Green v. Telfair

20 Barb. 11 | N.Y. Sup. Ct. | 1854

By the Court, Harris, J.

If seems to have been assumed upon the trial, that the article published by the defendant, if it was intended to apply to the plaintiff, was libelous. The plaintiff had expressly averred that it was published of and concerning himself. He had proved some facts tending to sustain that averment. Whether or not the matter contained in the publication was libelous, was/ indeed, a question for the decision of the court, but if libelous, it was for the jury, and not the court, to say whether it was applicable to the plaintiff'.

The allegation in the article which constitutes the alleged libel is, that the pauper mentioned died from the want of proper care and attention. The charge implies that somebody had been guilty of culpable neglect. Who it was that had been thus guilty, cannot be ascertained from the article itself. The judge was right, therefore, when he said that “ the article did not point to any individual in particular.” Ho one by reading the article, without the knowledge of any other facts, would suspect that it was intended to censure the plaintiff, more than any other person. Yet the plaintiff insists that the charge of neglect, contained in the publication, was aimed at him, and at no one else. To show this, he resorts to facts which do not appear upon, the face of the alleged libel. He shows that he was the keeper of the establishment in which the pauper was alleged to have frozen to death—that its government and general superintendence was committed to him—that by the rules and regulations which had been adopted by the superintendents of the poor for the government of the house, it had been declared to be his duty as keeper to provide seasonable and kind attention for the sick and infirm, and to make them comfortable. Upon such evidence the plaintiff claimed to have the case submitted to the jury upon the question whether, when the defendant published the article, he did not intend to impute to the plaintiff the blame of having, through neglect, caused the death of Mrs. Southard. I think the facts proved were sufficient to carry the cause to the jury upon that question. What their verdict might have been, it is unnecessary to conjecture. It is enough, upon the present occasion, to see that the evidence in the case was such as would have warranted the jury in finding that the censure, so clearly implied in the article published, was intended for the plaintiff.

The province fo the court as well as the jury, in cases like this, was clearly defined in Van Vechten v. Hopkins, (5 John. 211.) In that case, it was charged in the alleged libel, that certain leading federalists had entered into a corrupt coalition with the friends of Morgan Lewis to elect the latter governor. There was nothing upon the face of the publication from which it could be seen that the plaintiff was one of the parties intended. But the plaintiff had averred that the publication was made of and concerning himself, as well as other citizens of the state belonging to the political party denominated federalists, and, to show that he was intended, he had stated in his declaration, and proved upon the trial, certain facts which did not appear upon the face of the alleged libel. The cause was tried before Mr. Justice Spencer, who decided, as the learned judge who presided at the trial of this action decided, that the libel itself did not afford sufficient evidence that the plaintiff was intended. A-new trial was granted, upon the ground that the judge at the circuit had erred in not submitting it to the jury to say, from all the evidence in the case, whether it was not intended to charge the plaintiff as being one of the parties to the agreement set forth in the publication. “ The averment of extrinsic matter in this declaration,” said Van Ness J., in delivering the opinion of the court, “ was for the purpose of showing that the libel was published, as it is expressly alleged to have been, of and concerning the plaintiff. And whether it was so published or not, is a question of fact, which it is the province of the jury and not of the court to decide." And again he says, “ There are cases in which, as in the case now under consideration, the words in themselves amount to .a libelous charge upon some particular person, but where that person is so ambiguously described as that without the aid of extrinsic facts, his identity cannot be ascertained, but where, by the introduction of proper averments and a colloquium, the words may, notwithstanding, be rendered sufficiently certain to maintain an action. The certainty is arrived at by taking into consideration both the extrinsic facts stated in the averments and colloquium and the whole of the libel, all of which must be submitted to the jury, urider the direction and charge of the judge, as in other cases.” (See also 1 Am. Leading Cases, 3d ed. 138.)

[Albany General Term, September 4, 1854.

Upon the ground, therefore, that it was error to withhold from the jury the decision of the question as to the application of the article published by the defendant, I am of opinion that there should be a new trial.

Wright, Harris and Watson, Justices.]