justice or elsewhere actually drawn or distorted from real life. Dickens, in "Pickwick Papers" has a well-known court scene of which Mr. Serjeant Ballantine says in his "Experiences" that Mr. Justice Gaselee "has been delivered to posterity as having presided at the famous trial ofBardell v. Pickwick. I just remember him and he certainly was deaf." Goldwin Smith, the distinguished historian and publicist, said of Disraeli's veiled attack upon him as "The Oxford Professor" in the novel "Lothair," that (Reminiscences, p. 171): "He afterwards pursued me across the Atlantic, and tried to brand me, under a perfectly transparent pseudonym, if `Oxford Professor' could be called a pseudonym at all, as a `social sycophant.' There is surely nothing more dastardly than this mode of stabbing a reputation." The power of Charles Reade's descriptions of prison life in "It's Never Too Late to Mend" and the abuses of private insane asylums in "Hard Cash" is undeniable, although the truth of some of his details was challenged. The novel of purpose, such as "Uncle Tom's Cabin," often deals with incidents and individuals not wholly *65
imaginary. Reputations may not be traduced with impunity, whether under the literary forms of a work of fiction, or in jest (Griggs v. Sun Printing Pub. Assn.,
The conventional way of putting the general rule is "that in a case of libelous publication, the law implies malice and infers some damage." (Byam v. Collins,
Plaintiff made out a cause of action for compensatory damages, but he did not rest his case on proof that the publication was "of and concerning" him and libelous. He went further and sought to prove something, not to be presumed as against appellant from the publication itself, that would justify the jury in giving him an additional sum by way of exemplary damages or smart money, based on an inference of actual malice or willingness to injure his reputation on the part of the appellant.
The distinction between the right to compensatory and punitive damages is clear. Actual injury to reputation must be paid for in all events. From an intent to injure, chargeable to defendant, follows the rule that exemplary damages, "a sort of hybrid between a display of ethical *66
indignation and the imposition of a criminal fine" (Haines v.Schultz,
Actual malice might be inferred as against the author from the falsity of the publication (Cohalan v. New York Press Co.,
Of course, as the trial justice said, "malice is malice," but it, unfortunately, has two distinct meanings in the law of libel from which two distinct burdens are imposed on plaintiff. It may mean "either actual malice or such malice as by legal fiction is presumed for the purpose of reconciling certain other rules in the law of libel." (HISCOCK, Ch. J., in Norske Ameriekalinje v.Sun P. P. Assn.,
Not content with resting his case upon the falsity of the publication and its obvious portrayal, with a venomous pen, of scenes, real or imaginary, before a magistrate in Jefferson Market Court — evidence from which a jury might, under the special circumstances of the case, have inferred indifference as to whether any one was injured or not (Warner v. PressPublishing Co.,
Evidence of a woman named Saville tends to connect Mr. Curtis, the defendant's vice-president, from whose New York office the advertising of the book was directed, with actual knowledge of a purpose to libel plaintiff, after he had read the book before publication. This witness recanted, and the best that can be said of her testimony, taken alone, is that it was unsatisfactory proof of knowledge on the part of Curtis of Howard's purpose.
Evidence of several witnesses connects intimately Bernhardt, the manager of defendant's dramatic department, *68
with Howard and the book. If Bernhardt acquired knowledge as to the nature of the publication while acting within the scope of his authority, on behalf of defendant, for its benefit, the defendant is chargeable with his knowledge, otherwise not. (Corporation of Glasgow v. Lorimer, 1911, A.C. 209.) Bernhardt had to do with sales and leases and other disposition of dramatic and moving picture rights for defendant based on its publications. His contract called on him to devote his "whole time, effort and attention" to the business of the dramatic department and to engage in no other employment whatever. He had a share in the net profits of his department and a personal interest in having books with dramatic possibilities published by defendant, with a view to their future use in his department, but it is not to be presumed that everything he did for Howard was done for defendant. He was not a manuscript reader for defendant. Others did that work for it. He aided Howard on the manuscript and galley proofs of the book not "during ordinary office hours" but at Howard's home in Port Jefferson on week end visits there. It does not appear that defendant ever intrusted him with that kind of work on its behalf. A jury might well infer that he knew that Howard was full of hate and bitterness toward plaintiff, due to his personal experience before the magistrate as defendant on a criminal charge. On one or more occasions, as witnesses testified, it was brought home to Bernhardt directly that Howard was getting even with plaintiff by means of his book, and that Bernhardt knew it was a serious libel but said that defendant was willing to take a chance for the sake of the publicity that might result. We fail to see how Bernhardt's acts, knowledge or declarations in this connection are chargeable to defendant. Publishing books or accepting or preparing books for publication, was not an incident of the defendant's dramatic department. It does not appear that anything that Bernhardt did or said in connection with the preparation *69
