134 N.Y.S. 670 | N.Y. Sup. Ct. | 1911
Defendant demurs to the first and second causes of action alleged in plaintiff’s second amended complaint for insufficiency.
In the first cause of action plaintiff alleges the false publication in defendant’s newspaper of an article which in effect stated that plaintiff’s wife had deserted her home in Hewark, H. J., at the same time that one Archer, an alleged forger, had disappeared from Hewark after indictments for forgeries had been found against him; that later the plaintiff’s wife wrote from Denver, Col., to .the plaintiff that she had been deserted and asking for forgiveness; that, plaintiff thereupon sent her money to enable her to return and that she thereafter returned to her home; that plaintiff’s wife disappeared a second time and later was heard from as being with Archer on the.Pacific Coast and there living with.him as his wife. It is further alleged, by way of innuendo, that defendant megnt it to be understood “ tha-t plaintiff was the
It will be observed that in the first cause of action the plaintiff attempts to plead a libel per se upon himself, and also a libel resting upon special damages sustained by him. I do not think that the facts alleged justify the conclusion •of a libel per se upon plaintiff. The husband’s forgiveness of an unfaithful wife and extending to her his aid and protection are acts of courage and manliness which will not be considered by right thinking men and women as holding him up to public scorn, contempt or infamy. The only case to which my attention has been directed by the plaintiff which to my mind at all approaches the question here discussed is Shelby v. Sun Printing & P. Co., 38 Hun, 474, where it was held that the publication of the plaintiff in the defendant’s newspaper that she was an illegitimate child was libelous per se. It was urged in that case, as it is here, that there was no charge made against plaintiff involving her morality, inasmuch as her illegitimacy was a circumstance over which she had no control. But the court properly recognized in that ease the unfortunate fact that in the estimation of mankind the assertion of illegitimacy of a person is a reproach, “ which might in all probability frequently subject the person of whom it is said to contumely, to indignity and perhaps to insult.” I cannot believe that the reputation, char
The second cause of action presents an entirely different question from that involved in the first. It is therein alleged that, by reason of the publication in question, the plaintiff’s wife “ was shocked and distressed and became and is now .ill and sick, and was and is now physically and mentally disordered and distressed, and for a long time was wholly unable to perform her duties as plaintiff’s housekeeper and as plaintiff’s wife, and is not now and * * * will not- for a long time to come he as well and strong and able to perform her said duties as before the printing, publication and circulation of said * * * article,” and that plaintiff has been deprived of the services and society of his wife, and was obliged to spend large sums of money in employing medical aid and attendance in her care and attempted cure.
The publication alleged is clearly libelous per se of the wife, and in an- action against the defendant she would he entitled'to recover as part of her general damage compensation for her mental suffering and distress of mind caused-thereby. Hamilton v. Eno, 16 Hun, 599; affd., 81 N. Y. 116; Ward v. Deane, 10 N. Y. Supp. 421; Palmer v. New York News Pub. Co., 31 App. Div. 210; Chasley v. Tompson, 137 Mass. 136; Cribbs v. Yore, 119 Mich. 237; Butler v. Barrett, 130 Fed. Rep. 944, 949; Butler v. Hoboken Printing & Pub. Co., 73 N. J. Law, 45.
In Butler v. Barrett, supra, where the publication charged that the plaintiff, a woman, had been convicted of theft com
The cases cited and relied upon by the defendant are readily distinguishable. Terwilliger v. Wands, 17 N. Y. 54, and Wilson v. Goit, id. 442, were actions to recover for slander in imputing unchastity to a female. Both of these actions arose prior to the enactment of the statute making the utterance of such words slanderous per se. The rationale of these decisions is simply that mental pain and distress and illness or loss of services resulting therefrom are not, standing alone, such special damages as are sufficient to support an action.
This principle is carefully limited in the foregoing cases to words which are not slanderous per se'. Where the words are of the latter character it is indicated that a different rule might apnly and recovery for such damages permitted as directly flow from the wrongful defamation. This distinction is clearly pointed out in Butler v. Hoboken Printing & Pub. Co., supra, where many authorities upon this question are reviewed.
The demurrer to the second cause of action is overruled, with costs, and with leave to answer upon the payment of costs.
Demurrer overruled, with costs, with leave to answer upon payment of coste.