and publication of Howard's book was within the scope of his employment. The relation of the book to dramatic purposes before publication was remote and speculative. His acts and declarations had no connection with any transaction then being conducted by him with authority for his principal. Authority cannot be inferred from what he said and did, from the mere fact that he was in defendant's employ in a different capacity, even if it appeared that defendant's general officers knew that he was helping Howard, unless it could be inferred that it was asdefendant's agent that he was helping Howard. His knowledge was not acquired in defendant's business and therefore was not the knowledge of defendant. An employee of a publisher, not charged with reading manuscripts, might aid an author to prepare a libel and get it published and boast about his firm's connection with it without creating any reasonable inference that he was acting for his employer in that regard, so long as his knowledge was not communicated to his employer. While a corporation knows a fact only as its officers and agents know it, it does not know all that its agents know, but only what comes to them while acting for the corporation within the scope of their agency, when it is their duty to report their knowledge to the general officers or agents of the company, and it may be presumed that they have told the principal what they know. (Weisser v. Denison,
"To bring about this result two things must concur, viz., the possession by the agent of pertinent information and his personal participation in respect thereto on behalf *70
of the corporation." (Willard v. Denise,
Nor can it be said that defendant in any way consciously accepted the result of Bernhardt's assistance to Howard as having achieved anything that it sought to have accomplished, or from which it might have any benefit. What Bernhardt did for Howard was not done for defendant and was not for defendant's profit in any sense and was neither authorized nor ratified by it. There can be no ratification without knowledge or notice of the facts. (Smith v. Kidd,
Respondent urges that it is "past the bounds of belief" that Bernhardt had never reported his knowledge of Howard's purpose to appellant, or that appellant did not know that Bernhardt was working for it on the book. The inference that defendant was chargeable with such information is purely speculative and the jury may not thus bridge the gap between evidence and conjecture. (Kelly v. Nassau El. Ry. Co.,
The evidence of Bernhardt's knowledge of Howard's purpose to defame plaintiff was properly excepted to and should not have been submitted to the jury. The nature of such evidence was to aggravate damages by bringing Howard's purpose directly home to defendant, thus making it an active and conscious participant in the libel. *71
Howard was vindictive and if Bernhardt stood in defendant's shoes, defendant was chargeable with inexcusable malice, for it had not even the poor excuse of a personal grudge, and sought only financial gain. This line of evidence was dwelt upon at great length in the judge's charge and is given much importance on the trial and here. The trial justice fairly left the question to the jury to decide whether defendant was responsible for Bernhardt's knowledge, but the evidence was insufficient to present the question. (Matter of Case,
Another line of evidence must also be considered. The book is dedicated "to Hewitt Hansom Howland, The Second Father of this Book." The evidence which connects Howard and Howland must be carefully considered, for one may not assume the honor of parentage without some added responsibility for the offspring. Howland was defendant's literary editor and chief manuscript reader at Indianapolis, intimately familiar with the manuscript and in intimate correspondence with the author. What he knew, or should have known, of Howard's purpose was the knowledge of defendant. Although he was not authorized to accept a malicious libel for publication, if he did so in the course of his employment, intentionally or without proper inquiry, defendant is fully liable for his act. (Citizens Life Ass. Co. v. Brown,
1904, A.C. 423.) He made no investigation or inquiry about the motive of the Corrigan chapter, although he had it in his possession and had been over every page *72
several times before accepting it for publication. The tone and style of the libel were vituperative in the extreme. It was directed at the administration of criminal justice in a real court, in a manner tending to bring the court into disrepute without the slightest justification or excuse. Howland was indifferent as to that. The jury might be permitted to say that he was negligent and reckless in not a least seeking from Howard some information as to whether the author's diatribes were intended as mere generalizations or as offensive personalities, and, if the latter, whether they were fair criticism or malicious falsehood. (Crane v. Bennett,
Certain exceptions to defendant's requests to charge are also urged as error. In substance the requests are to the effect that plaintiff must establish malice as above defined in order to recover punitive damages. These requests were not read in the presence of the jury. They might, without error, have been charged as requested, but the principal charge, considered in its entirety, except as it submits to the jury the question of defendant's participation in Howard's purpose, fairly presents the principles of law applicable to the case. The refusals to *73 charge as requested having made no impression on the minds of the jury, may be regarded as mere abstractions on the record and cannot be said to have been prejudicial under the circumstances and "the letter and the spirit of section 1317 of the Code of Civil Procedure." (Cohalan v. New York Press Co., supra.)
The judgment must, therefore, be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., COLLIN, McLAUGHLIN and ELKUS, JJ., concur; HOGAN, J., votes for affirmance under provisions of section 1317, Code of Civil Procedure; ANDREWS, J., votes for affirmance.
Judgment reversed, etc.